As we learn in Employment Law courses, work law is complicated by overlapping legal regimes. For example, a single decision by an employer to dismiss an employee can give rise to legal proceedings under the common law (such as a tort action), grievance arbitration if the employee is unionized, as well as any 
number of employment-related statutes. Sometimes, an employee is precluded from pursuing one legal route if they have initiated a proceeding in another legal venue. In other instances, there is nothing preventing an employee from pursuing multiple proceedings at once.
Discrimination issues can give rise to overlapping regime issues. In a unionized workplace, the most common route for employees to seek redress for perceived wrongs is grievance arbitration under the collective agreement’s grievance and arbitration provisions. Many collective include prohibitions on discrimination, so an employee who believes she has been discriminated against by her employer can file a grievance. The employee can also file a human rights complaint alleging a violation of Section 5 of the Human Rights Code.
What happens when there is both a grievance and a human rights complaint challenging the same employer actions?
In the simplest scenario, the union brings the grievance to arbitration, argues the human rights issue, and the arbitrator decides whether there was discrimination. In that case, the Human Rights Code provides an answer. It’s found in Section 45.1:
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.
If the arbitrator deals head-on with the subject of the human rights complaint, then the Human Rights Tribunal will probably dismiss the human rights complaint pursuant to its s. 45.1 power. Although sometimes it is not clear whether another legal proceeding has in fact dealt with the human rights issues, and I’ve noted before some odd rulings in this regard.
Things are more complicated when the grievance doesn’t make it to arbitration because either: (1) the union withdraws the grievance because it thinks it has no merit; or (2) the union settles the grievance before it makes it before an arbitrator.
These two issues arise because, under most collective agreements, the union has ‘carriage’ of a grievance. That means that the union ‘owns’ the grievance, not the employee (grievor). Therefore, the union is within its legal rights to drop or settle a grievance, even if the employee (grievor) would like to proceed to arbitration. Unions act as gatekeepers to the very expensive arbitration process, weeding out grievances that lack merit or can be settled on reasonable terms.
The Tribunal has said that a settlement of a grievance is a “proceeding” under s. 45.1. (See Dunn v. S.S.M.) But when does a settlement “appropriately deal” with a human rights dispute?
Let’s review the various scenarios.
If the union settles a grievance, the settlement resolves the human rights issue, AND the employee signed the settlement, then the Human Rights Tribunal will probably find that the human rights issue has been “appropriately dealt with”, and dismiss the complaint. That’s easy.
If the union drops the grievance, because it thinks it has no merit, then the complaint has NOT be appropriately dealt with in another forum. It never reached an adjudicator, and it wasn’t resolved in a settlement. That’s what happend in a recent decision of the Human Rights Tribunal called Davila v. McKesson Canada The employer tried to argue that the withdrawal of a discrimination grievance by the union should cause the Tribunal to dismiss the employee’s human rights complaint. The Tribunal rejected this argument:
There is no dispute that the applicant’s union withdrew her two grievances based on its opinion that the grievances were unlikely to be successful at arbitration. It is also not disputed that the grievances were withdrawn on a “without prejudice or precedent basis”. Consequently, there was no formal resolution of the grievances by way of a full and final settlement or arbitration decision. As such, I find that no “proceedings” have been completed which have dealt with the substance of the Application.
In Davila, the withdwawal of the grievance was made ‘without prejudice’. Do you think that this matters? What if the union just simply withdraws the grievance? Do you think that would “appropriately deal with” the human rights issues?
If the union settles the grievance over the employee’s objections and without their consent, which a union can do if it has carriage of the grievance, then the issue is more muddy. In some cases, the Tribunal has ruled that in such a case, the matter has not been ‘dealt with’, and allowed the human rights complaint to proceed. For example, see Lumley v. Trillium Lakehead, where the Tribunal said this:
To find a settlement has appropriately dealt with the substance of a human rights application, the applicant must be a party to that agreement. To put it simply, the applicant must receive some benefit from the agreement. How else can it be said that the applicant’s application has been dealt with under the terms of the settlement? To hold otherwise would allow employers and unions to potentially bar human rights complaints on the basis of a settlement between them.
See also Lemiuex v. Guelph Hospital, where a settlement of a grievance granting the employee monetary compensation did not bar the human rights complaint, because the employee had objected to the settlement.
In other cases, the Tribunal has dismissed the human rights complaint, finding that the settlement between the union and the employer ‘dealt with’ the human rights issues, even though the employee did not agree to the settlement. If the employee receives a benefit from the settlement, and accepts the benefit, then it is more likely that the Tribunal will find that the employee implicitly agreed to the settlement. So, in Rysinski v. Aecon Industries, the union settled a grievance without the employee’s consent on terms that gave the employee monetary damages, which the employee accepted. The Tribunal ruled that the settlement dealt with the human rights issues. A similar result followed in Bhandari v. Ontario (employee derived a ‘significant benefit’ from the grievance settlement, even though he did not consent to the settlement).
Finally, what happens if an arbitrator and the Human Rights Tribunal come to different conclusions about whether an employer has violated the law by dismissing an employee? That possibility arises because an arbitrator could uphold a discharge of an employee without adequately dealing with the human rights components of the case. If that happens, it is theoretically possible that an arbitrator could find that a dismissal does not breach of the collective agreement, while the Human Rights Tribunal rules that the discharge violated the Human Rights Code. That scenario arose in a case called Barker v. SEIU, which I described a while back.
Clear as mud?
Questions for Discussion
Do you think that an employee should be denied the right to go forward with a human rights complaint against her employer if her union has settled or withdrawn her grievance alleging a human rights violation?
Are you concerned about a union being able to deny a worker the ability to proceed with a human rights complaint?