Can I start an action against my union for discrimination?achkarlaw-admin
When an employee is in a unionized workplace, any issue that they have in the workplace must be dealt with through their union. Once a union is certified by the Labour Relations Board at a workplace, it doesn’t matter if the employee has actually signed up to join the union; they still have to pay dues and can only bring legal claims under their collective agreement, if any. If they experience a workplace problem, they must use the channels provided by their union to address it.
However, what happens if a union member is discriminated against by their own union? What should they do if they are experiencing unfair treatment by an organization that is supposed to fairly represent their best interests?
When a union member experiences discrimination by their employee, they must go to the Labour Relations Board in their province (or the Canada Industrial Relations Board if a federal employer) and file an “unfair representation” complaint against their union. This complaint will say that their union breached its statutory duty of fair representation.
What is the duty of fair representation that unions must meet?
Unions were first created to represent the needs and interests of employees at a workplace. It follows from this that one of the main functions of a union is to fairly represent its members. They must not act arbitrarily, in bad faith or for discriminatory reasons when deciding whether or not to file a grievance or take some other step requested by the employee. Unfortunately, the reality is that some unions do not do a good job of representing their members. Sometimes, a union will choose to do something that discriminates against a member or that does not represent the wishes of the members with an issue.
Unions have a lot of discretion over how they decide to move forward with a member’s grievance or complaint. That means that they have a great deal of room to potentially act discriminatorily toward members if they choose not to deal with their grievance based on reasons having to do with something like a disability.
Unions do not have to follow through with every single grievance filed by one of their members, but they do need to show that they had good reason to not follow through. They also must be able to show that the reason was fair and genuine.
If a union discriminates against someone based on disability, does that mean that they did not meet their duty?
Sometimes, a union will not meet their duty. In some cases, that will be because they have discriminated against a member based on their disability or perceived disability.
In Ontario and throughout Canada, disability status is a protected ground. In a workplace, discrimination is prohibited based on disability status or perceived disability. For non-unionized employees, the solution, if they are discriminated against, is to file a human rights complaint. When you are a member of a union, you may also want to file a grievance through the union.
However, if it is a union discriminating against an employee, that means that they have not met their duty of fair representation. Rather than submitting a claim to the Ontario Human Rights Tribunal, as it can be difficult to pursue a matter against a union there, unionized employees may find it better to file an unfair representation complaint with their provincial Labour Relations Board.
What is an unfair representation complaint and how do I file one?
In Ontario, unionized employees can file an unfair representation complaint through the Ontario Labour Relations Board (“OLRB”). By submitting a complaint through the OLRB, members can attempt to hold their union accountable and seek representation that is fairer.
That complaint will be reviewed by the board, who will inform the union of the complaint by giving them a copy of the materials. Members can generally expect a response within 15 days of submitting their complaint.
In certain situations, members of a union may also submit a complaint through the Ontario Ombudsman. The Ontario Ombudsman oversees certain organizations within Ontario, which includes certain unions. If you have a complaint, make sure to check to see if the Ombudsman oversees your union and can investigate your claim as well. Claims can be submitted simultaneously to the OLRB and to the Ontario Ombudsman.
Union members can file their complaints through the links listed above. While this can be done without the help of a lawyer, it might be a good idea to seek representation to help you through the process. As well, a lawyer may be able to help the situation by sending a demand letter to your union, which may alert them to their failure to meet their duty of fair representation before you even need to file a complaint.
In Canada, unions have a duty to fairly represent their members. That means hearing grievances and representing the interests of their members as best as possible and in good faith. Unions do not have to act on every grievance filed by a member, but they do need to show that they acted fairly and without discriminating against their members.
If a member of a union is discriminated against by their union based on their disability status or a perceived disability, then that union has failed to meet their duty of fair representation. That union member can then file an unfair representation complaint through the OLBR.
If you have been discriminated against by your union and have questions about what to do next, make sure to reach out to the qualified workplace and human rights lawyers at Achkar Law for assistance. Seeking representation can be a great way to make sure that you receive the help you deserve.
If you are an employer or an employee with questions about the duty of unions to fairly represent their members, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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