I was on the road this morning, reminding myself why I dislike driving in winter, and on 102.1 (the "Edge"), I heard the radio host Josie Dye discussing a story she had read about in the news, involving a TTC driver being investigated for eating a chocolate bar while driving. You can read about the story in the Toronto Star.
Josie questioned the severity of such an allegation. The prospect of this employee being suspended or even fired for such an incident seemed absurd to her. It's a chocolate bar. She acknowledged the TTC's statement that drivers are prohibited from eating or drinking while operating a bus, but argued that eating a chocolate bar is not necessarily the same as eating a full three-course meal behind the wheel. (Well, I'm paraphrasing - the point was about the same.) When one of her callers suggested, albeit not in so many words, that we need a bright line rule about eating, rather than fuzzy contextual analyses, Josie argued the contrary, that context counts for a lot: We need to use common sense.
Now, I want to step back for a second and say that, on the TTC statements that I'm reading, I see absolutely no evidence for the proposition that this employee has been suspended pending investigation, or that the employee is likely to face suspension or discharge for this misconduct. The only real facts that appear in the news story are that the employee was accused of eating a chocolate bar; eating breaches TTC policy; and the TTC is investigating. This all seems quite reasonable to me. A "no eating or drinking" policy seems to make sense in my mind, and investigating when there's an allegation of a breached policy also makes sense. I wouldn't advocate a serious penalty for a first offence under the circumstances described, but this all seems legit.
That being said, Josie is absolutely right about the contextual approach. If a driver was fired for eating a chocolate bar and thereby breaching policy, and it were a first offence (again, we don't know this), then there's little doubt that an arbitrator would reinstate the employee. It is a relatively minor offence, and even though it is safety-related the actual implications of the conduct are fairly insignificant. (Heck, there was one case where a police dispatcher was reinstated after being fired for stealing chocolate bars from the workplace concession machine.) On the other hand, if the conduct complained of posed a serious and imminent risk to the public, or was otherwise unlawful (i.e. talking on a cell phone), then it would be more serious and potentially attract more serious penalties.
Josie went on to note that there may be perfectly reasonable excuses for eating a chocolate bar. What if the driver was diabetic and needed to keep his blood sugar up? Or maybe not diabetic, but tired and needing a pick-me-up for safety-related concerns?
I have to disagree with Josie about these, to some extent. A case involving a diabetic driver would be extremely complicated, partly because she's right - failure by a bus driver to properly manage the condition would be extremely dangerous to the general public. There's a presumptive obligation to accommodate, that an employer may have to permit a diabetic employee to snack as necessary...however, with the lack of supervision and peer interaction on the job, the significantly safety-sensitive aspects of driving a bus, and potential hazards caused by the necessity of snacking while driving, the TTC would likely have an argument against needing to accommodate.
As for a tired driver needing a pick-me-up...that's not an excuse, in my mind. An employer such as the TTC has a right to expect its drivers to show up for work bright-eyed and alert, not blurry-eyed and groggy with an extra large coffee in hand. It comes down to how you take care of yourself, for which we are all personally responsible. Even as a lawyer, I consider a good night's sleep to be important, to be sharp and doing my best work for my clients the next morning. Tiredness causes mistakes. On the road, mistakes can be life-or-death. So having a chocolate bar because "I stayed up too late last night, so I needed to address my tiredness" is actually more serious in my mind than having one just because "I felt like indulging my sweet tooth." Now, if I were a TTC driver kept up all night by a colicky newborn or some other factor outside of my control, and got up in the morning feeling unable to safely operate a bus, then I would expect that the appropriate resolution would be to alert my supervisor to the situation before getting behind the wheel, rather than by waiting until I got caught with a coffee or chocolate bar and then trying to justify my conduct retroactively.
*****
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.
Showing posts with label grievance arbitration. Show all posts
Showing posts with label grievance arbitration. Show all posts
Friday, January 13, 2012
Wednesday, December 28, 2011
Discharged Richmond Hill bargaining unit member can't sue in wrongful dismissal
I've mentioned this before: Members of bargaining units cannot sue their employers in Court for matters related to their employment. This is a rule that is very firmly entrenched in the law, and there has been no sign of budging, yet we keep seeing cases crashing against this wall.
