No. 05–Reporting a Complaint of Unjust Labor Practices

Infocircular Announcement

Welcome to another installment of our infocircular series, brought to you by the administrative team at the CIRB. These circulars aim to provide employees, trade unions, and employers with a general understanding of Board procedures and processes. Please note that this infocircular is an informal resource and should not be considered legally binding.

Filing a Complaint for Unfair Labor Practice

What constitutes an unfair labor practice complaint?

An unfair labor practice complaint refers to an allegation that an employer, trade union, or individual has engaged in conduct that is prohibited under the Canada Labor Code (Part I – Industrial Relations).

Illustratively

• An employer may face an allegation of modifying employment conditions after receiving notice of an application for certification (section 24(4)), engaging in negotiations in bad faith (section 50), interfering in union affairs (sections 94(1) and (2)), or committing prohibited acts (section 94(3)).
• A trade union may be accused of breaching its duty of fair representation (section 37) or fair referral (section 69), negotiating in bad faith (section 50), committing prohibited acts (section 87 or 95), or failing to provide a financial statement to a member (section 110).
• Lastly, an individual may be alleged to have forced another person to join or leave a labor union (section 96).

Who is eligible to file a complaint?

According to section 97(1), any individual or organization is authorized to file a complaint. If the complaint is filed on behalf of another individual or organization, it must be signed by the appropriate officer or a person authorized in writing by the complainant, as per section 6 of the Board's Regulations.

How do you initiate a complaint?

Please note that the Board does not provide complaint forms. Therefore, a complainant may simply file a complaint in the form of a letter addressed to the Registrar at one of the Board's offices. The complaint should be signed and include all relevant information and documentation available to the complainant, such as names, addresses, telephone numbers of the individuals involved, affected provisions of the Code, the date of the incident that prompted the complaint, a comprehensive statement of facts, specific details, and the desired remedy (see Board Regulation 32).

Important: To expedite the processing of your complaint, please provide as much complete information as possible.

When should you submit a complaint?

In accordance with section 97(2), complaints should be submitted 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 that led to the complaint.

It is important to note that different time frames apply when filing a complaint against unions regarding discriminatory treatment and disciplinary actions against members (sections 95(f) or (g)). These time limits are governed by sections 97(4) and (5) of the Code.

If a complaint involves multiple alleged Code violations, it may fall under both sections 97(2) and 97(4). Therefore, complainants should ensure compliance with the appropriate time limits when filing a complaint.

Where do you submit a complaint?

Complaints may be submitted to any of the Board's offices listed in this Circular. You may send the complaint by hand, courier, or mail. The complaint will be considered filed on the date the Board receives it. However, if registered mail is used, the filing date will be the date the complaint was mailed to the Board, as per Board Regulation 8.

What happens after a complaint is filed?

Once a complaint containing sufficient information is filed, the Board's Registrar will acknowledge receipt of the complaint and provide a copy to the affected parties, including individuals, trade unions, or employers. The Registrar will also provide instructions for replying and set a deadline for submitting the response (Board Regulation 33). In cases where the Board's staff identifies a complaint as a priority, the Registrar will expedite the process to address any issues that may be causing significant harm to the complainant.

The customary practice is for the Registrar to designate a representative specializing in labor relations, who will reach out to the involved parties in order to facilitate resolution of the complaint. In the event that an agreement cannot be reached, the representative is obligated to refer the complaint to the Board for formal judgment. However, the representative will only disclose information regarding the settlement efforts to the Board upon specific request by the parties involved.

For unresolved complaints, the representative will compile a comprehensive report to be submitted to the Board, with a copy sent to each party. The report presented to the Board will not include any confidential information provided during the settlement attempts.

If a complaint remains unsettled, the Board may arrange for a hearing at a convenient location and inform the parties of the date and location. However, the Board reserves the right to decide on the complaint without conducting a public hearing if it deems that a hearing would not align with the objectives of the Code. In such cases, the Board's decision is based on the representative's report, the evidence and submissions submitted by the parties, and the requirements established by the Code. This elucidates the importance of comprehensive and detailed complaints, replies, and submissions.

Furthermore, the Board has the authority to dismiss complaints that could be resolved through the grievance process and arbitration (section 98(3)), and under section 16(o.1), it "may decline to consider, or dismiss, a matter due to lack of jurisdiction or insufficient evidence."

Once the evidence and arguments presented at a hearing or through written submissions have been examined by a Board panel, a decision is reached. This decision is then communicated to the parties in writing. In certain cases, the Board may opt to deliver its decision orally at the conclusion of the hearing, ultimately confirmed in writing shortly thereafter.

If the Board upholds a complaint, it may impose remedies that focus on restoring the complainants to the position they would have been in had the violation not occurred, rather than exacting punishment on the offending party. Remedies may encompass compensation for lost remuneration, reinstatement of employees, or the revocation of disciplinary measures. However, in section 37 complaints (pertaining to the duty of fair representation), the Board may permit the grievance to proceed according to the terms of the collective agreement. The Board does not possess the authority to impose fines on parties found to be in breach of the Code. The Board's remedial powers are outlined in sections 99 and 99.1 of the Code: section 99(1) addresses violations of specific sections, section 99(2) allows for general alternative or additional remedies, and section 99.1 deals with the certification of trade unions in the absence of sufficient evidence.

Establishing Proof

Typically, the burden of proof lies with the individual filing the complaint with the Board, who must provide evidence substantiating the alleged violation of the Code. However, there is an exception: if an individual claims that another party has violated section 94(3), the burden of proof shifts to the responding party if it contests the allegation (section 98(4)). For instance, this would apply to an accusation of unlawful termination of employees for engaging in union activities, in which case the employer, as the respondent, would need to present evidence justifying the employees' dismissal.

Date modified: 2020-12-17 Page 2

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