Labour & Employment Law Blog

The Duty of Fair Representation, Grievances and Mandatory COVID-19 Vaccination Policies of the Employer: Ontario Labour Relations Board Decides

In the recent decision of Tiffany Bloomfield, Danielle Hurding, Mel Lewis, Lexi L. Bezzo, and Jaclyn Wagner v. Service Employees International Union, 2022 CanLII 2453 (ON LRB), the Ontario Labour Relations Board (“Board”) dealt with an application of employees under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1. (“Act”).  The applicants were personal support workers employed by the employer who provides home healthcare services.

In 2021 the employer had introduced a mandatory COVID-19 vaccination policy.  This policy required that all employees be fully vaccinated by a certain date.  The applicants alleged that their union, the responding party, Service Employees International Union, Local 1 Canada (the “Union”) breached its duty of fair representation due to the Union holding grievances of its members related to the employer’s mandatory vaccination policy in abeyance “pending case law.”  The Union had set out to its members that it expected such grievances to be unsuccessful given the current state of the law and the difficulties that COVID-19 poses presently.   Due to the employer’s mandatory COVID-19 vaccination policy, the applicants were placed on unpaid leave.  The Union did in fact file a group grievance on behalf of several people including the applicants.

Provincial unionized employees in Ontario who are unsatisfied with the way their union represents them before the employer has the right to bring an application before the Board to challenge the union’s conduct. Typically, if the Board is of the opinion that the union acted in a manner that is discriminatory, arbitrary or in bad faith, it will make an order to address the issue. However, it is usually very hard to win an application of this nature.  Furthermore, under this process, the Board will only review the union’s conduct in terms of how it was acting on behalf of the employees vis-à-vis the employer. It will not decide whether the employer’s workplace policy or conduct was appropriate per se but only the manner in which the union dealt with the employees’ concerns.

In this case, the Board decided that it was clear, plain and obvious that the applicants had no reasonable chance of success in establishing a violation of the duty of fair representation.  The Board stated the duty of fair representation is about a union’s conduct and not a “forum” for debating or complaining about vaccination in general, scientific studies, government directions, etc.  In order to support this proposition, the Board cited Tina Di Tommaso v. Ontario Secondary School Teachers’ Federation, 2021 CanLII 132009 (ON LRB).

The Board further set out that during the consultation process the applicants had made a few complaints about the Union’s actions.  Further, the Board decided that none of those complaints established a prima facie case.  For instance, the applicants had complained that the Union had “discouraged” the applicants from “taking action.”  The Board replied that with respect to these communications, the applicants had simply not made out a prima facie case that the Union had acted in a manner that was arbitrary, discriminatory or in bad faith.  The Board set out that it was not the Union’s job to give its members a “rosy outlook” with respect to its message about the possibilities of success of a grievance related to the employer’s mandatory COVID-19 vaccination policy.  In fact, the Board set out that it was necessary for the Union to provide a clear and frank assessment to its members based on the situation and the legal advice that it received in order to act in a fair and prudent manner.

In any event, the Board noted that the Union had filed a grievance and that the grievance had been filed immediately for the applicants who were placed on unpaid leave.  The applicants had failed to provide anything to the Board that would suggest that the Union’s decision to grieve was in itself in bad faith, arbitrary or discriminatory.   The Board refused to provide a remedy to the applicants to force the Union to act more quickly or “more forcefully” in the absence of the actions on the part of the Union being arbitrary, discriminatory or in bad faith.

Finally, the applicants had complained during the consultation process that the Union had held an event promoting vaccination where employees could get “swag bags.”  The Board set out that these complaints were not made in a timely manner.  However, in any event, the duty of fair representation is with respect to a union’s role as an exclusive bargaining agent opposite the employer.  The Board does not have the power to “police internal affairs.”  As such, the applicants failed to make out a prima face breach of the Act.

Our Thoughts

This case does not solve the riddle of how the case law is going to evolve with respect to whether mandatory vaccination policies will be upheld (there were already several decisions that we have discussed our recent blog on the topic here where these issues was dealt with). Indeed, the Union specifically set out that its position was to hold grievances in abeyance “pending case law.”  The warnings of the Union that such grievances being unlikely to be successful absent some valid exemption of vaccination was not challenged.  Nor should it have been given the facts at hand here in this case.

At a basic level, the case here simply supports position of the Board that unions do not have to give their members a “rosy outlook” if they feel that their grievance is not going to end well.  This makes sense as unions, in order to properly and fairly support their members, need to provide a frank assessment to them about their situation and the legal advice that the union received.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.