In the recent case of Doobay v. Town of Richmond Hill, Cyril Doobay became the most recent plaintiff whose case fell on jurisdictional bases, suing his employer for firing him in 2003 because he was drunk on the job.
He grieved the termination, and CUPE argued that the penalty should be reduced to accommodate his disability - alcoholism. The arbitrator dismissed the grievance on August 24, 2004. The arbitrator acknowledged the alcoholism as an issue (as well as the fact that the grievor had sought treatment), but found that reinstatement was impossible without the grievor taking full responsibility for his misconduct, which he had not.
Then, more recently, on November 4, 2010, he issued a statement of claim.
There are a lot of big problems here.
Firstly, there's the problem of delay. For claims discovered before January 1, 2004, there was a six year limitations period. For claims discovered since then, we have had a 2 year limitations period. Disability issues (probably including alcoholism) can, in some circumstances, push back limitations periods...but in this case, that wouldn't really help Mr. Doobay, because if the claim was discoverable in 2003, then he had until 2009 to bring an action (which he did not), whereas if the discoverability date was pushed to 2004, that would only give him to 2006 anyways. Limitations periods are fairly difficult to get around, in most cases. The logic is that the limitations periods usually give a person *lots* of time to initiate a legal action, so if someone misses the deadline, there had better be a really good reason for it. So this wall is pretty tough to get over. If you can't do it, the action gets dismissed.
The second problem is what we call "res judicata" - the issue has been decided before, by the arbitrator. Justice Lauwers found that this issue was res judicata (which in almost all cases results in dismissal of the action), but this wall was perhaps not so high, for a couple of reasons:
But what becomes more interesting is the costs analysis. You see, counsel for the Town sent a detailed letter to Mr. Doobay's lawyer explaining why the action was doomed to fail, and tried to use that letter to justify seeking substantial indemnity costs - i.e. costs on an elevated scale - in the amount of nearly $15,000. There was some discussion as to whether the letter constituted an offer to settle; the judge found that it did not, as there was no real offer to compromise, and in any event the rules regarding offers to settle (Rule 49) don't really speak to outright dismissals of actions in any event, and don't entitle a successful defendant to substantial indemnity costs.
So Rule 49 really wasn't the way to go on that. But the Court retains discretion to award substantial indemnity costs in any event, so one might have thought that the judge would have appreciated the fact that the defendant had tried to avoid the necessity of a motion by pointing out to the plaintiff the incontrovertible case law that would certainly lead to the dismissal of the action. I don't know what led to the issuance of a statement of claim in the face of that doctrine, and I'm not going to speculate, but there doesn't seem to be any reason why the plaintiff should have forced the Town to incur the legal fees of bringing the motion, once it had full particulars of the Town's position.
No such luck - ultimately, the judge fixed costs at $3500, in the event that Richmond Hill demands them.
*****
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.
In the recent case of Doobay v. Town of Richmond Hill, Cyril Doobay became the most recent plaintiff whose case fell on jurisdictional bases, suing his employer for firing him in 2003 because he was drunk on the job.
He grieved the termination, and CUPE argued that the penalty should be reduced to accommodate his disability - alcoholism. The arbitrator dismissed the grievance on August 24, 2004. The arbitrator acknowledged the alcoholism as an issue (as well as the fact that the grievor had sought treatment), but found that reinstatement was impossible without the grievor taking full responsibility for his misconduct, which he had not.
Then, more recently, on November 4, 2010, he issued a statement of claim.
There are a lot of big problems here.
Firstly, there's the problem of delay. For claims discovered before January 1, 2004, there was a six year limitations period. For claims discovered since then, we have had a 2 year limitations period. Disability issues (probably including alcoholism) can, in some circumstances, push back limitations periods...but in this case, that wouldn't really help Mr. Doobay, because if the claim was discoverable in 2003, then he had until 2009 to bring an action (which he did not), whereas if the discoverability date was pushed to 2004, that would only give him to 2006 anyways. Limitations periods are fairly difficult to get around, in most cases. The logic is that the limitations periods usually give a person *lots* of time to initiate a legal action, so if someone misses the deadline, there had better be a really good reason for it. So this wall is pretty tough to get over. If you can't do it, the action gets dismissed.
