Ontario’s labour legislation, like British Columbia’s, provides an opportunity for union members to bring complaints against their union to the Labour Relations Board asserting that the union did not properly represent their interests. On January 10, 2022, the Ontario Labour Relations Board dismissed the complaint of several unvaccinated healthcare personal support workers. The Board held that the applicants were unhappy about the employer’s COVID-19 vaccination policy and were unhappy that the union had not insulated them from their decision to remain unvaccinated. However, it was found that this did not make out a breach of the duty of fair representation under the Labour Relations Act.
The applicants alleged that the Service Employees International Union, Local 1 Canada (the “Union”) breached its duty of fair representation in respect of their employment with CarePartners (the “Employer”).
In the fall of 2021, the employer introduced a COVID-19 vaccination policy, which required employees to be fully vaccinated by no later than November 30, 2021. Following the release of the policy, the Union advised its membership that it had sought legal advice on the employer’s policy and that the advice was clear: “given the current state of the law and the unprecedented challenges of COVID-19, mandatory vaccination policies will most likely be upheld.” The Union advised that a grievance could be filed which would be held in abeyance “pending case law.” The Union warned that such grievances were unlikely to succeed, and that absent a valid exemption, employees who refused to be vaccinated risked discipline or dismissal.
The application was about the employer’s policy, the applicants’ decision to remain unvaccinated, and their belief that the Union should support their position without qualification or question. The arbitrator found that this was not an application about the Union’s conduct in any way being arbitrary, discriminatory or in bad faith.
The Board had previously concluded, a duty of fair representation application is about a union’s conduct in the representation of its members and is “not the forum for debating or complaining about vaccination in general, this vaccine in particular, scientific studies, the government’s directions, and/or a particular employer’s policy”: Tina Di Tommaso v Ontario Secondary School Teachers’ Federation, 2021 CanLII 132009 (ON LRB).
To the extent that the applicants sought to challenge the employer’s policy and/or to have the Board order the employer to change that policy or provide compensation, a section 74 complaint was simply not the right forum and those remedies are not available.
The Union made clear to its members the legal advice that it had received and what it had determined to do in response. The Union was not required to provide its unvaccinated members with encouragement or a rosy outlook. The Board held that it was fair and prudent for the Union to provide a clear and frank assessment of the situation based on legal advice received.
With respect to the applicant’s complaints regarding the grievance filed by the Union, the Board made no determination here on whether the Union was required to file a grievance. However, it was noted that the Union was not automatically required to do so and that the Union was entitled, and indeed required, to consider the interests of the membership as a whole.
Finally, it was held that the applicants had not asserted any basis upon which the Board could conclude that the Union breached its duty of fair representation in how it was moving the grievance through the grievance procedure set out in the collective agreement. The Union had indicated that a grievance could be held in abeyance, but that had not happened yet and any determination on such a decision would be premature. On its face, a decision to watch “pending case law,” particularly on an emergent issue and at a time when many arbitration cases are known to be proceeding on vaccination policies across the province, is anything but arbitrary, discriminatory and/or in bad faith.
The applicants requested that the Board require the Union to pursue their concerns more forcefully and quickly. In the absence of the Union acting in a manner that was arbitrary, discriminatory or in bad faith, the Board declined to grant a remedy.