Labour Relations - Duty of Fair Representation

Table of contents

    Under the Canada Labour Code, an employee can file a complaint with the Canada Industrial Relations Board if they feel that they have not been fairly represented by their union.

    What is the duty of fair representation?

    • Unions must represent employees fairly in relation to their rights under the collective agreement that applies to them.   
    • This means that the union cannot treat the employees it represents in a way that is arbitrary, discriminatory, or in bad ​​​​faith when advancing their complaints or grievances against their employer.

    Who can file a duty of fair representation complaint?

    • You can file a complaint against your union if you feel that the union did not represent you fairly when it made its decision with respect to your rights under the collective agreement that applies to you. 
    • Your employer or former employer must be a federally regulated business.
    • The collective agreement establishes the terms and conditions of employment for the employees that it covers. It is negotiated by the union and the employer during collective bargaining. 

    Who is involved in the complaint process?

    • Employee (You) – also called the “complainant.” 
    • Your union – also called the “respondent.” 
      • Together, the complainant and the respondent are the “parties.”
    • Your employer is an interested party in a duty of fair representation complaint. It will receive notice of the complaint from the Board. It can file a response if it wants to participate in the complaint. 
    • An Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here
    • The Board – The Chairperson of the Board will appoint themself or a Vice-Chairperson to hear the complaint. In some cases, a management-side member and a union-side member will also be appointed to hear the complaint with the Chairperson or Vice-Chairperson.

    Can I be represented by someone else?

    • Yes, each party can be represented by the person of their choice.
    • The Board does not provide lawyers to assist parties.  
    • The Industrial Relations Officer (IRO) working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
    • The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
    • It is important that you attend any case management conferences that the Board organizes.  These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.

    When can a complaint be filed?

    • Complaints must be filed with the Board within 90 calendar days of the date that the ​​complainant first knew, or should have known, of the actions of the union leading to the complaint.  
    • If you file a complaint after the 90-day period, you must ask for more time to file the complaint, and explain why it was not filed within the 90-day period. The Board may not accept the complaint.

    How do I file a complaint?

    • It is strongly recommended that you use the Board’s Duty of Fair Representation complaint form to file your complaint. The form contains the information that the Board needs to make its decision, and helps you make sure that the information that you are filing is complete.
    • If you do not file all the information that the Board needs, it will take the Board longer to process your complaint. 
    • In some cases, not filing all the information that the Board needs can result in your complaint being dismissed without the opportunity to make any further submissions.
    • All documents, including complaints and all supporting documents are filed using the Board’s E-filing Web Portal. This is the fastest and most accurate way to file documents with the Board.  
    • You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.   

    What other information or documents do I need to send to the Board?

    • In duty of fair representation complaints, it is the complainant’s responsibility to prove that the union’s action or decision was arbitrary, discriminatory, or in bad faith.   
    • An action or decision may be arbitrary if the union acted without thoroughly investigating the complainant’s concern or grievance.   
    • An action or decision may be discriminatory if the union treated someone differently because of their race, religion, age, sex, or sexual orientation.   
    • An action or decision may be in bad faith if the union acted with an improper purpose. For example, the union cannot make decisions based on its personal dislike of an employee. 
    • You are responsible for providing the Board with the information and documents that are relevant to your ​​complaint. The Board’s Duty of Fair Representation Complaint Form walks you through all the information the Board needs. It is recommended that you use it to file your complaint.
    • You should also file a copy of the collective agreement that applies to you, along with any relevant grievances and any emails and notes on the subject. Again, the Board’s Duty of Fair Representation Complaint Form walks you through all the information that the Board needs. It is recommended that you use it to file your complaint.
    • In duty of fair representation complaints, the Board’s practice is to consider the complaint before asking the union and the employer for a response. The Board will look at whether, if everything you say is true, the complaint has a chance of success. If not, the complaint will be dismissed. This is why it is so important that you make sure your complaint is complete.

    What happens when the Board receives my complaint?

    • After you file your complaint, you will receive a letter from the Board acknowledging receipt of the complaint. The letter will also be sent to the union and to your employer.
    • The Acknowledgment of Receipt letter notifies the parties that the complaint is being sent to the Board for a preliminary decision. 
    • In duty of fair representation complaints, the Board’s practice is to consider the complaint before asking the union and the employer for a response.  
      • The Board reviews the facts set out in the complaint to answer the following question: Do the facts show that the union acted in an arbitrary, discriminatory, or bad faith manner? 
    • Therefore, the complainant must provide enough information so that the Board can see what the union did specifically and determine whether the union acted inappropriately. 
    • If your complaint does not contain enough information to pass this test, it will be dismissed without requiring the union or the employer to respond. 
    • If your complaint passes this test, the union and the employer will be asked to respond to it. They will be given 15 calendar days to file their responses.
    • After the union and the employer file their responses, you will have 10 calendar days to file your reply. 
    • Please visit our section on the hearing process for more information.

    How do I file my documents, representations, or evidence?

    • All complaints, applications, responses, replies and supporting documents are filed using E-Filing Web Portal.  This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board. 
    • Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.  
    • When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.

    Is the information in my file confidential? 

    • Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public. 
    • If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case. 

    Will there be mediation?

    • Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
    • The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
    • For more information on the mediation process, please click here

    Will there be a hearing?

    • Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing. 
    • If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a case management conference. 
    • For more information on the Board’s hearing process, please click here.

    When will I get the decision?

    • The Board will notify you in writing of its decision.  
    • The time that it takes the Board to issue a decision can vary depending on the complexity of the case. 
    • All important decisions of the Board are published on the Decisions page. 
    • You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint is filed.

    What can the Board order if the complaint is successful?

    • If the Board finds that the union breached its duty of fair representation, it may order the union to: 
      • file a grievance on your behalf; 
      • take your case to arbitration even if timelines have passed; 
      • pay your legal costs for an independent lawyer at arbitration; 
      • pay a portion of any arbitration award an arbitrator may grant; and 
      • anything else that is deemed equitable. 

    What can I do if I do not agree with the decision?

    • There are two possibilities:   
      • You can file an Application for Reconsideration with the Board; or 
      • You can file an Application for Judicial Review with the Federal Court of Appeal.   
    • In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.   
    • Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.