The second problem is what we call "res judicata" - the issue has been decided before, by the arbitrator. Justice Lauwers found that this issue was res judicata (which in almost all cases results in dismissal of the action), but this wall was perhaps not so high, for a couple of reasons:
- Mr. Doobay's lawyer was arguing that the arbitration process was tainted by a lack of appreciation of the nature of the disability and the availability of accommodation programs in the Town. Now, I'm not sure that this argument rightly could have succeeded, because it doesn't really address the test for res judicata, and moreover it asks the Court to evaluate the results of the arbitration process...which might not be so bad, but for a couple of problems:This was an action, not a judicial review application; and Mr. Doobay probably wouldn't have had standing to seek judicial review. (The judge notes that Mr. Doobay did not seek judicial review, which is "the customary way in which such decisions are challenged". This may gloss over the fact that it is the union, not the grievor, with standing to seek judicial review, which fact the judge does not appear to bear in mind.) So the fact that this isn't a judicial review application isn't just a wrong choice of venue; Mr. Doobay probably could not have chosen a different venue, outside of asking CUPE to do so.
- All that being said, the finding that this is res judicata is, strictly speaking, wrong. One of the essential elements of the test of res judicata is that the parties involved must be the same. The reason Mr. Doobay would not have had standing to apply for judicial review is that he was not a party to the proceeding, in the strictest sense. Not being a party, the doctrine of res judicata could not block him from seeking remedies elsewhere. Of course, other doctrines would block just about every other type of remedy conceivable based on facts that had formed the subject matter of an unsuccessful grievance arbitration.
But what becomes more interesting is the costs analysis. You see, counsel for the Town sent a detailed letter to Mr. Doobay's lawyer explaining why the action was doomed to fail, and tried to use that letter to justify seeking substantial indemnity costs - i.e. costs on an elevated scale - in the amount of nearly $15,000. There was some discussion as to whether the letter constituted an offer to settle; the judge found that it did not, as there was no real offer to compromise, and in any event the rules regarding offers to settle (Rule 49) don't really speak to outright dismissals of actions in any event, and don't entitle a successful defendant to substantial indemnity costs.
So Rule 49 really wasn't the way to go on that. But the Court retains discretion to award substantial indemnity costs in any event, so one might have thought that the judge would have appreciated the fact that the defendant had tried to avoid the necessity of a motion by pointing out to the plaintiff the incontrovertible case law that would certainly lead to the dismissal of the action. I don't know what led to the issuance of a statement of claim in the face of that doctrine, and I'm not going to speculate, but there doesn't seem to be any reason why the plaintiff should have forced the Town to incur the legal fees of bringing the motion, once it had full particulars of the Town's position.
No such luck - ultimately, the judge fixed costs at $3500, in the event that Richmond Hill demands them.
*****
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.
Tuesday, September 20, 2011
When will the HRTO refuse to defer an Application?
"The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues."
That sentence has been part of literally hundreds of decisions from the Human Rights Tribunal of Ontario. Because the Supreme Court (in the Parry Sound decision) found in 2003 that labour arbitrators have parallel jurisdiction to interpret and apply human rights legislation, it is common practice for any bargaining unit member feeling that their human rights have been violated to both grieve the issue and make an application to the HRTO. This is legitimate. However, because the HRTO doesn't want to proceed with parallel proceedings, it takes the position that, if there's a grievance moving forward, it will let the grievance go first.
There's a certain logic to this. Firstly, grievances often include matters above and beyond human rights-based allegations, which the HRTO can't deal with. So if only one proceeding needs to proceed, it will usually be the grievance. Secondly, the HRTO is well-positioned to evaluate after the completion of the grievance process whether or not there are outstanding human rights issues that need to be dealt with. Thirdly, labour arbitrators are privately paid by the parties (i.e. the union and the employer), whereas the HRTO is government-funded with limited resources, so to the extent that it can defer part of its caseload to others, it will.
