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Duty of Fair Representation Questions
Complaints Under Section 25.1 of the Trade Union Act
A guide for parties represent themselves
The purpose of this guide is to provide parties representing themselves with information on the process for presenting a complaint under section 25.1 of the Trade Union Act (the “Act”) and for hearings before the Labour Relations Board (the Board). This guide is only an informal tool, which should be used in conjunction with the Act and the The Trade Union (Labour Relations Board) Regulations (the Regulations).
What is the SLRB?
The Labour Relations Board is an independent quasi-judicial tribunal responsible for administering the complaint system under the Act. The Board’s mission is to promote and support harmonious employer-employee relations. As such, one of the goals of the Board is to ensure that complaints of duty of fair representation are examined fairly and impartially.
The Board also provides mediation services to help parties resolve differences without resorting to a formal hearing. Mediation services are often effective in resolving complaints under s. 25.1 and parties are urged to use those services to assist in reaching a resolution.
Who conducts the hearings?
Hearings relating to complaints are usually heard by the Chairperson or the Vice-chairperson of the Board sitting alone. In some limited circumstances, a hearing before a full 3 person panel of the Board will occur.
Filing a complaint
What types of complaints can I file before the Board?
Complaints can be filed under section 25.1 of the Act by an employee who is represented for collective bargaining by a trade union. Complaints under s. 25.1 of the Act usually relate to a failure on the part of the Trade Union to properly represent a member in grievance or rights arbitration proceedings under a collective agreement in a manner which is:
• discriminatory; or
• in bad faith
What amounts to arbitrary, discriminatory or bad faith representation by a trade union has been described by the Board in numerous decisions which can be found here on the Board’s web site. One recent decision where the factors considered by the Board were considered in DWAYNE LUCYSHYN, Applicant v. AMALGAMATED TRANSIT UNION, LOCAL 615, which decision may be found here.
Can I represent myself?
Complainants wishing to file a complaint before the Board under section 25.1 of the Act may represent themselves without help from a bargaining agent or lawyer. The Board will also, permit someone who is not a lawyer to assist a Complainant to represent themselves before the Board.
How do I file a complaint before the Board?
A complaint must be filed with the Registrar of the Board. To do so, the complainant shall use Form 2 of the Regulations which is currently the form used for Unfair Labour Practices.
The written complaint should include, at least, the following facts:
(1) The name, address, and phone and fax numbers of the complainant;
(2) The name, address and email address of the respondent;
(3) A short summary of the measures taken by the trade union that resulted in the complaint, specifying dates and the names of the persons in question;
(4) The steps taken by the complainant or on his/her behalf to rectify the situation;
(5) The corrective action or order requested under subsection 25.1 of the Act; and
(6) Other facts relevant to the complaint.
What happens after a complaint has been filed with the Registrar
Opening the file
When the Registrar receives a complaint, a letter is sent to each of the parties acknowledging receipt of the complaint and advising the respondent of its opportunity to reply. The acknowledgement letter also provides the parties with information required for continuing the process, such as the Board’s file number, and instructions on the next step. It is important that the Board’s file number be used on all subsequent documents and correspondence.
Based on the persons named in the complaint, the Board will create a list of parties, intervenors and other persons who may be affected by the proceeding (the “Board’s parties list”). The Board will send copies of the complaint to the persons whose names appear on this list.
Please note that any document submitted subsequently to the complaint shall be filed with the Registrar.
Every complaint under s.25.1 of the Act is automatically eligible for mediation; however, mediation remains voluntary and is done through a pre-hearing. Pre-hearings are conducted by either the Chairperson, a Vice-Chairperson, the Board Registrar or the Board Investigating Officer. Pre-hearings are "off-the-record" and are less formal than hearings. They are used to try to settle cases which can be settled and to manage those cases which cannot be settled by narrowing the issues and hopefully shortening the hearing. If a party declines mediation in writing, or if the conflict cannot be resolved through this approach, the Registrar may refer the dispute to a formal hearing.
Even if the parties refuse mediation at the outset, they may at any point jointly request that the matter be referred to mediation. If the parties jointly file with the Registrar request to have the conflict referred to mediation, the complaint will in most cases be immediately put in abeyance and a mediation date scheduled.
Preparing for the Hearing
Hearings give the parties an opportunity to present their evidence and arguments to the Board. As a rule, the process for a hearing before the Board is the same as that before a court, though somewhat less formal. The parties may file supporting documents as evidence and examine and cross-examine witnesses.
