Home Arbitration/Labour Relations Union did not breach duty of fair representation in TTC streetcar driver’s firing, tribunal rules

Union did not breach duty of fair representation in TTC streetcar driver’s firing, tribunal rules

by HR Law Canada

A labour tribunal has dismissed a duty of fair representation complaint brought by a former Toronto Transit Commission (TTC) streetcar driver against Local 113 of the Amalgamated Transit Union.

The worker, N.R., alleged the union violated provincial labour legislation by failing to properly investigate and grieve the circumstances of his discipline and termination. However, the tribunal found the union’s actions were neither arbitrary, discriminatory nor taken in bad faith.

The dispute centred on two incidents. The first involved an altercation between N.R. and several fare enforcement officers during his shift as a streetcar operator. According to the ruling, “two things resulted from this altercation: the applicant was directed to submit to a drug and alcohol test; and the applicant was later placed on a paid leave while the [employer] conducted an investigation.”

N.R. disputed the need for testing and argued the union did not do enough to prevent it. In the end, no discipline arose from the test result.

Last-chance agreement versus challenging termination

N.R.’s employment was initially terminated following the investigation into his alleged conduct toward the fare enforcement officers. During the process, the union and the employer negotiated a last chance agreement (LCA) that rescinded the termination and replaced it with a suspension.

Under the LCA, N.R. could return to work immediately, subject to certain conditions, including the condition that any future conduct in breach of workplace policies would result in dismissal without recourse to a full grievance on the penalty.

In its submissions, the union said it had reviewed N.R.’s written statements, the employer’s investigative findings and the content of the complaint against him. The union believed that challenging the termination would likely involve a long and potentially unsuccessful arbitration process.

The LCA, in contrast, offered a quicker path for N.R. to return to work. The tribunal noted that N.R. “enjoyed the benefit of the LCA” by being reinstated. Citing prior case law, it found no indication the union coerced him to sign.

Second incident

A second incident occurred a month later, when N.R. allegedly insulted a passenger requesting the ramp to be deployed. The passenger lodged a complaint, claiming N.R. used inappropriate language. N.R. denied any wrongdoing, asserting instead that he was the target of harassing comments.

After reviewing the allegations under the LCA, the employer terminated N.R. again. The union initially filed a grievance but later withdrew it, determining that the LCA limited the union’s options to disputing whether the incident itself happened. The union concluded there was insufficient evidence to refute the passenger’s statements.

The ruling

In its decision, the tribunal underscored that its role in duty of fair representation complaints is limited. It does not examine whether an employer had cause to discipline or whether a union’s choices are correct in hindsight. Instead, it looks at whether the union acted “arbitrarily, discriminatorily or in bad faith.”

Citing earlier jurisprudence, the ruling states: “‘Arbitrary’ means conduct which is capricious, implausible, or unreasonable in the circumstances,” while “‘bad faith’ is conduct motivated by hostility, malice, ill-will or dishonesty.” The board reiterated that it does not determine “whether the decisions made by a union were correct” but whether the “manner in which a union comes to a decision or responds to a bargaining unit member” meets basic standards of representation.

N.R. argued the union pressured him into signing the LCA and later failed to accommodate his disability in its representation. However, the tribunal concluded the union did not coerce N.R. or violate his rights. The decision stated that the union’s approach — including its negotiation of the LCA and subsequent withdrawal of the grievance challenging the second termination — fell within the permissible range of judgement.

According to the tribunal, “it is within the exclusive right of a union to determine whether or not to pursue a grievance to arbitration … provided that the decision was not arbitrary, discriminatory or made in bad faith.”

Drug and alcohol testing

In its written reasons, the tribunal addressed N.R.’s claim that the union should have grieved the drug and alcohol testing. Because there were no disciplinary consequences from the test, the union opted against filing a separate grievance. The tribunal agreed, noting that no harm had come to N.R. on that issue alone: “The mere refusal of a trade union to advance a grievance to arbitration does not, in and of itself, constitute a breach of the duty of fair representation.”

On the broader question of whether the union should have fought his termination more vigorously, the tribunal found the union had made a reasoned judgement. It considered witness statements and the employer’s complaint documentation, then concluded the chance of success at arbitration was slim, especially in light of the LCA terms. The decision says: “An applicant need not agree with the decisions made or positions taken by a union; however, provided that those decisions … were not arbitrary, discriminatory or in bad faith, the board will not find a violation of section 74 of the Act.”

Ultimately, the tribunal dismissed the application, holding that the union had not breached its duty of fair representation. It underscored that N.R. was engaged in the process at every stage — including the negotiation and signing of the LCA — and that the union’s decision to withdraw his second grievance was based on a logical assessment of the available evidence and the binding terms of the LCA.

For more information, see Neal Ramchaitar v Amalgamated Transit Union, 2024 CanLII 137676 (ON LRB).

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