The Saskatchewan Labour Relations Board has dismissed a duty of fair representation complaint from a grocery store employee who argued her union failed to adequately represent her when she wasn’t scheduled for shifts during her two-week notice period.
M.S. filed the complaint against United Food and Commercial Workers Local 1400 after submitting her resignation to Real Canadian Superstores on Aug. 28, 2024, with her last day intended to be Sept. 11, 2024. However, she wasn’t scheduled for any shifts during her notice period and lost access to employee systems, including schedules, pay stubs and employee discounts.
Employee concerns over system access and scheduling
The employee contacted her union representative A.F. on Sept. 3, 2024, after receiving a text message requesting an exit interview and discovering she had been locked out of the employer’s employee application. She expressed frustration that she hadn’t been scheduled for any shifts during her notice period and hadn’t been contacted for call-in shifts.
The union representative responded the next day, telling M.S. he would look into both her loss of system access and the lack of scheduled shifts. He immediately emailed the store manager to inquire about the employee’s loss of access despite her final day being Sept. 12, 2024.
When the store manager didn’t respond initially, the union representative sent a follow-up email on Sept. 9, copying a human resources professional. The HR representative explained that M.S. had “relinquished her remaining scheduled shifts” and wouldn’t be attending the workplace for the remainder of her notice period. The HR representative advised that M.S.’s “date of termination” would need to be changed and her system access should be reinstated until Sept. 12.
Background scheduling issues
The case revealed ongoing scheduling disputes between M.S. and her employer. Around Aug. 20, 2024, she had discussed her availability with the union representative, indicating she had set her availability for 7 a.m. to 11 a.m. on Saturdays and Sundays but expressed dissatisfaction that she wasn’t being scheduled during those periods.
The union representative asked whether any junior employees were scheduled during her available periods. M.S. indicated her supervisor had told her that a 7 a.m. to 11 a.m. shift didn’t exist as a shift the employer scheduled. The union representative explained that if junior employees were scheduled within her availability, a grievance could be filed, but if not, the union couldn’t pursue a grievance since her preferred shift simply didn’t exist.
Following this discussion, M.S. wasn’t scheduled for any shifts as the employer scheduled no shifts within her availability timeframe.
Legal standard for fair representation
The Saskatchewan Labour Relations Board reviewed the case under section 6-59 of The Saskatchewan Employment Act, which requires unions to represent members fairly and prohibits arbitrary, discriminatory or bad faith conduct.
The board noted that its role isn’t to sit in appeal of union decisions but to ensure unions exercise their statutory powers fairly. The standard allows unions to make mistakes, with the board reviewing whether handling was “totally unreasonable” rather than applying a reasonableness standard.
The board emphasized the distinction between non-actionable decisions and arbitrary decisions, noting that arbitrary conduct includes conduct that is “flagrant, capricious, totally unreasonable, or grossly negligent” but must be distinguished from “errors, omissions, or mere negligence which are not actionable.”
Board’s analysis and decision
The labour board found the union responded to M.S.’s concerns in a manner consistent with the duty of fair representation. The union raised issues with the employer and achieved some results, as evidenced by M.S. receiving her employee discount back.
The board noted M.S. included no facts supporting allegations of discriminatory or bad faith conduct. On the question of whether the union acted arbitrarily, the board found the union “turned its mind to the issues and attempted to achieve results.”
While M.S. “would have preferred faster or better results,” the board concluded the union complied with its duty. The union showed regard for M.S.’s interests regarding shift scheduling during her notice period and access to her employee discount, and sought to achieve a resolution.
The board found the union “did not unfairly disregard” M.S.’s interests and “repeatedly contacted the Employer in a short span of time.” The board concluded it could “find no basis for a breach of the duty on the facts before the Board.”
The board dismissed M.S.’s application, finding the union fulfilled its duty of fair representation despite the employee’s dissatisfaction with the speed and extent of the union’s response to her concerns.
For more information, see Scheller v UFCW, 1400, 2025 SKLRB 27 (CanLII).
