Duty of Fair Representation
As per Manitoba Labour Relations Act s.20
Every bargaining agent which is a party to a collective agreement, and every person acting on behalf of the bargaining agent, which or who, in representing the rights of any employee under the collective agreement,
- in the case of the dismissal of the employee,
- acts in a manner which is arbitrary, discriminatory or in bad faith, or
- fails to take reasonable care to represent the interests of the employee; or
- in any other case, acts in a manner which is arbitrary, discriminatory or in bad faith;
- commits an unfair labour practice.
The duty of fair representation does not impose an absolute duty on a union to carry every grievance filed by an employee to arbitration.
Where a grievance lacks merit, or where the interests of the individual must yield to the greater interests of the group, a union must be free to settle or drop a grievance.
The standards of a professional advocate are not to be imposed on union officials.
- A union must put its mind to the merits of a grievance and attempt to engage in a process of rational decision-making.
- A union must take a reasonable view of the problem before it, and arrive at a thoughtful judgment about what to do, after considering the various relevant and conflicting considerations.
- A union’s lack of investigation of, or superficial handling of, an employee’s complaint will violate the duty of fair representation.
- A union must not discriminate or distinguish in treatment between any members of a bargaining unit, unless for legitimate reasons.
- A union acts in bad faith when its conduct is motivated by ill-will, hostility, dishonesty or sinister purpose.
- A union may violate the duty of fair representation through acts of serious negligence, but the standard of care required will be varied according to the seriousness of the consequences and the nature of the job interest at stake.
On matters of critical job interests
On matters of critical job interests (dismissal), a high degree of recognition of individual rights will prevail in duty of fair representation complaints.
- Manitoba’s duty applies only to contract administration, not contract negotiation.
- The complaint must be filed, in writing, with the Labour Board. There are no specific time limits but the Labour Board can dismiss a complaint for “undue delay”. (LRA s.30)
- The employer will be named as a party in duty of fair representation complaints, and a Board may direct the employer in any remedy ordered.
Where compensation is a remedy for a breach of the duty of fair representation, and the union has caused the employer’s damages to be greater by reason of its breach of the duty, the union will be liable for that portion of the damages.
The Employer will normally remain liable for the portion of the damages, which it would have had to pay had there been no breach of the duty.
The supreme Court of Canada has ruled that unions cannot be sued in the courts for breach of DFR where there is legislation allowing employees to complain to a labour tribunal.
In addition to negotiating collective agreements for better salaries, benefits, and working conditions, the Manitoba Nurses Union (MNU) represents nurses' issues and grievances against employers who are in violation of the collective agreement.
Prior to unionization, nurses had few rights or avenues for recourse. The grievance and arbitration process protects the nurse by providing the opportunity of a fair hearing and the right to grieve an unjust situation.
The MNU represents numerous nurses in grievances each year, and settles many more before they reach the grievance stage. If the complaint cannot be resolved through the steps of the grievance, the MNU is able to refer the matter to an arbitrator, who will provide a final and binding decision on the grievance. The decision to refer the matter to arbitration rests solely with the MNU, and occurs after a thorough examination of the facts.
You can find out more about filing grievances by logging into the Member Portal and consulting the MNU Handbook (Section H. Grievances). But for now, here is a quick overview of the three main types of grievances.
The most common types of such grievances are those involving discipline, termination of employment, improper layoff, or denial of a benefit. It is an individual grievance as only one person is affected, and so the grievance is filed in the name of the individual.
A group grievance is a complaint that a group of individuals has been affected in the same way, at the same time, by an action taken by the employer. For example, the employer unilaterally decides to reclassify a group of Perinatal Nurses to a lower paying classification, without a corresponding change in job function. It would likely be more practical to grieve the matter as a group rather than filing a number of individual grievances.
Union (Policy) Grievance
A Union (policy) grievance is a complaint by the Union that an action of the employer is in violation of the Collective Agreement that could affect all who are covered by that agreement. For example, management posts a policy stating that no one will be permitted to take vacation between December 15 and January 15. The Union might grieve because the Collective Agreement contains no such limitations and further, the employer is required to give individual consideration to each vacation request.