Kevin Marshall
August 7, 2023
When you work in a unionized job, you must address workplace concerns through your union. But what if the union does not effectively advance these concerns? What are your rights, aside from the grievance process? Here are strategies to assert your rights:
Human Rights Complaint
With one exception, unionized employees are required to depend on their unions to address any workplace issues, such as terminations or suspensions, through the grievance process.
The exception is human rights complaints. A human rights application may be filed up to one year after the date of the last (or only) human rights violation.
Union workers may file complaints (referred to as applications) with the Human Rights Tribunal of Ontario (HRTO) if they are facing or have faced workplace discrimination on grounds such as disability, race, age, ethnicity, gender or creed (religion).
Unionized employees in Ontario have the option to choose between the grievance process or the HRTO application to address discrimination issues. However, the HRTO will dismiss such applications if the issue has already been grieved or is in the process of being grieved.
Similarly, the Canadian Human Rights Act applies to federally regulated employees, who may make applications to the Canada Human Rights Commission (CHRC) for discrimination issues. However, the Act requires that unionized workers complete the grievance process before filing a complaint to the CHRC.
Right to Refuse Unsafe Work
Under the Occupational Health and Safety Act, Ontario workers have the right to refuse work they believe is unsafe or there is a danger of workplace violence. Workers in federally regulated industries have similar protection under the Canada Labour Code.
Whistleblower
The Employment Standards Act, 2000 (Ontario) and its federal equivalent provides protection in cases where employees are dismissed, suspended, transferred, or have been subjected to reprisals for disclosing workplace wrongdoing or corruption.
In practice, these protections are weak. Unionized workers seeking to disclose a culture of wrongdoing and indifference to misdeeds may find that the union often takes the side of the many over the one.
Duty of Fair Representation
The unionized worker does not have an absolute right to a grievance. For example, if the union follows legal advice that it should not grieve, and the worker complains to the Labour Relations Board, the Board will typically rule in favour of the union. Likewise, unions are permitted to consider legitimate factors other than the interests of the unionized worker in deciding whether or not to proceed with a grievance.
However, if the union has not “fairly” represented a worker, the worker may file a complaint with the Ontario Labour Relations Board (OLRB). Federally regulated workers can file a complaint with the Canada Industrial Relations Board (CIRB).
“Fair representation” means that, in representing employees to the employer, the union shall not act in a manner that is arbitrary, discriminatory, or in bad faith.
Acting in an “arbitrary” manner includes conduct that is superficial, indifferent or in reckless disregard for the worker’s interests. For example, this would include not pursuing a grievance merely because the employer’s version of events was at odds with that of a unionized worker. It would not include instances where the union made inadvertent errors or used poor judgment.
“Discriminatory” conduct by the union means allowing factors such as disability, creed, race, gender, age, etc. to influence the way it handles a grievance or application.
Conduct deemed in “bad faith” includes decisions motivated by ill-will. For example, a worker would likely succeed if there is adequate proof that the union decided not to grieve because it was influenced by personal hostility, revenge, or dishonesty.
Seeking help from a lawyer
In most cases, you cannot hire your lawyer if you’re already represented by a union. However, if you believe you are receiving inadequate representation, you would be wise to consider obtaining a second legal opinion from an employment law lawyer.
Exceptions:
You can hire your own lawyer to bring a Human Rights application or file a complaint against the union with the OLRB or CIRB. An employment law lawyer would help you to draft your complaint with proper wording, organize your evidence effectively, and present your arguments succinctly at a mediation or hearing.
