Can unionized workers sue their employer?
This article was originally published by The Hamilton Spectator.
Q: I’m in a union – can I still sue my employer?
A: Unionized employees are largely shut out of the courts and must seek recourse for workplace wrongs through their union, which is the gatekeeper of the grievance process. Courts and arbitrators have ruled the grievance process is the only place to go, even for things like incidents of defamation and workplace sexual harassment and assault.
If your union files a grievance for you, an arbitrator may adjudicate these types of claims and can award damages. But what happens if your union isn’t supportive and won’t file a grievance?
You can complain to the Ontario Labour Relations Board (“OLRB”) that the union hasn’t fulfilled the duty of fair representation. However, these claims rarely succeed. The harsh reality is the union isn’t obligated to do what you want with the grievance, and they can settle it without your agreement.
You can also make your complaint to the OLRB if the employer has punished you for exercising your rights under the Occupational Health and Safety Act. One example is a situation where you make a workplace harassment complaint and then are fired after a short time.
Another option is the Human Rights Tribunal of Ontario, which recently confirmed it has the power to hear unionized employees’ own claims for breach of the Ontario Human Rights Code.
It can be difficult to decide where to bring your claim, and you typically cannot make a claim in multiple places at once. It is best to consult with a lawyer before filing any claims.
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