An Alberta labour relations board has dismissed a duty of fair representation complaint from a former Sherritt International employee who argued his union breached its obligations when it settled his grievances without his consent after he was terminated for failing to comply with a return-to-work agreement following a positive cannabis test.
The complainant, who worked as an operator in a safety-sensitive position at Sherritt’s Fort Saskatchewan nickel refinery, was placed on administrative leave in May 2023 after a co-worker reported seeing a cannabis vape pen in his vehicle parked in the company lot. He was subsequently drug tested and returned a positive result for cannabis.
Testing controversy sparks multiple grievances
The worker disputed the reasonable cause for testing, arguing he had been on shift for six hours before the vape pen was reported and no one had observed signs of impairment. He also contested the employer’s use of his past absenteeism as additional justification for the test, stating his absences were related to mental health issues stemming from a 2019 plant explosion.
Following the positive test result, Sherritt required the employee to undergo a substance abuse assessment, which diagnosed him with moderate Cannabis Use Disorder. The company then presented a return-to-work agreement requiring him to abstain from psychoactive substances, attend three support meetings weekly for 12 months, obtain a sponsor for a 12-step program, test negative before returning to work, and submit to random testing for 24 months.
Initially reluctant to sign, the worker eventually agreed to the terms but signed “under protest.” However, he subsequently failed to attend scheduled return-to-work drug tests and sent threatening communications to employer representatives, leading to his termination in July 2023 for what the company characterized as voluntary resignation.
Unifor Local 530 filed three grievances challenging the reasonable cause testing, the return-to-work agreement, and the termination. The grievances proceeded through the normal steps and were scheduled for arbitration in November 2024.
Union’s settlement decision sparks complaint
In reviewing the case files, union counsel discovered references to the worker’s cannabis use in his medical records, including a June 2022 Cannabis Use Disorder diagnosis and a prescription for medical cannabis issued in August 2023. During a September 2024 meeting, union representatives discussed these findings with the worker, who denied the accuracy of the substance abuse diagnosis and disputed telling medical professionals he smoked cannabis regularly.
The union explained potential challenges with the grievances, including the worker’s damaged relationship with the employer and the need to address the substance use disorder diagnosis in the context of his safety-sensitive position. Union counsel recommended accepting the employer’s settlement offer, which the union ultimately did in October 2024 despite the worker’s objections.
The worker filed a duty of fair representation complaint, arguing the union failed to properly investigate his case, never took his formal statement, and improperly settled without his consent. He also criticized the union for not addressing his request for different counsel and for not advising him about Employment Insurance options immediately after his termination.
Board finds union met representation duties
The Alberta Labour Relations Board dismissed the complaint, finding no evidence the union acted arbitrarily, discriminatorily, with ill will, in bad faith, or with serious negligence.
The board noted that unions “need not take every grievance to arbitration” and are “entitled to assess the merits of the grievance, the chances of success at arbitration, the costs of the arbitration process and other factors when deciding whether or not to advance a grievance to arbitration.”
Regarding the investigation, the board found the union “did expend significant time and resources looking into the Complainant’s matter,” including filing grievances, participating in resolution meetings, advancing the matters to arbitration, and obtaining extensive production materials. While the worker complained about not providing a formal statement, the board determined his “perspective was canvassed” through meetings, discussions, and email communications.
The board rejected the worker’s argument that the union didn’t push back against the employer, noting the union applied the “widely accepted labour relations principle, of ‘work now/grieve later'” and subsequently filed multiple grievances. The union’s advancement of the grievances “show the continuous representation of the Complainant and resistance to the Employer’s position.”
Settlement authority upheld
On the central issue of settlement authority, the board emphasized that unions have “significant discretion when it comes to their handling of grievances” and “can settle or withdraw a grievance even if the grievor disagrees, so long as they consider the merits of the grievance(s) fairly and adopt a rational approach.”
The board found the union “had gathered the details of the case, put its mind to the merits of the Grievances, and made a reasoned judgment about looking to settlement rather than to arbitrate.” The fact that the worker disagreed with this outcome was insufficient to establish a breach, as “a union does not breach its duty of fair representation just because it reaches a conclusion with which the employee does not agree.”
The board also dismissed complaints about the union’s failure to immediately advise about Employment Insurance options, noting EI “is not a strictly collective agreement right or issue that triggers a union’s involvement” and unions have no obligation to assist with benefits administered by third parties absent specific collective agreement language.
Similarly, the board found no issue with the union’s refusal to change counsel, stating that unions with adequate resources “need not even necessarily hire counsel, let alone have the Complainant stipulate who that counsel may be.”
The board concluded the complaint had “no reasonable prospect of being successful” and dismissed it for lack of merit.
For more information, see Complainant v Unifor, Local Union No. 530-A, 2025 ALRB 71 (CanLII).
