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Clinging to past knowledge can be costly

Readers who employ and/or manage unionized workers will want to pay careful attention to the information contained in this article.

Can a union member file a claim directly with the Human Rights Tribunal of Ontario (HRTO)?

Twice in the last month while conducting training sessions, I have had a workshop participant insist that their workers could NOT file a claim directly with the HRTO because the workers are members of a union. The workers must, they have insisted, file a grievance and settle their human rights claim via the labour relations process.  A review of the law reveals the above is simply NOT the case.

Section 45.1 of the Human Rights Code permits the HRTO to dismiss a case where “the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.”

So, imagine your worker (let’s call him Bob) files a grievance claiming to be the victim of racial discrimination while employed by your company. The grievance proceeds to arbitration and the case is dismissed because Bob was unable to support his allegations. Bob is not happy with this result so he files an application with the HRTO.

Will the HRTO automatically dismiss his application because “another proceeding has appropriately dealt with the substance of the application”?

No, not automatically. Your company (or some other party) will first have to ask the HRTO to dismiss the application and then successfully argue that the union grievance process has “appropriately dealt with the substance of the application.” The HRTO must be “of the [same] opinion” as your company before it dismisses Bob’s application.

In the case of Barker v. SEIU, a unionized worker was terminated after being absent from work due to illness. She filed a grievance and lost. She then filed a complaint with the HRTO and the employer asked to have it dismissed on the basis of the previous unsuccessful arbitration award.

The HRTO found that the arbitrator did not in fact deal “appropriately” with the human rights issues of the worker’s case and, therefore, agreed to hear the complaint. The HRTO has yet to publish a decision on the merits of this application.

On the other hand, a worker will not be allowed to use the HRTO to re-litigate issues simply because that worker is unhappy with the result of the grievance process. This principle is illustrated in the case of Rysinski v. Aecon Industrial. In this case, the HRTO decided that the grievance process had “appropriately” dealt with the human rights issues of the worker’s complaint and dismissed the worker’s application for a hearing before the HRTO.

A likely source of confusion on this topic is the fact that there was a significant change in the law back in 2006.  Under the old law, the Human Rights Code allowed the Human Rights Commission to dismiss a complaint that “could be heard under another Act.” The current law contains very different wording: “…has appropriately dealt with…” Furthermore, complaints today are filed directly with the HRTO and not vetted through the commission as was the case in previous years.

Learn—don’t Litigate. Make sure your knowledge of employment law is up-to-date. Training. Training. Training.

Andrew Lawson
www.learndl.ca

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Andrew Lawson

Trainer and advisor at Learn Don't Litigate
Andrew Lawson is a human rights and health and safety trainer and advisor, currently consulting to both the federal and Ontario governments. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law. He has worked in the people management business for over 25 years. Read more
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