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Unionized Workers with Human Rights Issues – You Should Choose Your Forum at the Outset!

Posted On: January, 21 2015

On a daily basis, we receive calls from unionized workers who are shocked to discover that their human-rights related grievance is subject to the nearly-unfettered discretion of their union representatives.  When we tell unionized workers that they are not a party to their grievance, many can hardly believe it.  They are even more surprised to discover that the union can settle or abandon the grievance without the worker’s agreement.  Many simply cannot believe that what they had thought was their grievance is technically the union’s grievance.

Under the Labour Relations Act, any alleged human rights breach occurring in a unionized workplace can be the subject of a grievance brought by the union against management.  The Supreme Court’s 2006 decision in Tranchemontagne also confirmed that grievance arbitrators are obligated and empowered to apply the Human Rights Code to any grievance that comes before them.

When faced with a human rights-related issue in the workplace, many unionized workers turn to their union first, expecting that they will receive the support they need after paying dues for many years.  Indeed, many human rights grievances are aggressively advanced by unions and resolved to the satisfaction of the member.  However, many union members also become dissatisfied with the union’s handling of their grievance and begin to look for alternatives, including hiring their own lawyer.

The point of this blog entry is to suggest that if you are looking for your own lawyer after the grievance process has started, you are likely too late to do much about it without risking that any Application you make to the HRTO will be deferred.

The HRTO has clearly established in its jurisprudence that it will defer almost any Application if there is already a parallel labour grievance dealing with the same factual issues.

Melville v. Toronto (City), 2012 HRTO 22

In January of this year, Chair David Wright of the HRTO released his decision in Melville.  In this case an Applicant brought a Charter challenge against the HRTO’s deferral policy, alleging that it was a breach of fundamental rights to defer an HRTO Application on the basis that a grievance had been filed dealing with the same issue.  Chair Wright denied the Charter Application and confirmed the validity of the HRTO’s approach in dealing with Applications which were also the subject of a labour grievance.

The HRTO’s message appears to be clear: union members with human rights issues have a choice to make at the outset of their legal process.  They can either seek support from their union to file a grievance, or they can go on their own to file an Application at the Human Rights Tribunal.  You cannot do both, or at least, if you do both, you can expect that your HRTO Application will be deferred pending the outcome of the grievance process.

For union members there are a number of factors to consider when deciding which forum is the best one for advancing your human rights issue (this is a non-exhaustive list):

  • union representation is low-cost; legal fees are usually covered by your dues
  • you will most likely have to pay out of pocket to be represented by a private lawyer at the Human Rights Tribunal (unless your union agrees to fund or subsidize your legal fees, or unless the Human Rights Legal Support Centre agrees to take your case)
  • self-representing at the Human Rights Tribunal can be intimidating and procedurally confusing
  • how strong is your relationship with your local executive?
  • how strong is your union in relation to management?
  • does your union have a good track record with advancing human rights issues at arbitration?
  • will your union give you assurances that they will follow your instructions with regard to handling/settling the grievance?
  • are there other remedies you are seeking which fall under the Collective Agreement, and are not human rights issues?

These are some of the questions to ask when deciding what forum in which to pursue your human rights claim.  The important message here is to seek independent legal advice before making your decision, and to remember that as soon as the issue is in the union’s hands, it may already be too late to commence an Application before the HRTO without risk of it being deferred.


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