An Air Canada flight attendant who complained about her union for refusing to fight her employer’s mandatory vaccination policy was unsuccessful. The bench of the Canada Industrial Relations Board has just ruled that the union did not fail in its duties to its members by refraining from filing a policy grievance.
The President of the Board, Ginette Brazeau, judged that the union acted correctly towards the union members by choosing another path, that is to devote its resources to individual grievances in order to obtain accommodations for the employees, when possible.
This case concerns the union’s “duty of fair representation” to its members in relation to a vaccination policy implemented unilaterally by the employer.
Ingrid Watson, a flight attendant, attacked the Canadian Union of Public Employees (CUPE) – Air Canada component.
In August 2021, the Government of Canada announced its intention to require all employees in the federally regulated air, rail and marine transportation sectors to be vaccinated, which was confirmed in October.
On August 25, Air Canada announced that it was implementing a mandatory vaccination policy. The union has let its members know it supports the policy to mitigate the risks associated with COVID-19, the decision said. He believed the measure was necessary “to provide a safe working environment for employees and ensure the recovery of the air transport sector. »
As elsewhere, this policy had consequences for employees who refused vaccine doses, which could go as far as unpaid leave or dismissal, except for employees eligible for accommodation.
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The union has sought two legal opinions to determine how to proceed. Both came to the same conclusion: Air Canada’s policy would likely survive a grievance arbitration challenge, and a Canadian Charter of Rights and Freedoms challenge was unlikely to succeed.
Ms. Watson nevertheless insisted on the union filing a grievance against Air Canada’s vaccination policy.
By letter from her lawyer, she claimed that the union was acting in an arbitrary, discriminatory and bad faith manner with respect to its duty to fairly represent its members.
But the union did not flinch, strong legal opinions obtained and consultations held with other unions. However, he told Ms Watson that individual employee complaints would be dealt with on a case-by-case basis and that individual grievances could be presented if discipline was imposed on them.
She filed a complaint, arguing that the union failed to seriously consider the detrimental effect the policy would have on many members of the bargaining unit. According to her, he simply accepted vague conclusions drawn from flawed legal advice, without going any further in the analysis.
The Council dismissed his complaints. The union did not act arbitrarily, he writes. “In the Board’s view, the union has addressed the issues at stake and actively communicated with its members. »
The fact that the federal government issued an order directing airlines to adopt a vaccination policy is also an important distinction from other cases in which employers were not required to do so, it says. in the decision.
There is no absolute right to arbitration or obligation to refer a grievance to arbitration, even if an employee insists, the Board reiterates. This decision is up to the union. It is possible that some of the members disagree, but that does not mean that the union has not acted fairly, the Board ruled unanimously, dismissing Ms. Watson’s complaint.