Home Arbitration/Labour Relations Fair representation case against CUPE by former hospital worker over COVID-19 vaccine policy dismissed by board

Fair representation case against CUPE by former hospital worker over COVID-19 vaccine policy dismissed by board

by HR Law Canada

The Ontario Labour Relations Board (OLRB) has dismissed an application filed by a worker against the Canadian Union of Public Employees (CUPE) Local 7800, alleging a failure to represent her adequately in her grievance related to her termination by Hamilton Health Sciences (HHS) due to a COVID-19 vaccination policy.

S.K., whose employment was terminated on Jan. 15, 2022, claimed that the union had violated its duty of fair representation under section 74 of the Act. She argued that CUPE Local 7800 had failed to communicate effectively and had not provided timely updates on her grievance status, which she believed was unjustly terminated due to HHS’s vaccination policy.

In her application, S.K. listed a series of complaints, including the union’s alleged failure to provide arbitration dates, lack of full disclosure, and the prioritization of other grievances over her own. The union, in response, argued that the application was premature, as her grievance was being held in abeyance pending the outcome of a “test case” related to similar vaccination policy grievances.

The board agreed with the union’s arguments, stating, “The applicant has not pled material facts that would result in a determination of the Union’s having failed to meet its obligations under section 74 of the Act even if the applicant’s factual allegations were accepted as true and provable.”

The Board emphasized that unions have significant discretion in managing grievances and arbitration processes, provided they do not act in a manner that is arbitrary, discriminatory, or in bad faith. In this case, the Board found that CUPE Local 7800’s decision to proceed with a test case while holding other grievances in abeyance was within their rights and did not constitute a violation of the Act.

The board further noted that S.K. had been informed of the status of her grievance and the rationale for the delay, and her communications with the union did not indicate abandonment of her grievance. “The emails filed and relied on by (her) contradict her assertion that the ‘Union appears to have abandoned [her] grievance’,” the board stated.

Key takeaways

Union Discretion in Grievance Management: Unions have considerable leeway in deciding how to manage grievances and arbitration processes, including the use of test cases to address similar issues collectively. This approach is often seen as more efficient and resource-effective.

Prematurity Doctrine: Applications alleging failure of duty of fair representation may be dismissed as premature if the grievance process is ongoing and the union has not abandoned the grievance. Dissatisfaction with the union’s approach does not necessarily constitute a breach of duty.

Communication and Procedural Errors: While procedural errors, such as incorrect email addresses, can be frustrating for grievors, they do not automatically result in a violation of the union’s duty of fair representation, provided there is no evidence of arbitrary, discriminatory, or bad faith conduct.

    For more information, see Sandra Kellman v CUPE Local 7800, 2024 CanLII 42162 (ON LRB).

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