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UNIONS - Duties - Representation of members - Duty of fair representation

Friday, September 01, 2017 @ 8:35 AM  


Lexis Advance® Quicklaw®
Appeal by the Union from a decision allowing the employee’s application for judicial review of the dismissal of her complaint and cross-appeal by the employee from the decision to remit the matter back to a Review Officer. The employee was a part-time psychology professor at Saint Mary's University (University) from September 2000 to September 2011. She was represented by the Union. She filed two grievances alleging that the employer had harassed her with a disciplinary letter, and later terminated her without cause. The Union’s view was that the harassment grievance would fail, the termination grievance might succeed, and the best outcome would be a settlement of both grievances on terms favourable to the employee. The employee was opposed to settlement and insisted on arbitration. The Union negotiated a settlement with the employer that would have reinstated the employee with compensation, returned her seniority and withdrawn the disciplinary letter. The employee rejected the settlement and filed a complaint with the Labour Board alleging that the Union had breached its statutory duty of fair representation because of the lengthy delay. The Review Officer dismissed the employee’s complaint. He found that the delay was not caused by the Union’s bad faith and was contributed to by the employee. The employee successfully applied for judicial review. The reviewing judge found that the Review Officer’s decision was unreasonable. He found that the Union's delay in pursuing the employee’s grievance amounted to a breach of the duty of fair representation. He also found that the employee did not play a significant role in the delay. The Union appealed and the employee cross-appealed. The employee argued that the Union had a duty to accommodate her mental disability, and the appropriate accommodation required the Union to take her grievances to arbitration. The Union submitted that the reviewing judge misapplied the reasonableness standard to the Review Officer’s dismissal of the employee’s complaint.

HELD: Appeal allowed and cross-appeal dismissed. There was ample evidence from which the Review Officer could reasonably infer that the tension over control disturbed the momentum of the grievances and contributed to the delay. The tension stemmed from the employee's misapprehension that she, not the Union, controlled the process. The Review Officer did not fault the employee, but indicated that the delay flowing from the employee’s misapprehension was not caused by bad faith on the part of the Union. The Review Officer’s findings were reasonable. The reviewing judge erred in his characterization of the Review Officer’s reasoning, his use of a later overturned authority for an interventionist approach to factual findings, and his application of the reasonableness standard. Given the real risk that the employee could lose in arbitration, there was no basis to say that arbitration was the only viable option for the employee or the bargaining unit. The Union balanced the risk and opportunity and concluded that the settlement would be more beneficial to both the employee and the bargaining unit as a whole, than the risk of outright loss. Undertaking that strategic balance was the function of an exclusive bargaining agent in the enforcement of the collective agreement.

Canadian Union of Public Employees, Local 3912 v. Nickerson, [2017] N.S.J. No. 294, Nova Scotia Court of Appeal, J.E. Fichaud, M.J. Hamilton and E. Van den Eynden JJ.A., July 26, 2017. Digest No. TLD-August282017011