To applicants, however, there are certain advantages to the HRTO. Yes, they have the union to assist them in the grievance process, but there are also free legal services available to applicants to the HRTO. Ultimately, the big difference is that the individual applicant drives an HRTO proceeding, whereas it's the union (taking into account the needs of the grievor but also the rest of the bargaining unit) driving grievance proceedings.
So for a grievor who has grown disillusioned with his or her union representation (which happens fairly frequently), it's a bit of a kick in the face that they are forced to proceed with the grievance before they can move forward with the HRTO application. And as an added bonus, if the union and the employer reach a settlement of the grievance - even over the objections of the grievor - there is a good chance that the HRTO will conclude that the subject matter of the proceeding has been "appropriately dealt with", and not proceed with the application. (See Rysinski v. Aecon Industrial.)
It is in this context that I find the recent HRTO decision in Dalrymple v. 412506 Ontario Ltd. interesting. Ms. Dalrymple worked for St. Jacques Nursing Home, and her claims are apparently as follows: On June 30th, 2009, she suffered an injury in the workplace, and provided a doctor's note substantiating her absence from work to August 10th, at which point there was a follow-up appointment scheduled. Due to a family emergency, she was unable to attend that appointment, but ended up getting back to the doctor 3 days later for a note addressing the relevant period. In the mean time, the employer immediately jumped on her temporarily-unsubstantiated absence and terminated her employment. After she began a Labour Market Re-entry program under the WSIA, the employer suddenly contacted her (no doubt finally having received better legal advice) to offer her accommodated work, which compromised her position in the Labour Market Re-entry program.
Ms. Dalrymple initiated a grievance in September 2009. There is no word as to what happened to the grievance since then, except that the union has indicated that it has now decided to refer the grievance to arbitration and the employer has agreed to waive the timeframes for referral of the grievance. The HRTO decision notes that Ms. Dalrymple "asserts that the union has not represented her very well." In June 2010, she commenced the HRTO application.
Now, with the grievance potentially moving to arbitration (as well as some related issues that may be going to WSIAT), the employer has asked to defer the HRTO Application. And those who may have thought that deferral is automatic...have been proven wrong.
*****
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.
That sentence has been part of literally hundreds of decisions from the Human Rights Tribunal of Ontario. Because the Supreme Court (in the Parry Sound decision) found in 2003 that labour arbitrators have parallel jurisdiction to interpret and apply human rights legislation, it is common practice for any bargaining unit member feeling that their human rights have been violated to both grieve the issue and make an application to the HRTO. This is legitimate. However, because the HRTO doesn't want to proceed with parallel proceedings, it takes the position that, if there's a grievance moving forward, it will let the grievance go first.
There's a certain logic to this. Firstly, grievances often include matters above and beyond human rights-based allegations, which the HRTO can't deal with. So if only one proceeding needs to proceed, it will usually be the grievance. Secondly, the HRTO is well-positioned to evaluate after the completion of the grievance process whether or not there are outstanding human rights issues that need to be dealt with. Thirdly, labour arbitrators are privately paid by the parties (i.e. the union and the employer), whereas the HRTO is government-funded with limited resources, so to the extent that it can defer part of its caseload to others, it will.
To applicants, however, there are certain advantages to the HRTO. Yes, they have the union to assist them in the grievance process, but there are also free legal services available to applicants to the HRTO. Ultimately, the big difference is that the individual applicant drives an HRTO proceeding, whereas it's the union (taking into account the needs of the grievor but also the rest of the bargaining unit) driving grievance proceedings.
So for a grievor who has grown disillusioned with his or her union representation (which happens fairly frequently), it's a bit of a kick in the face that they are forced to proceed with the grievance before they can move forward with the HRTO application. And as an added bonus, if the union and the employer reach a settlement of the grievance - even over the objections of the grievor - there is a good chance that the HRTO will conclude that the subject matter of the proceeding has been "appropriately dealt with", and not proceed with the application. (See Rysinski v. Aecon Industrial.)
