Unionized employees generally rely on their unions and the grievance process to address workplace discrimination and other employment issues. However, a human rights complaint is an exception to the rule that unionized employees must deal with workplace issues through their union.
A unionized employee can file complaints at the Human Rights Tribunal of Ontario (HRTO) addressing workplace discrimination based on a specified-Human Rights Code ground, like race, age, ethnicity, gender, gender expression, religion, ability and sexual orientation just like non-union workers. But, they may face some challenges in doing so.
The Unionized Employee and the Weber Rule
In 1995, the Supreme Court of Canada adopted what is called an “exclusive arbitral jurisdiction model” for claims arising under a collective agreement. This means that a unionized employee’s workplace complaints must proceed by arbitration when an issue arises out of a claim that is covered by a collective agreement. The courts have no power (or jurisdiction) in those circumstances.
Eight years later, the Supreme Court of Canada held that employees statutory rights (including under human rights legislation and other employment-related statutes) represent a metaphorical floor beneath which an employer and the union cannot contract. Because of this, labour arbitrators are not only permitted but obligated to apply express anti-discrimination provisions in the collective agreement as well as relevant legislation like the Ontario Human Rights Code when considering a discrimination grievance.
This means that when it comes to workplace issues, in most cases, the unionized employee’s only option is to proceed through the grievance process.
Exceptions to the Rule
Nevertheless, a unionized employee in Ontario can choose to address their discrimination complaints through either the grievance procedure or the human rights tribunal.
The HRTO will refuse to consider a unionized employee’s discrimination application on the basis of their unionization only if they have actually filed a grievance on the same issue. In these cases, the tribunal typically relies on section 45 of the Human Rights Code or rule 14.1 of its Rules of Procedure to either dismiss the application or place it on hold until the grievance procedure is exhausted, when it can consider whether dismissal is appropriate.
The HRTO bases this approach on a long-held legal principle that lawyers call “res judicata” or “issue estoppel”. Basically, a person doesn’t get to litigate the same case twice if they don’t like the outcome the first time (that’s what appeals are for!). This would risk two contradictory decisions or remedies.
Taking this approach, the HRTO will dismiss applications if a grievance has proceeded based on the same facts and human rights issues has already begun and an employee proceeds with filing a claim with HRTO anyway, the HRTO will generally decide to defer considering the application until after it is dealt with in the grievance procedure. If the grievance procedure isn’t done yet but appears to be based on the same facts and issues, the HRTO will normally hold off on dismissal until after a decision on the grievance when it can assess this better.
An Exception to the Exception
In one recent case, Sarah successfully argued that the HRTO should not follow its normal approach. A union member had filed a grievance and a human rights application arising from the same facts, but which were expected to raise different issues. The grievance only argued unjust discipline. The human rights application alleged discrimination with respect to employment because of disability, gender identity, family status and sex, including pregnancy contrary to the Human Rights Code. The union supported Sarah’s client in her argument that she shouldn’t have to wait to wrap up a grievance process which was significantly delayed.
The responding employer argued that the HRTO should stick to its usual practice of deferring the application until after the grievance was dealt with and that the union should raise human rights-related issues in the grievance process.
The HRTO relied on its previous decision in Ali v The Ottawa Hospital and found that overlap between facts between an application and a grievance, in itself, is not determinative to a decision to defer, as decided in. Significantly, there was no indication that the parties to the collective agreement intended to refer the grievance to arbitration any time soon.
In these circumstances, there wasn’t a real risk of inconsistent or contradictory findings. Further, the HRTO reasoned that while the application and the grievance were substantially similar, they also contained significant differences. The application didn’t focus on a single unjust suspension, instead it raised a number of related allegations of discrimination. It also sought different remedies (not just the removal of a discipline record, as is typical in a discipline grievance).
The HRTO opted not to defer considering the application pending the conclusion of the grievance.
Lawyers and unions considering whether an employee is entitled to bring a human rights application at the same time as a grievance need to be cautious not to jump to conclusions. The HRTO will look more deeply at the contents of a grievance and the likelihood of inconsistent results before dismissing or even deferring an application.
Unions should consider possible discrimination claims and carefully word grievances to reflect the complaints they wish to take forward (or to avoid raising issues they don’t consider appropriate to pursue).
Caution for the Federally Regulated Unionized Employee
A small number of workers in Ontario are federally regulated. They may work in industries like trucking, aerospace or banking. The Code doesn’t apply to them. Instead, their anti-discrimination rights come from the Canadian Human Rights Act. In contrast with the provincial Code, the federal Act permits the Canada Human Rights Commission’s dismissal of human rights complaints by unionized employees even if they have never filed a grievance. Instead, it requires them to have exhausted the grievance process before filing a complaint- and can then still dismiss on the basis of res judicata.
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