No. 05–Filing an Unfair Labour Practice Complaint
The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
FILING AN UNFAIR LABOUR PRACTICE COMPLAINT
What is an unfair labour practice complaint?
An unfair labour practice complaint is an allegation that an employer, a trade union or an individual has engaged in an activity that involved prohibited conduct under the Canada Labour Code (Part I–Industrial Relations).
- An employer can be alleged to have altered conditions of employment after notification of an application for certification has been made (section 24(4)), bargained in bad faith (section 50), interfered in union affairs (sections 94(1) and (2)), or committed prohibited acts (section 94(3)).
- A union can be alleged to have breached its duty of fair representation (section 37) or its duty of fair referral section 69), bargained in bad faith (section 50), committed prohibited acts (section 87 or 95), or not having provided a financial statement to a member (section 110).
- And any person can be alleged to have forced another person to become or cease to be a union member (section 96).
Who may file a complaint?
Pursuant to section 97(1), any person or organization may file a complaint. If a complaint is filed on behalf of another person or an organization, it must be signed by the appropriate officer or by a person authorized in writing by the complainant in accordance with section 6 of the Board's Regulations.
How do you file a complaint?
The Board does not provide complaint forms; therefore, a complainant may simply file a complaint by way of a letter, addressed to the Registrar at one of the Board's offices. The complaint must be signed and should contain all relevant information and documentation that the complainant, the person making the complaint, has available, i.e. names, addresses and telephone number of the persons involved, provisions of the Code affected, the date of the incident giving rise to the complaint, a complete statement of facts and particulars, and the remedy requested (see Board Regulation 32).
Note: In order to avoid unnecessary delays in processing the complaint, the information provided should be as complete as possible.
When should you file a complaint?
Pursuant to section 97(2), complaints should be filed no later than 90 days from "the date on which the complainant knew, or in the opinion of the Board ought to have known, of" the incident leading to the complaint.
Time frames for filing a complaint against unions dealing with the discriminatory treatment and discipline of members (sections 95(f) or (g)) differ and are governed by sections 97(4) and (5) of the Code.
If a complaint involves several alleged violations of the Code, it may be subject to both sections 97(2) and 97(4). Complainants should therefore make sure they comply with the appropriate time limits when filing a complaint.
Where do you file a complaint?
Complaints may be filed at any of the Board's offices listed in this Circular. The complaint may be sent by hand, by courier or by mail. It will be considered filed as of the date the Board receives the complaint, or under Board Regulation 8, the date of filing is the date the complaint was mailed to the Board when registered mail is used.
What happens when a complaint is filed?
When a complaint containing sufficient information is filed, a Registrar of the Board will acknowledge receipt of the complaint and forward a copy to those persons who are affected, i.e. an individual, a trade union or an employer. The Registrar will give these persons instructions for replying and a deadline to file the reply (Board Regulation 33). When dealing with complaints identified by the Board's staff as a priority, the Registrar will speed up the process in order to deal with any issue that may be causing serious harm to a complainant.
The Registrar usually appoints an industrial relations officer, who will contact the parties in order to assist them in resolving the complaint. If the parties are unable to reach a settlement, the officer must refer the complaint to the Board for adjudication. The officer will only provide the Board with details regarding the settlement efforts if the parties so request.
In any complaints that remain unresolved, the officer will file a detailed report with the Board and will send a copy of the report to the parties. The report to the Board will not include any confidential information provided to the officer by any of the parties during the settlement attempts.
If a complaint is not settled, the Board may schedule a hearing, in a convenient location, and advise the parties of the time and place. However, any complaint filed may be decided without holding a public hearing, if the Board feels that a hearing would not be consistent with the objectives of the Code. Should the Board decide not to hold a hearing, it will base its decision on the officer's report, the evidence and submissions filed by the parties and the requirements of the Code. This is one of the reasons why the complaint, the replies and the submissions must be as complete and as detailed as possible.
Moreover, the Board can refuse to hear complaints dealing with matters that could be referred to arbitration through the grievance process (section 98(3)) and, under section 16(o.1), it "may summarily refuse to hear, or dismiss, a matter for want of jurisdiction or lack of evidence."
Once a Board panel has considered the evidence and arguments presented either at a hearing or by way of written submissions, it will arrive at a decision. That decision will then be sent to the parties in writing. In some cases, the Board may choose to give its decision orally at the conclusion of the hearing, to be confirmed in writing shortly afterwards.
If the Board upholds a complaint, it may order a remedy that is not aimed at punishing the party that committed an infraction, but rather at putting the complainants in the position they would have been in had the infraction not occurred. The remedies could include compensation to the employee for remuneration lost, reinstatement of the employee, or revocation of disciplinary action taken. However, in the case of section 37 complaints (duty of fair representation), the Board may allow the grievance to be pursued according to the collective agreement. The Board does not have the power to fine a party who has been found to be in violation of the Code. The Board's remedial powers are described in sections 99 and 99.1 of the Code: section 99(1) deals with violations of specific sections; section 99(2) provides for general alternatives or additional remedies; and section 99.1 deals with certification of trade unions despite lack of evidence.
Burden of Proof
Normally the person filing the complaint with the Board is expected to provide the evidence to demonstrate that a violation of the Code has occurred. However, there is an exception: where an individual alleges that a person has violated section 94(3), the respondent party must assume the burden of proof if it challenges the allegation (section 98(4)). For example, this would include an allegation of unlawful dismissal of employees for union activity whereby the employer, as respondent, would have to lead evidence as to why the individuals were fired.
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