The Saskatchewan Labour Relations Board has refused a request by a union to dismiss a duty of fair representation complaint brought against it by a worker who alleges it failed to setup a complaint process to deal with whistleblowing.
The case revolves around allegations of the Saskatchewan Polytechnic Faculty Association’s breach of duty for fair representation under section 6-59 of The Saskatchewan Employment Act.
The worker, CH, filed the initial application on Oct. 20, 2023, accusing the Union of failing to support her adequately in her intentions to expose alleged wrongdoings within Saskatchewan Polytechnic.
CH believes the school is wasting money and she wants to go public with her concerns. There is a provision in the collective agreement around whistle blower protection — but CH alleged the union had not established a formal complaint process as required by the agreement.
The Union sought to have the complaint dismissed outright, arguing that her allegations did not form an arguable case for a breach of duty.
The Board, led by Vice-Chairperson Barbara Mysko, reviewed the submissions from both parties and decided against the Union’s request for summary dismissal. The Union argued that CH’s case was baseless as she had not faced any disciplinary action for whistleblowing and that her complaints did not align with the grievance categories outlined in the collective bargaining agreement (CBA).
In contrast, CH contended that the Union had failed to establish a formal complaint process, effectively leaving her without recourse to address her concerns, a right purportedly protected under the CBA’s whistleblower protection clause.
In its analysis, the Board emphasized that the Union’s duty of fair representation extends to decisions that could affect an employee’s protection from future discipline, particularly when the Union acts as the initial point of contact, as stipulated in the CBA.
The lack of a formal process for addressing such concerns, as alleged by CH, could arguably hinder her ability to be fairly represented by the Union.
The Board referenced established case law, including Berry v SGEU, to outline the standards of “arbitrary,” “discriminatory,” and “in bad faith” conduct expected in union representation. The Board’s decision clarified that it is not their role to judge the validity of the employee’s dispute with the employer but rather to assess whether the Union breached its duty of fair representation.
As the complaint now moves forward, the Board has scheduled the matter for further proceedings to determine the next steps.
“The Union’s argument that there is no evidence of serious or major negligence is better left to the substantive hearing,” the Board said.
For more information, see Saskatchewan Polytechnic Faculty Association v Chau Ha, 2024 CanLII 13533 (SK LRB).