Scheduling the hearing
The Board usually tentatively schedules hearing dates several months in advance. The parties will be contacted to confirm their availability.
Notice of hearing
When the Registrar refers a complaint to a hearing, a notice of hearing is sent to each person whose name appears on the Board’s list, informing him or her of the date, time and place where the hearing will be held. A notice of hearing will normally be sent out as early as possible prior to the hearing date.
Deferral and withdrawal
A hearing may only be postponed if either or both parties believe that they will be unable to attend. In such a case, an adjournment must be requested from the Registrar along with the reason for the request. The requesting party must inform all persons whose names appear on the Board’s list that they wish an adjournment. Only in exceptional circumstances can the request be made to the Board at the commencement of the hearing. In some circumstances, where the time before the hearing is very short, an adjournment may be sought from the Executive Officer of the Board.
The position of the other party with respect to the request for adjournment will be obtained before a decision is made whether to postpone the hearing, and all persons whose names appear on the Board’s list will be informed of that decision.
Sometimes, the parties settle the complaint among themselves before the hearing. It is then up to the complainant to inform the Registrar in writing that the dispute has been resolved and is being withdrawn, or is in the process of being resolved. If the hearing has started or is about to start (on that same day), the parties should inform the Board panel who is hearing the case about the withdrawal before informing the Registrar in writing.
A party that wants to call a witness to testify and thinks that the witness will attend only if legally required to do so can request (in writing and in the form prescribed in the Regulations) a subpeona. If the Board issues a subpeona, the party that intends to summon the witness must inform the witness that he or she is being called to testify at a hearing by serving him or her with the document sufficiently in advance of the hearing. All costs related to the service of a summons are paid by the party requesting the summons. Witness fees are to be paid as specified in the Regulations. This includes fees for compulsory attendance at the hearing as well as fees to reimburse for travel costs, sustenance and lodging, if necessary. These fees are payable at the time the subpoena is served on the witness.
Subpoenas may be in two forms. One is a simple subpoena which is used to compel a witness to attend and give testimony. The other is a subpoena duces tecum, which requires that the witness not only attend the hearing and give testimony, but also to bring with him/her, documents which they have in their possession which you wish them to produce at the hearing.
The parties are responsible for notifying in writing the Registrar well in advance of any needs or services that they will require before or during the hearing (for instance, that the building where the hearing is to take place be accessible to people with mobility disabilities).
Technical and procedural ussues
The hearings are normally recorded, but no transcript is prepared. Hence, it is important that the parties take notes. The Board panel will also take notes of the evidence and submissions. The notes taken by the Board panel are not accessible by the parties or the general public. If any party requests a transcript, the cost of preparation of that transcript is paid by that party. The other party may also obtain a copy of the transcript for a fee. All transcripts are prepared by a court reporter who is an independant contractor.
Swearing an oath
A witness who is called to testify at a hearing must swear an oath or solemnly affirm to tell the truth for his/her testimony to be admitted as evidence. Individuals asked to testify may swear on the Bible or another sacred text or object, or promise to tell the truth.
If a sacred text or object other than the Bible is to be used by a witness, the witness should arrange to bring that text or object to the hearing when he/she is expected to testify.
Failure to attend
If a person fails to attend a hearing or any subsequent session of that hearing, the Board panel may continue the hearing and decide on the matter without further notice to that person.
If a party raises an objection at the hearing, the Board panel will ask the other party for its position on the objection. It will then give the objecting party an opportunity to respond to the other party’s position before rendering a decision on that matter. The decision on some objections may be reserved by the Board panel and dealt with in the final decision.
An application may be made to the Board panel at a hearing to have it render a decision on an issue concerning the procedure which does not touch on the substance of the case.
If one of the parties contests the Board panel’s jurisdiction for hearing a complaint, after considering relevant evidence and submissions, the Board panel must be satisfied that it has jurisdiction before ruling on the complaint. The Board panel may also reserve decision on the question of jurisdiction and proceed with the hearing, based on the merits of the case (a common practice for jurisdiction-type questions).
The conduct of the hearing
Proper behaviour is expected from the participants. As a sign of respect, when the Board panel enters or exits the room, it is customary, however not required, for participants to rise. As well, special places are assigned to the participants in the room depending on their role in the case (complainant, visitor, witness, etc.) (see Appendix 1).
