Duty of Fair Representation Explained - When Does DFR Apply?

The duty of fair representation, often called DFR, is one of the most important rights a unionized employee has against their union.

In Ontario, the Labour Relations Act, 1995 says a union must not act in a manner that is arbitrary, discriminatory, or in bad faith in representing employees in the bargaining unit.

That sounds simple, but many employees misunderstand what DFR does and does not do. DFR does not mean the union has to do everything the employee wants. It does not guarantee arbitration. It does not require perfect representation. But it does require the union to make representational decisions honestly, rationally, and without discrimination or bad faith.

When Is DFR “At Play”?

DFR can apply whenever the union is acting in its representational role in connection with the employer.

That means DFR may apply:

before a grievance is filed;

when the union decides whether to file a grievance;

while the union processes a grievance;

when the union decides whether to settle;

when the union decides whether to take the grievance to arbitration;

during negotiations affecting employee rights.

The OLRB explains that DFR applies to union representation of an employee “in connection with” the employer, including union decisions in processing grievances and some negotiations.

So DFR is not only triggered after a grievance is filed. It can arise earlier, when the employee first asks the union for help.

What Does “Arbitrary” Mean?

A union may act arbitrarily if it handles a matter in a superficial, careless, indifferent, or reckless way.

For example, a DFR issue may arise if the union refuses to file a grievance without reading the employee’s documents, ignores the employee until the deadline passes, fails to investigate obvious facts, or drops a grievance without considering the employee’s response.

The OLRB gives an example of arbitrary conduct where a union meets with the employer, receives a different version of events, and then drops the grievance without giving the grievor a chance to answer the employer’s version.

Not every mistake is arbitrary. The issue is usually whether the union turned its mind to the matter in a meaningful way.

What Does “Discriminatory” Mean?

Discriminatory representation may arise where the union treats an employee differently because of a protected ground, such as disability, race, sex, age, creed, family status, gender identity, gender expression, sexual orientation, or another protected ground under the Human Rights Code.

For example, if a union refuses to advance an accommodation grievance because it stereotypes the employee’s disability, or treats the employee less seriously because of race, sex, age, or family status, DFR and human rights concerns may overlap.

The HRTO resolves discrimination and harassment claims under the Human Rights Code, including employment-related claims.

What Does “Bad Faith” Mean?

Bad faith usually involves dishonesty, improper motive, hostility, revenge, personal conflict, or acting for a purpose unrelated to fair representation.

A union may act in bad faith if it refuses to help because a steward dislikes the employee, because the employee previously criticized union leadership, or because the union is trying to punish the employee for reasons unrelated to the merits of the workplace dispute.

Bad faith is serious, but it can also be difficult to prove. Employees should keep written records, emails, meeting notes, timelines, and copies of documents.

What DFR Does Not Mean

DFR does not mean the union has to take every grievance to arbitration.

The OLRB states that the union makes the final decision about how far a grievance should be processed and whether it should go to arbitration. The legislation does not require a union to proceed to arbitration simply because the employee wants that.

DFR also does not mean the union must treat the employee’s interests as the only relevant factor. The OLRB notes that a union may consider legitimate factors beyond the grievor’s wishes, including the effect of a grievance on other employees in the bargaining unit, the strength of the case, and the time and cost involved.

Examples of Potential DFR Problems

A DFR issue may exist where the union:

ignores the employee’s request for help;

misses a grievance deadline without explanation;

refuses to file a grievance without reviewing the facts;

fails to speak with key witnesses;

drops the grievance after hearing only the employer’s version;

settles without considering the employee’s position;

acts out of personal hostility;

treats the employee differently because of a protected human rights ground;

refuses to address a serious termination or discipline issue for an improper reason.

A weak outcome is not automatically a DFR breach. The focus is on the union’s conduct and decision-making process.

What Should an Employee Do Before Filing a DFR Application?

Before filing a DFR application, the employee should usually ask the union for written reasons. The employee should also gather the collective agreement, grievance documents, emails, text messages, discipline letters, termination letters, medical notes, investigation reports, and any settlement proposals.

The OLRB says DFR applications must describe the facts fully and in an organized way, including what happened, where and when it happened, who acted improperly, and what order the applicant wants the Board to make.

Can an Independent Lawyer Help With DFR?

Yes. An independent lawyer can help a unionized employee assess whether the problem is actually a DFR issue, a grievance issue, a human rights issue, or something else.

This is important because disappointment with a union decision is not enough. The question is whether the union acted arbitrarily, discriminatorily, or in bad faith.

If your workplace dispute also involves harassment, discrimination, accommodation, discipline, or a flawed investigation, review Vanguard Law’s pages on harassment and discrimination, toxic work environment, and workplace investigations.

Bottom Line

DFR applies when the union is representing, or deciding whether to represent, an employee in relation to the employer. It can apply before a grievance is filed, during the grievance process, at settlement, and when the union decides whether to proceed to arbitration.

A union does not have to be perfect. It does not have to do everything the employee wants. But it must not act arbitrarily, discriminatorily, or in bad faith.

If your union has refused to help, dropped your grievance, missed a deadline, ignored key evidence, or acted unfairly for an improper reason, contact Vanguard Law to discuss whether independent legal advice may help.