Case information

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Labour relations - Unions - Complaints - Duties - Representation of members - Applicant’s complaint that his union violated its duty of fair representation by refusing to represent him in the grievance procedure pertaining to his entitlement to a retirement allowance - Whether the retiring allowance benefits of a union member can be taken away when terminated by one employer in a multi-employer industry - Whether Board was bound to hold hearing - Whether Board erred in concluding that material provided was insufficient to enable it to decide complaint.

Thien was an employee of the Respondent, Western Stevedoring Limited, who was terminated for cause on July 21, 1997 for deliberately misleading his employer and the Trustees of the Waterfront Foremen’s Welfare Plan with respect to his disability and ability to work. The following month, his union (“International Longshore and Warehouse Union”) initiated a grievance, disputing the termination, but after receiving legal advice on the merits, it advised Thien that it would not be proceeding with the grievance. Thien’s complaint to the Board pursuant to s. 37 of the Code was dismissed as was his complaint before the Canadian Human Rights Commission. In May 2004, Thien applied for a retiring allowance under the provisions of the Retiring Allowance Agreement (“RA Agreement”) between the union and the Waterfront Foremen Employers’ Association. He was found to be ineligible by the Trustees because he was not employed at the time of retirement as required by the RA Agreement. Thien then filed a grievance claiming entitlement to the retiring allowance. The union obtained a legal opinion on the merits of the grievance that Thien had no chance of success whatsoever because his employment had been terminated for cause six years earlier. The union informed Thien that it would not represent him. He filed a complaint with the Canada Industrial Relations Board pursuant to s. 37 of the Code that the union had breached its duty of fair representation.