What is your case about
Often, applicants forget the reason they filed their complaint and try to justify their actions which gave rise to the grievance. The board has no jurisdiction to deal with the merits of the grievance. Some context is required for the board to know how the grievance arose, but their principal inquiry will be directed to the nature of the representation you received from the union related to the grievance and your evidence should focus on any actions by the trade union which you believe were arbitrary, discriminatory or in bad faith. The definition of those terms can be found here.
Opening statement and preliminary matters
At the beginning of a hearing, the Board panel makes an opening statement. It takes this opportunity to explain the reason why the parties are there and the basic rules for the hearing. It then asks the parties whether they have any preliminary questions that they would like to bring to the panel’s attention. This is when the parties can raise an objection concerning the Board panel’s jurisdiction for hearing the complaint, request the exclusion of witnesses from the hearing or request modifications or clarifications on the conduct of the hearing.
Afterwards, each party may make an opening statement, during which it can provide a summary or overview of what it intends to prove and how it intends to do so and the remedy or relief sought. The order of presentation of the opening statements is the same as that of the presentation of evidence and the examination (see section on Presentation of evidence and examination of witnesses). It should be noted that the party that proceeds second may wait until it presents its case to make its opening statement, in other words, before its evidence is presented.
Presentation of evidence and examination of witnesses
Generally, the complainant will proceed first with the presentation of his or her evidence. However, in complaints involving a failure to comply with subsection 25.1 of the Act, the applicant has the burden of proof and will proceed with presenting its evidence first. Winesses that are expected to testify, other than an instructing party are normally asked to leave the hearing room while other witnesses are testifying until their testimony has been given.
The party that presents its evidence first is automatically the first one to examine its witnesses. This is called “examination in chief”. During its examination-in-chief, this party shall aim to present all of the information that will help support its case. Then, the other party examines the first party’s witnesses: this is the cross-examination. It will then try to contradict the evidence presented or demonstrate that the merits of the case are unfounded. After the cross-examination, the party that was the first to examine its witnesses will have an opportunity to re-examine its witness to address any new point raised during the cross-examination. Once all of the first parties witnesses have been examined, then, the other party will have a chance to examine its own witnesses to present its evidence and, as before, this will be followed by a cross-examination and re-examination.
It should be noted that all persons, including the complainants who wish to testify, must swear an oath or make a solemn affirmation to tell the truth.
How do I present my evidence and examine my witnesses?
Essentially, the presentation of evidence involves examining witnesses and filing documents or items applicable to the dispute. Documents and other items presented as evidence are generally provided through a witness or with the other party’s agreement. A copy of such documents must be provided to each of the parties, to the witness, and to the Board panel. As a general rule, you should have a minimum of 4 copies of any documents you propose to enter as evidence. To the extent possible, documents should be in their original form and not edited.
It is important that questions asked during the examination-in-chief of a witness be kept short and open to enable the witness to be free to recount the facts relative to the matter. This means that leading questions, where the witness is guided towards an answer, should not be used. However, there is nothing to prevent the parties from asking leading questions at the beginning of a witness’ examination-in-chief to establish the latter’s identity or during cross-examination to focus the witness’ answers.
How do I prepare my arguments?
When parties present their arguments, following the presentation of all of the evidence, they can also present, in support of their case, the applicable case law, or previous Board decisions relevant to the matter under consideration. Research is very important in preparing the arguments. The parties may consult the Board’s Web site where they can find previous Board decisions or those of labour boards, the different statutes under its jurisdiction and other useful links.
During the presentation of arguments, the parties speak in the same order as for the presentation of evidence. By this time, the Board panel knows all of the elements or relevant facts of the dispute as they were presented and hears the parties’ arguments.
This is when the parties refer to previous Board decisions and those of adjudicators, statutes or case law to support their arguments.
If a party wishes to refer to a previous decision, statute or case law, it must ensure that a copy is provided to each party and to the Board panel.
End of Hearing
After the parties have presented their arguments, the hearing will come to a close.
If more time is needed to continue the hearing, the Registrar will specify the date, time, place and terms of its continuance.
What happens after the hearing?
The hearing gives the Board panel an opportunity to review and consider the parties’ arguments, submissions, and all the evidence required to understand the dispute. The Board panel must then render its decision in writing. Normally, the Board panel tries to render its decision within six months of the hearing.
The Board renders quasi-judicial decisions on complaints. In writing its decisions, it is careful to include only personal information that is relevant and necessary for its reasons. Since its decisions are accessible to the public, they are posted on our website. In appropriate circumstances, and on application, the Board will mask the identity of the applicant or other person in accordance with the protocol adopted by the superior courts.