In a recent decision, the Ontario Labour Relations Board (the Board) dismissed a complaint by a teacher unvaccinated against COVID-19. The teacher claimed that her union, the Ontario Secondary School Teachers’ Federation (the Federation), breached its duty of fair representation under s.74 of the Labour Relations Act.
As detailed below, the Board concluded that the Federation’s decision to effectively represent vaccinated members over its unvaccinated members is not a breach of its duty of fair representation to unvaccinated members.
Tina Di Tommaso (the Applicant) was a secondary school teacher with the Toronto District School Board (the School Board). She took issue with the School Board’s COVID-19 vaccination policy.
The Applicant sent a series of emails to the Federation describing her anger and unwillingness to comply with the policy. In one of the emails, she expressed extensive concern on the scientific acceptance of the COVID-19 vaccine, the government’s vaccination policy, mainstream media, and the policy positions of the Ontario Human Rights Commission and Canadian Human Rights Commission.
The Applicant used these emails, as well as a copy of the School Board’s vaccination policy and a lack of response from the Federation on some correspondence, to show that the union had been acting in a manner that was arbitrary, discriminatory or in bad faith in representing her. She claimed that the Federation was being discriminatory because it was only effectively representing the interests of vaccinated members, not all members.
The School Board had advised the Applicant she would be placed on a non-disciplinary administrative leave of absence without pay for failure to comply with the policy. Upon failure to comply, the School Board did put her on non-disciplinary administrative leave of absence without pay.
The Applicant requested representation for a constructive dismissal claim for failure to comply with the vaccination policy.
Legal concepts involved: arbitrariness, discrimination and bad faith
Section 74 of the Labour Relations Act, titled “Duty of fair representation by trade unions”, states:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The Board defined “arbitrary”, “discriminatory” and “in bad faith” as follows:
- “arbitrary” means conduct which is capricious, implausible or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all the relevant factors;
- “discriminatory” is broadly defined to include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis for doing so; and
- “bad faith” refers to conduct motivated by hostility, malice, ill-will, dishonesty, or improper motivation.
Issues before the Ontario Labour Relations Board
The issue before the Board was whether the Federation had breached its duty of fair representation. In order to determine this, the Applicant had to establish that the Federation acted in a manner that was arbitrary, discriminatory or in bad faith in the representation of employees.
The Board stated that the Applicant’s assertion that the Federation was being discriminatory because it was only effectively representing certain members and not all employees did not breach s.74 of the Labour Relations Act.
The Board used Ford Motor Company of Canada, Limited,  OLRB Rep. 519, which states that a union does have a duty to consider all the interests of its members in the performance of its obligations. However, “it is not a duty which makes the union the guarantor or insurer for every situation in which an individual employee is aggrieved or adversely affected; rather, the statute attempts to have the union consider the position of all groups and to weigh the competing interests of minorities, individuals and other like groups in arriving at its decision.” Therefore, the emphasis is on fairness and acting with the interests of all members in mind, including the majority.
The Applicant did not provide any facts to suggest that the Federation acted without cogent reasons. As a result, the Board concluded that the Applicant had not raised any facts that established the Federation’s conduct to be arbitrary, discriminatory, or in bad faith.
Jurisdiction of the Ontario Labour Relations Board
The Board stated that it was not the forum for debating or complaining about vaccination, scientific studies, the government’s directions, or a particular employer’s policy. It was clear the Applicant disagreed with the School Board’s vaccination policy. However, the Board stated that a duty of fair representation complaint at the Board was about a union’s conduct in the representation of its members, not about the School Board’s policies.
The Applicant requested the Board to order the Federation to file an injunction. The Federation raised questions regarding the Board’s jurisdiction to do so. The Board concluded that even if it had jurisdiction, which remained undetermined here, the usual recourse for a Board order regarding the duty of fair representation was the grievance process. The Board determined that nothing in this application made out a case for a remedy, much less an extraordinary remedy such as an injunction.
The decision in Tina Di Tommaso v. Ontario Secondary School Teachers' Federation makes it clear that a section 74 complaint is not an effective route for employees who wish to challenge their employer’s policy or to have the Board order the employer to change their policies.
This decision defers to a union’s expertise in balancing the individual interests and the majority interests of its members. It also gives unions more ground to trust their proficiency in meeting the duty of fair representation in the performance of their obligations.