It is in this context that I find the recent HRTO decision in Dalrymple v. 412506 Ontario Ltd. interesting. Ms. Dalrymple worked for St. Jacques Nursing Home, and her claims are apparently as follows: On June 30th, 2009, she suffered an injury in the workplace, and provided a doctor's note substantiating her absence from work to August 10th, at which point there was a follow-up appointment scheduled. Due to a family emergency, she was unable to attend that appointment, but ended up getting back to the doctor 3 days later for a note addressing the relevant period. In the mean time, the employer immediately jumped on her temporarily-unsubstantiated absence and terminated her employment. After she began a Labour Market Re-entry program under the WSIA, the employer suddenly contacted her (no doubt finally having received better legal advice) to offer her accommodated work, which compromised her position in the Labour Market Re-entry program.
Ms. Dalrymple initiated a grievance in September 2009. There is no word as to what happened to the grievance since then, except that the union has indicated that it has now decided to refer the grievance to arbitration and the employer has agreed to waive the timeframes for referral of the grievance. The HRTO decision notes that Ms. Dalrymple "asserts that the union has not represented her very well." In June 2010, she commenced the HRTO application.
Now, with the grievance potentially moving to arbitration (as well as some related issues that may be going to WSIAT), the employer has asked to defer the HRTO Application. And those who may have thought that deferral is automatic...have been proven wrong.
[15] I do not find it appropriate to defer this Application because of the outstanding grievance. The grievance was filed almost two years ago and the union has recently advised that it has decided to refer the grievance to arbitration. As of the date of this Interim Decision, the Tribunal has not been advised of any date set for arbitration and has not been provided with documentation showing that the grievance has in fact been referred to arbitration.
[16] The referral to arbitration is also well after the Tribunal’s process was initiated. The parties have filed substantive pleadings and a mediation has been held. At this stage of the Tribunal’s proceedings I do not find it appropriate to defer the Application because of the outstanding grievance.
*****
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.
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.
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.
Friday, July 15, 2011
Unionized Employees: Court isn't for you
This isn't new, but every so often a new case pops up - and is dealt with quite quickly - involving a unionized employee (the technical term is "bargaining unit member") trying to sue his employer.
Under most circumstances, that's impossible. Collective agreements must provide for a grievance process, and for grievance arbitration. So if somebody who is a member of a bargaining unit gets terminated, then he has to go to his union rep to file a grievance; you can't go retain a lawyer to try to sidestep the union and sue the employer directly.
The underlying principle is that, once a group of employees forms a bargaining unit, that group of employees no longer has a direct relationship with the employer. Rather, they have a relationship with the union; the union has the relationship with the employer.
Nor can such an employee sue his union if he isn't happy with the job it has done representing his interests, generally speaking. Under the Labour Relations Act, the Ontario Labour Relations Board has exclusive jurisdiction over most such issues. There is a select number of issues that an employee can raise directly with his employer at the OLRB, but most issues must go through the grievance process, and an employee displeased with the Union must bring a "DFR" (Duty of Fair Representation) application against the Union. The trouble with DFRs is that the Union has a very wide latitude in deciding how best to represent the interests of the bargaining unit on the whole. If it decides that the bargaining unit can best be served on the whole by refusing to advance your overtime grievance in order to not taint the next round of bargaining, then you're pretty much stuck unless you can establish that the Union's actions were "arbitrary, discriminatory, or in bad faith". The exception is with discharge grievances: A Union generally can't refuse to grieve a discharge grievance, because the consequence of that refusal is that the employee is no longer part of the bargaining unit and - following the above example - won't have any of the benefits that may be obtained in the next round of bargaining.
In law, however, every rule has its exceptions. The OLRB's jurisdiction specifically excludes certain types of employee associations, such as fire associations. I have had occasion to opine that a Court proceeding might be instituted by a firefighter against the fire association, under the right circumstances, in a similar fashion to a DFR application. As far as I can tell, however, that hasn't happened. It's peripheral, in any event.
