Employees who are members of a union are generally not able to enforce workplace rights individually in the same way as non-unionized employees. Instead, unionized employees are part of a collective bargaining unit represented by the union.

The union, rather than the individual employee, is the legally recognized representative of the employees in dealings with the employer. This means the employer generally cannot negotiate directly with individual employees about terms and conditions of employment and workplace disputes are typically required to proceed through the grievance and arbitration process set out in the collective agreement.

As a result, outside lawyers are often limited in the role they can play unless the issue involves matters such as a duty of fair representation complaint, human rights concerns, or certain WorkSafeBC or appeal proceedings.

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, so should be done as soon as possible.

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.

A DFR is about whether the union acted arbitrarily, discriminatorily, or in bad faith under s. 12 of the Labour Relations Code, not whether the union made the best decision. This is a high standard that is difficult to meet.

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

Human rights issues involving unionized employees can be more complex than non-unionized workplace complaints. In many cases, workplace disputes relating to discrimination, accommodation, harassment, or retaliation are expected to proceed through the grievance and arbitration process under the collective agreement, with the union acting as the employee’s representative. Additional information from the BC Human Rights Tribunal regarding unionized employees can be found here: Membership in a

In some situations, a unionized employee may choose to retain outside legal counsel to represent only their personal interests in relation to a complaint before the BC Human Rights Tribunal. However, because the union remains the legally recognized representative of the bargaining unit, the union may still need to be involved in aspects of the matter, including potential settlement discussions.

If you believe the union itself acted in a discriminatory manner based on a protected characteristic under the BC Human Rights Code, you may also consider filing a complaint against the union with the BC Human Rights Tribunal. If a human rights complaint and a duty of fair representation complaint are both filed arising from similar circumstances, the Labour Relations Board may decide to pause one proceeding pending the outcome of the other.

If the union represents you in relation to the matter, those services are generally covered through your union dues. If you retain outside counsel, legal fees would generally be your responsibility.

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.

What to Do Before Contacting Us

Before contacting our office, we encourage you to review your collective bargaining agreement to determine whether there is an internal process for raising or resolving your concern. In most cases, unionized employees are expected to first work through the union and grievance process outlined in the collective agreement.

If the matter has stalled, the union has declined to proceed, or you believe the union has acted in a manner that is arbitrary, discriminatory, or in bad faith as described above, we may be able to assist.

To help us assess your situation efficiently, please gather any relevant documents available to you, including:

• your collective bargaining agreement;
• grievance documents or internal appeal materials;
• emails or correspondence with the union;
• relevant employer correspondence;
• discipline, suspension, or termination letters;
• medical or accommodation-related documents, if applicable; and
• a brief timeline summarizing the relevant events.

Please contact our office at 778.666.3232 to speak with our intake team. Additional information regarding initial consultations can be found here:  Litigation Initial Consults: Frequently Asked Questions.