Many unionized employees reach out to our office intent on suing their employer. Due to their unionized status, these employees have limited legal options and find themselves in a unique legal predicament, since they cannot sue their employer in court. Supreme Court decisions have held that individuals whose employment relationships are governed by a collective bargaining agreement are precluded from resolving their disputes through the courts.
The Supreme Court’s landmark decision in Weber v. Ontario Hydro, confirmed that arbitration clauses such as those contained in Ontario’s Labour Relations Act, 1995 give labour tribunals such as the Ontario Labour Relations Board (“the Board”) exclusive jurisdiction to handle all disputes arising from unionized relationships.
The Court further articulated that the question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. If it does, then it is strictly within the Board’s jurisdiction. This power even extends to Charter remedies, provided that the applicable provincial legislation empowers the arbitrator to hear the dispute and grant the remedies claimed.
This means that where an employment-related dispute arises, such as wrongful dismissal, unionized employees must file a grievance with their union, and escalate the dispute to arbitration if the grievance process bears no fruit and the union is willing to proceed to arbitration.
What legal options do unionized employees have?
As the foregoing demonstrates, an employee’s primary legal advocate is their union. Yet, for various reasons, many employees lose confidence in their union’s ability to advocate on their behalf. A union may be reluctant to seek arbitration if it believes that the employee has a weak case. Another possibility boils down to sheer internal politics. Unions must engage in a delicate dance when dealing with various stakeholders, including management, the employer and the Board.
Where a unionized employee believes that they have not been represented fairly by their union, they can file a “Duty of Fair Representation” complaint with the Board. The “duty of fair representation” means that a trade union cannot act in a manner that is arbitrary, discriminatory, or in bad faith in representing employees. This mandate is codified in section 74 of the Labour Relations Act, which reads:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The most common type of behaviour that is challenged is “arbitrary” behaviour, which has been interpreted in a number of cases by the Board. A union acts arbitrarily when handling a grievance if its conduct is superficial, capricious, indifferent, or in reckless disregard of an employee’s interests. Where a union’s conduct is found to be arbitrary, discriminatory or in bad faith, the Board has the power to overturn the union’s decision and force it to take the employee’s grievance to arbitration.
Section 50(1) Reprisal Application
A second possible legal avenue unionized employees can pursue is a “reprisal” application, pursuant to section 50(1) of the Occupational Health and Safety Act (the “OHSA”).
Where an employee is fired for complaining about unsafe work conditions, or bullying and/or harassment, the Board can act to reinstate the employee and award backpay from the time of the employee’s termination, until the time of the hearing of their case. Such applications create a “reverse onus” which places the onus on the employer to prove that the employee’s termination was not made in retaliation for invoking their rights under the OHSA.
Weber v. Ontario Hydro,1995 CanLII 108 (SCC),  2 S.C.R. 929