Moving along, consider the recent Paonessa v. Lifemark Health Management Inc. case. Health management companies are essentially external human resources departments working with disabled employees to assist in assessing them and facilitating an accelerated return to work. (Essentially, they track disabled employees, determine the length of treatment, limitations, and accommodations which might be made to phase them back into the workplace asap.)
The Facts
The employee was off work, receiving disability benefits, for three and a half years. At that point, the employer retained Lifemark to conduct a Functional Abilities Evaluation (FAE). The assessor concluded that the employee was not capable of returning to work, and the employer proceeded to discharge the employee.
The employee grieved the discharge, settled it on terms involving a return to work, then was discharged again following an alleged failure on her part to comply with the terms of the settlement. She grieved the second discharge, and settled again with the employer.
Then she proceeded to sue Lifemark, alleging interference with economic relations. Lifemark turned around and claimed for indemnification against the employer.
The Issues
The biggest and most obvious problem with suing Lifemark is this: Any settlement she would have agreed to with the employer would almost certainly have included the execution of a "Full and Final Release" including a clause preventing the employee from initiating proceedings against the employer or any other person who might seek indemnification from the employer.
When I explain these clauses to my clients, I put it this way: Suppose I hire a general contractor to renovate my home, and he subcontracts to an electrician, who performs his work in a negligent manner, causing me damages. Now suppose I sue the electrician for his negligence, and reach a settlement with him.
After settling with the electrician, imagine that I proceed to sue the general contractor in breach of contract, because he didn't provide the renovations I bought in a good and workmanlike manner. What is he going to do? Well, he'll issue a Third Party Claim against the electrician, saying "It's his fault, so he should have to pay me back for anything I'm required to pay." The electrician, already having settled this matter directly with me, won't be pleased with this turn of events...and would point to the release and say, "Sorry, the statement of claim has to be struck because the plaintiff already has his settlement for anything for which I might be responsible." Ultimately, in this case, the judge similarly finds that the plaintiff had her remedy through the grievance process, so the litigation is an abuse of process.
The other issue in whether or not the action is barred because of the fact that she's a bargaining unit employee. The judge's answer is that the subject matter of this law suit (namely, the conduct of the FAE) is squarely the subject matter of the collective agreement, and therefore the action is barred by the Labour Relations Act.
Thoughts
I don't doubt the correctness of this decision, I think the justice of it is in the right place, and I'm impressed by the judge's clarity in explaining his reasoning...but I'm still left with some nagging concerns: In any other circumstance, there would be the potential for a freestanding action against the organization that administered the FAE, and in the occasional circumstance there might be good reason to sue that organization in addition to the employer. That's not possible for bargaining unit members. So what happens if the organization carrying out the FAE does something beyond what the employer could reasonably be held responsible for in the grievance process?
I think the answer to that question is likely that such a scenario can't be permitted to occur. It cements the agency relationship. If an action against the assessor is statute-barred, then this must have the result that everything the assessor does in carrying out the FAE must be considered actions of the employer, for which the employer may be liable. (Of course, there's nothing stopping the employer from suing the assessor, in the right case.)
*****
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.
Under most circumstances, that's impossible. Collective agreements must provide for a grievance process, and for grievance arbitration. So if somebody who is a member of a bargaining unit gets terminated, then he has to go to his union rep to file a grievance; you can't go retain a lawyer to try to sidestep the union and sue the employer directly.
The underlying principle is that, once a group of employees forms a bargaining unit, that group of employees no longer has a direct relationship with the employer. Rather, they have a relationship with the union; the union has the relationship with the employer.
