There are substantial limitations on unionized employees’ abilities to seek recourse for their employer’s misconduct outside of arbitration and the procedures set out in their collective agreements. However, unionized employees often have another option when the issue is related to human rights, as they are allowed to file complaints about workplace discrimination with the Human Rights Tribunal of Ontario (the “Tribunal”). This post will briefly outline when this option is available to unionized employees, and some of the factors that may be relevant to deciding on which route to pursue when seeking a remedy for workplace discrimination.
The Human Rights Code Applies to Unionized Employees
The Tribunal is responsible for resolving claims of discrimination and harassment brought under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. This protects people from discrimination and harassment based on the grounds enumerated in the Code in five areas, including employment.
In Weber v. Ontario Hydro,  2 SCR 929, the Supreme Court of Canada adopted the “exclusive arbitral jurisdiction model” for workplace complaints from unionized employees, meaning that courts have no power to hear complaints that arise out of a claim that is covered by collective agreement. This was later extended to apply to all workplace complaints by unionized employees, regardless of the existence of a collective agreement.
However, the Human Rights Tribunal is not a court. Instead, it is an administrative tribunal tasked with hearing complaints under the Code. As such, it is not prohibited from hearing complaints by unionized employees so long as they are made under the Code.
In Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), the Supreme Court of Canada held that employees’ rights under human rights legislation, as well as under other employment-related statutes, are incorporated into all collective agreements. This means that any workplace complaints about discrimination and harassment under the Code can also be resolved through grievance procedures, even where the relevant collective agreement does not contain express anti-discrimination provisions.
Therefore, the Code applies to unionized employees, and workplace issues arising under the Code can be resolved either through grievance procedures in collective agreements or through an application to the Tribunal.
Availability of the Tribunal for Hearing Discrimination Complaints
Although unionized employees do have a choice between addressing workplace discrimination through grievance procedures or the Tribunal, there are limitations to this choice. A unionized employee may file an application with the Tribunal claiming workplace discrimination under the Code so long as he or she has not already filed a grievance to address the same issues. That is, it has to be one or the other, but not both.
In the event that the unionized employee has already begun a grievance procedure relating to the same issues raised in his or her application to the Tribunal, but that grievance procedure has not been completed, the Tribunal will likely defer the application until the grievance is resolved, pursuant to section 45 of the Code and Rule 14 of its Rules of Procedure. Where the grievance procedure on the matter has already been completed, the Tribunal will likely dismiss the application pursuant to section 45.1 of the Code.
Section 45.1 of the Code states that “The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.” The purpose of this section is to prevent people from litigating the same issues twice.
However, it is not always obvious whether the substance of an application has already been dealt with through a grievance procedure. For instance, an application and a grievance may be based on the same set of facts but address distinct issues. In such cases, the Tribunal will allow the application to be heard.
Conclusions and Considerations
As expressed by the Tribunal in Bernard v. Lakehead University, 2011 HRTO 1408, in circumstances where the substantive issues in a matter have not already been addressed, whether to proceed by way of a grievance or through the Tribunal is truly a choice. The availability of adequate grievance procedures to a unionized employee will not prevent the Tribunal from hearing an application so long as no grievance has actually been filed.
Unionized employees need to be careful when deciding whether to address issues of workplace discrimination or harassment by way of their collective agreement’s grievance procedures or by bringing an application before the Tribunal. This is because they likely will not be able to change their minds once they have started down one of the two paths. Considerations such as the remedies available under the different processes, the specific grievance procedures outlined in a collective agreement, and past interactions with your union can all play a role.