We are often contacted by employees who are members of unions that are looking for assistance to better understand their legal rights or feel that the union is not representing them fairly. Lawyers outside of the union can generally only play a limited role in assisting individual unionized employees with a few exceptions as set out below.

What does it mean to be in a union?

Employees who are members of a union do not have individual employment rights. Instead, they are part of a collective group of employees who have rights as a group that are upheld by the union. The employer cannot negotiate with individual employees, but rather must only negotiate with the union as the legally recognized authority to represent the collective interests of the employees.

Typically, there is a collective bargaining agreement between the employer and the union that sets out the entitlements of all employees. If an individual unionized employee has an issue with how they are being treated or a condition of employment, complaints are required to go through the process outlined in the collective agreement, which is usually referred to as the “grievance process”. This is a process through which the union will assess the complaint (or grievance) and determine how to move forward, if at all.

Duty Of Fair Representation Complaint

Under Section 12 of the BC Labour Relations Code, a union has the duty to represent members fairly and honestly, and in a manner that is not arbitrary, discriminatory, or in bad faith.

We can assist unionized employees who wish to file a duty of fair representation complaint (“DFR”). Most DFR complaints relate to the union’s decision not to file a grievance or settle or withdraw a grievance against the wishes of the unionized employee. A DFR complaint is required to be filed in a timely manner, with no specific timeline.

Filing a DFR complaint means that the focus is on the union’s conduct as the employee’s representative, and not on the employer’s conduct. The BC Labour Relations Board does not review whether the union was right or wrong but only focuses on whether the union breached its DFR. This is a high standard that is difficult to meet as it requires that the union acted in a manner that is arbitrary, discriminatory or in bad faith as further described below.

Arbitrariness

Acting “arbitrary” means that the union handled your matter or grievance in a way that was superficial, capricious, reckless, indifferent or negligent to the employee’s interests. The union must make decisions using reasonable judgment and must investigate complaints thoroughly.

If the union fails to adequately investigate or does not consider your interests sufficiently, they can be considered to have acted arbitrarily. However, unions may make errors, and incorrect assessments but this will NOT be considered arbitrary conduct.

Discriminatory

Unions must not violate any of the protected grounds that are outlined in the BC Human Rights Code or show favouritism. These include personal characteristics such as race, sex, religion, age, disability, family status, place of origin or sexual orientation. If a union treats you differently based on these characteristics, which results in unequal treatment, this is considered discrimination.

Bad Faith

Acting in “bad faith” means that the union made decisions based on personal animosity, revenge, pettiness or dishonesty.

If any of these elements have been violated, then we can assist you in filing a DFR complaint.

Human Rights Complaint

Complaints relating to human rights typically are handled by union representatives who can appear before the Human Rights Tribunal on your behalf. You may be given the option of choosing to retain your own outside counsel, however the union generally must be involved in relation to any settlement so that can complicate matters. The benefit is that the outside counsel represents only your interests, however this also means you would need to pay out-of-pocket for legal expenses. If the union represents you then this is covered through your union dues.

If you believe the union’s representation was discriminatory based on a personal characteristic under the BC Human Rights Code, then you may decide to file a complaint with the BC Human Rights Tribunal. If you decide to file a complaint at the same time as the DFR complaint, the Labour Relations Board may decide to wait until the human rights complaint has been dealt with by the BC Human Rights Tribunal before proceeding.

WorkSafe BC

If your issue relates to a work-place injury, your union may not be legally obligated to help you although typically the union will assist with these types of claims. You may wish to retain a lawyer outside of the union to make an application with WorkSafeBC or an appeal to the Workers’ Compensation Appeal Tribunal (“WCAT”). The benefit again is that the outside lawyer represents only your interests, however you would then be paying out-of-pocket for that representation.

Steps to Take Before Meeting a Lawyer

Before meeting with a lawyer, we encourage you to review your collective bargaining agreement to see if there is an internal process to raise your complaint or resolve your issue. Your next step would typically then be working with the union to resolve your matter. If this stalls, the union refuses to represent you or you feel the union has acted in a manner that is arbitrary, discriminatory or in bad faith as described above, we can help.

Please contact our office at 604.853.0774 to speak with our intake team today. More information about initial consultations can be found at the link here: Litigation Initial Consults: Frequently Asked Questions.