Thursday, July 21, 2011

Grievance dismissed to pursue Human Rights remedy

The Human Rights Tribunal is quite exceptional in that a bargaining unit employee can seek a remedy directly against the employer without the requirement of involvement by the union.

For many employees who distrust or dislike their unions, this has some appeal, though there are obvious limitations in the Tribunal's jurisdiction.

The central issue for many unionized employees is that they personally are not, in the strictest sense, parties to grievance arbitration proceedings. So unions can decline to advance the grievance, or settle a grievance without the employee signing off, or proceed in a manner with which the employee disagrees. Moreover, it is very rare that the employee can obtain any remedy against the union, because that turns on a high-threshold test of arbitrary, discriminatory, or bad faith conduct by the union.

Which makes the direct access to the employer available through the HRTO quite valuable, in the appropriate case.

There is some discord in the jurisprudence where both a grievance arbitration and HRTO application are initiated: While they are both ongoing, the HRTO tends to defer the proceeding until the grievance is dealt with. If the grievance process has already been finalized, the HRTO turns to s.45.1 of the Human Rights Code, which permits it to dismiss a grievance if the subject matter has been "appropriately dealt with" in another proceeding.

The meaning of "appropriately dealt with" is pretty loose. In Barker v. SEIU, Arbitrator Surdykowski had made a finding that the Code hadn't been breached, but the HRTO disagreed with his analysis and so concluded that the subject matter wasn't appropriately dealt with, so refused to dismiss the Application. In Rysinski v. Aecon Industrial, the Union had reached a nominal settlement with the employer over the loud objections of the employee, and the HRTO concluded that the subject matter had been appropriately dealt with, so dismissed the Application. By contrast, in Parliament v. Metro Ontario, where the union had declined to refer the proceeding to arbitration, the HRTO concluded that the subject matter was not appropriately dealt with, so did not dismiss the Application.

In other words, if you pursue human rights remedies through another venue, and in particular through a union grievance, it's hard to tell whether or not the right to pursue an HRTO remedy will remain intact.

In the recent case of Paragon Health Care Inc. v. SEIU, Arbitrator Kaplan was faced with an employee who wanted out of the grievance process. Her lawyer asked the Arbitrator to defer jurisdiction to the HRTO, but lacking party status the request was denied. Her lawyer subsequently wrote several strongly worded letters making it clear that she had no intention of being at all involved with the process moving forward. The employer, accordingly, brought a motion seeking dismissal of the grievance, and the Arbitrator allowed the motion.

The question now is whether or not this dismissal actually opens the door to HRTO consideration of the issue. I suspect that it will, but given the way that "appropriately dealt with" has been applied in the past, it's hard to be certain of that.


This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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