The Public Service Labour Relations Board (the Board) certifies employee organizations as bargaining agents for given bargaining units. As such, the employee organization has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit. By the same token, an employee cannot grieve the interpretation or application of a collective agreement (or of an arbitral award), nor refer such a grievance to adjudication, without the support of his or her bargaining agent. Thus, in some cases, an employee will not be able to proceed with what he or she considers a legitimate grievance. This is where the issue of the duty of fair representation arises.
Section 187 of the PSLRA provides that no bargaining agent for a bargaining unit, and none of its officers and representatives, may act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit. However, it is important to note that within the legal parameters of section 187, the bargaining agent has discretion to determine the scope of representation. In Canadian Merchant Service Guild v. Gagnon et al.,  1 S.C.R. 509, the Supreme Court of Canada stated the following concerning the principles that form a bargaining agent’s duty of representation:
For further information about this decision please refer to the following website:
Arbitrary conduct generally refers to instances in which a bargaining agent has not sufficiently investigated or handled an employee’s case or grievance or has not adequately considered the employee’s interests. It can also refer to incidences of serious negligence.
Discriminatory conduct refers to the biased and unfair treatment of an employee based on illegal or prohibited grounds, such as age, race, religion, sex or medical condition.
Actions made in bad faith are generally described as those motivated by personal feelings of hostility or ill will toward an employee. The term may also include deceitful or dishonest conduct.
In deciding whether or not a bargaining agent has acted in a manner that is arbitrary, discriminatory or in bad faith, the Board will assess the bargaining agent's conduct as to how it handled an employee's case. It will look at how the bargaining agent acted and the process it used to make its decisions concerning the employee's case. The Board will consider whether the bargaining agent put its mind to the merits of the employee's case, considered relevant factors and made an objective and rational judgment about how to resolve the matter. The Board does not assess the merits of the employee's grievance or second-guess the actual decision made by the bargaining agent as to whether or not it will take a grievance forward.
To date, the Board has allowed only a small number of complaints involving the duty of fair representation. As the burden of proof lies with the complainant, there are a number of factors should be considered before submitting a complaint to the Board:
To file a complaint with the Board concerning the duty of fair representation, please fill out Form 16, Complaint Under Section 190 of the Act, available on the Board’s website: http://www.pslrb-crtfp.gc.ca/forms/form16.pdf.
The complaint must be filed in duplicate (the signed original and one copy), in paper form. The complaint is to be addressed to the Executive Director of the Board. The complaint may be sent by fax (and will be deemed to have been received on the date of the fax transmission), but the paper copy must then be sent to the Executive Director as soon as possible. Complaints received after 4 p.m. local time will be considered to have been received the day following that is not a Saturday or a holiday. For information regarding receipt dates, please refer to section 9 of the Public Service Labour Relations Board Regulations.
A complaint must be made to the Board not later than 90 days after the date on which the complainant knew or should have known of the action or circumstances giving rise to the complaint.
The PSLRB’s Policy on Openness and Privacy explains why information filed with the PSLRB is generally available to the public and why it could be reported in a decision posted on the PSLRB website and distributed to publishers.