When a unionized employee has to settle a problem with his employer, his only recourse is to refer to the union. In this case, the union will submit a grievance on his behalf and the process indicated in the collective agreement will take place. When the union’s decision is not in favour of the employee or not what he had wished for, there is an element of dissatisfaction that is created, which is generally followed by a sense of frustration towards the union.
What happens if a unionized employee is unsatisfied with the way the union handled his case and sees that he’s been misrepresented?
The union’s exclusive right of representing their members has a pendant to it which is established by article 47.2 of the Labour Code. This article has established a framework of proper representation by the union. The objective of this obligation lies in the will to protect the employee who has no other options other than referring to his union to settle the conflict with the employer. According to this article, the union shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence. If the employee believes that the union has violated this article they can submit their complaint before the Administrative Labour Tribunal (the “Tribunal”).[1]
Bad faith refers to a fraudulent or hostile behaviour and presumes the union’s intention to harm. An arbitrary behaviour refers to a superficial handling of the employee’s complaint whether it is voluntary or involuntary. Discrimination implies the fact of unjustifiably disadvantaging an employee. Finally, gross negligence refers to the act of a significant error whether it is with or without an intention to harm.[2]
Glancing at the decisions rendered under article 47.2 of the Labour Code, we can easily detect how difficult it is to prove that the union has breached its obligation under this article. The employee has an uphill battle to prove that he has not been adequately and justly represented by the union.
Notably, the Tribunal will not rule on the grievance itself (as this relies upon the arbitrator)[3] but will analyze the facts to see whether there has been a breach or not of the union’s obligation. If the union demonstrates having taken the necessary steps, one can actually say, minimal steps regarding the grievance, then mission accomplished.
According to case law, the Tribunal takes into consideration different factors:
- The size of the union and the means and resources available;
- The experience and the background of union representatives;
- The importance of the grievance and the consequences on the employee (i.e., loss of job, etc.);
- Grievance’s chances of success;
- The competing interests of other employees in the bargaining unit; and
- The absence or insufficient collaboration of the employee who submitted the grievance.[4]
These factors are often ignored, especially the one regarding the employee’s collaboration who does not realize that his contribution in the grievance process is essential. The employee has to know that he has a role to play and that this role is crucial in determining whether or not the union has fulfilled its obligation. This collaboration is a counterpart to the obligation of just representation by the union. Therefore, the fact of not collaborating with the union can entail dismissal of the employees file before the Tribunal.[5]
Although 2023 just started, case law has not missed to confirm this principle. Decisions rendered in January 2023 still indicate that different evidences are necessary to demonstrate a breach of a union in its representation as well as reiterating the importance of the employee’s collaboration in the process.[6] Article 47.2 of the Labour Code can appear from the face of it to be simple in finding evidence of misrepresentation; however, it is not as simple as it seems.
Having said that, it is not a lost cause or a hopeless case, but the unionized employee has to be aware of the reality and know that in order to win this type of cause, he has work to do either on the evidence front or with regard to his level of collaboration. In conclusion, the union has an obligation to act diligently and seriously analyze the requests made by employees they represent.[7] In light of the case law, whether past or present, we can say that when it comes to the actions of the union, a little goes a long way.
[1] Article 47.3 of the Labour Code.
[2] La représentation d’un syndicat : devoir ou obligation? Article par Louise Briand, Vice présidente du secteur universitaire (FP-CSN), 19 décembre 2018
[3] Devoir syndical de juste représentation, publié par le Tribunal administratif du travail
[4] Id.
[5] Id.
[6] 2023 QCTAT 209, 2023 QCTAT 55 et 2023 QCTAT 210 (interlocutory judgment)
[7] Note 2.
As part of her litigation practice, Nadia has appeared before civil and administrative tribunals both in provincial and federal matters. She is also invited to conduct workshops on subject matters including psychological and sexual harassment in the workplace as well as elderly protection against abuse.
Nadia Samy est une avocate pratiquant au Québec. Elle conseille et représente les clients dans différents secteurs du droit du travail et de l’emploi, notamment, en matière de contrats individuels de travail, de conventions collectives, de congédiement injuste, de harcèlement en milieu de travail, des sanctions disciplinaires, etc. Dans le cadre de sa pratique en litige, Nadia a plaidé des causes devant les tribunaux civils et administratifs au niveau provincial et fédéral. Elle est aussi conviée à animer des conférences sur des sujets en matière de harcèlement psychologique et sexuel en milieu de travail ainsi que la protection des aînés contre la maltraitance.
- Quand peu d’effort suffit - January 30, 2023
- A little goes a long way - January 30, 2023
- Une liberté commence, l’autre s’arrête - November 23, 2022
