Duty of fair representation complaint – Section 37 of the Canada Labour Code

You have 90 days to file a complaint following the date on which you became aware of the situation leading you to file a complaint.

2.1 On what date did you become aware of the situation leading you to file this complaint?

The Board may allow you to file a complaint after 90 days in exceptional circumstances. For example, if serious health problems prevented you from filing your complaint.

If you file your complaint after 90 days, you must explain why you were not able to meet the deadline and provide documentation to prove it. The Board will consider your explanation and the time that has passed since the 90 days expired to make a decision.

However, note that the Board has the power to agree or refuse to process your complaint if it was not filed within the time limit.

If your complaint is about something other than a grievance, proceed to Step 4.

4.1 If the complaint relates to rights under your collective agreement, indicate which section of the agreement it applies to. If the complaint does not relate to rights under a collective agreement, go to 4.2

The Canada Labour Code provides that a union can defend an employee’s rights only if they are related to their collective agreement. When you file a complaint, you must demonstrate that the rights you are seeking to enforce are covered by your collective agreement.

4.2 Explain why you believe your union has engaged in arbitrary, discriminatory or bad faith conduct

What was your union’s conduct?

If you are filing a duty of fair representation complaint, it is because you believe your union has breached its duty by engaging in arbitrary, discriminatory or bad faith conduct.

If you are not sure which option to check or if you need more information on your union’s obligations, consult the McRaeJackson decision. It defines arbitrary, discriminatory or bad faith conduct and gives several examples, especially at paragraphs 13 to 46

Here are some examples of arbitrary conduct:

• You reported a problem and your union did not investigate or ask for your version of the events
• Your union is negligent in representing you or does not pay enough attention to your interests as an employee.

Note that a union has the right to make mistakes, and that a decision that negatively impacts one or more employees is not necessarily arbitrary.

Here are some examples of discriminatory conduct:

• Your union is not properly representing you because of your age, skin colour, religion, gender, or medical condition.
• Your union is treating one or more employees differently from others for no valid reason.

Different treatment is not always discrimination. A union may choose to treat situations differently because of the circumstances, or to be fair.

Here are some examples of bad faith conduct:

• You had a personal disagreement with a union representative, and they let that disagreement influence their decision about a complaint you filed.
• Your union abused your trust or was dishonest.

Explain what happened

Describe all the events that led to you filing a complaint against your union. Your description of events should convince the Board that your complaint is legitimate and based on facts. If it does not, the Board may dismiss your complaint without asking for any submissions from the union. List the events in chronological order (from oldest to newest). Be specific and detailed. Among other things, please include:

• what happened that led you to seek the assistance of your union
• what your employer did (for example, disciplined you or terminated your employment)
• what you asked your union to do (for example, file a grievance)
• what your union did
• the names of the union representatives involved
• the names of witnesses (if any).

Describe the events on the lines below. If you need more space, you can add pages to this section. Number them and mention below that the rest of your explanation is on additional pages.

If you are attaching supporting documents to this form, list them in the table provided at Step 6. You may refer to them in your explanation using the names indicated in the table (Document 1, Document 2, etc.).

Explain your reasoning

Explain why you believe the union’s conduct is arbitrary, discriminatory or in bad faith. In making its decision, the Board will assess whether your union dealt with your request objectively and methodically. It will consider whether your union took your request seriously, how it investigated the situation, and the steps it took to resolve it.

If you need more lines, you can add pages to this section. Number them and mention below that the rest of your explanation is on additional pages.

5.1 You can request measures be taken against your union, not your employer. What would you like the Board to do?

The Board can require the union to restore your right to fair representation or help you restore it yourself. You can ask for two (2) types of measures:

1. Require your union to meet its obligations, such as requiring it to file a grievance or renegotiate wages, pensions or insurance.
2. Require your union to help you restore your rights, without representing you. For example, by paying for an outside representative of your choice.

You must include all relevant documents in your possession to support your complaint and the information that you provided in this form. Here are examples of documents to attach to your complaint:

• any exchanges you have had with union representatives (letters, emails, etc.)
• the termination letter or other disciplinary letter
• a copy of the sections of the collective agreement under which the union was supposed to represent you
• a copy of the grievance and any responses to it from your employer

In the table below, list all the documents you are attaching to this form starting with the oldest and provide the date and a short description for each one (for example, "Letter of dismissal" or "Email exchange with John Doe").