Nor can such an employee sue his union if he isn't happy with the job it has done representing his interests, generally speaking. Under the Labour Relations Act, the Ontario Labour Relations Board has exclusive jurisdiction over most such issues. There is a select number of issues that an employee can raise directly with his employer at the OLRB, but most issues must go through the grievance process, and an employee displeased with the Union must bring a "DFR" (Duty of Fair Representation) application against the Union. The trouble with DFRs is that the Union has a very wide latitude in deciding how best to represent the interests of the bargaining unit on the whole. If it decides that the bargaining unit can best be served on the whole by refusing to advance your overtime grievance in order to not taint the next round of bargaining, then you're pretty much stuck unless you can establish that the Union's actions were "arbitrary, discriminatory, or in bad faith". The exception is with discharge grievances: A Union generally can't refuse to grieve a discharge grievance, because the consequence of that refusal is that the employee is no longer part of the bargaining unit and - following the above example - won't have any of the benefits that may be obtained in the next round of bargaining.
In law, however, every rule has its exceptions. The OLRB's jurisdiction specifically excludes certain types of employee associations, such as fire associations. I have had occasion to opine that a Court proceeding might be instituted by a firefighter against the fire association, under the right circumstances, in a similar fashion to a DFR application. As far as I can tell, however, that hasn't happened. It's peripheral, in any event.
Moving along, consider the recent Paonessa v. Lifemark Health Management Inc. case. Health management companies are essentially external human resources departments working with disabled employees to assist in assessing them and facilitating an accelerated return to work. (Essentially, they track disabled employees, determine the length of treatment, limitations, and accommodations which might be made to phase them back into the workplace asap.)
The Facts
The employee was off work, receiving disability benefits, for three and a half years. At that point, the employer retained Lifemark to conduct a Functional Abilities Evaluation (FAE). The assessor concluded that the employee was not capable of returning to work, and the employer proceeded to discharge the employee.
The employee grieved the discharge, settled it on terms involving a return to work, then was discharged again following an alleged failure on her part to comply with the terms of the settlement. She grieved the second discharge, and settled again with the employer.
Then she proceeded to sue Lifemark, alleging interference with economic relations. Lifemark turned around and claimed for indemnification against the employer.
The Issues
The biggest and most obvious problem with suing Lifemark is this: Any settlement she would have agreed to with the employer would almost certainly have included the execution of a "Full and Final Release" including a clause preventing the employee from initiating proceedings against the employer or any other person who might seek indemnification from the employer.
When I explain these clauses to my clients, I put it this way: Suppose I hire a general contractor to renovate my home, and he subcontracts to an electrician, who performs his work in a negligent manner, causing me damages. Now suppose I sue the electrician for his negligence, and reach a settlement with him.
After settling with the electrician, imagine that I proceed to sue the general contractor in breach of contract, because he didn't provide the renovations I bought in a good and workmanlike manner. What is he going to do? Well, he'll issue a Third Party Claim against the electrician, saying "It's his fault, so he should have to pay me back for anything I'm required to pay." The electrician, already having settled this matter directly with me, won't be pleased with this turn of events...and would point to the release and say, "Sorry, the statement of claim has to be struck because the plaintiff already has his settlement for anything for which I might be responsible." Ultimately, in this case, the judge similarly finds that the plaintiff had her remedy through the grievance process, so the litigation is an abuse of process.
The other issue in whether or not the action is barred because of the fact that she's a bargaining unit employee. The judge's answer is that the subject matter of this law suit (namely, the conduct of the FAE) is squarely the subject matter of the collective agreement, and therefore the action is barred by the Labour Relations Act.
Thoughts
I don't doubt the correctness of this decision, I think the justice of it is in the right place, and I'm impressed by the judge's clarity in explaining his reasoning...but I'm still left with some nagging concerns: In any other circumstance, there would be the potential for a freestanding action against the organization that administered the FAE, and in the occasional circumstance there might be good reason to sue that organization in addition to the employer. That's not possible for bargaining unit members. So what happens if the organization carrying out the FAE does something beyond what the employer could reasonably be held responsible for in the grievance process?
I think the answer to that question is likely that such a scenario can't be permitted to occur. It cements the agency relationship. If an action against the assessor is statute-barred, then this must have the result that everything the assessor does in carrying out the FAE must be considered actions of the employer, for which the employer may be liable. (Of course, there's nothing stopping the employer from suing the assessor, in the right case.)
*****
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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