What if an Arbitrator and the Human Rights Tribunal Disagree About Whether an Employer Legally Dismissed an Employee?

Imagine you’ve been dismissed and you believe the reason is a violation of human rights legislation.  For example, you believe the employer fired you because of your disability.
In Ontario, a unionized employee who believes she has been discriminated against has a choice to bring a human rights complaint against her employer or file a grievance under the collective agreement.  If it isn’t settled, the grievance may end up before a labour arbitrator, who is given power in the Labour Relations Act to apply and interpret human rights legislation.  But what if the arbitrator dismissed the grievance?  Can the employee then turn around and try a human rights complaint, hoping for a different result?  The answer is, maybe.
The Human Rights Code, in Section 45.1 allows the Human Rights Tribunal to dismiss a complaint under the following circumstances:

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 idea here is to prevent duplicate cases.  Employers should not have to defend the same action in multiple forums.  The question for the Tribunal when a case comes before it that has already been the subject of an arbitration award is whether the human rights issue has “appropriately been dealt with” by the arbitrator.
Usually, the Tribunal has dismissed complaints that raise issues already considered by arbitrators.  However, in a case working its way through the system, the Tribunal ruled that an arbitrator who found an employer had just cause to dismiss an employee for absenteeism did not “adequately deal with”  the human rights aspects of the dismissal.  In Barker v. SEIU, the Tribunal ruled that it is not enough for the Tribunal to simply accept that an arbitrator has dealt with the human rights aspects of the dispute, instead, the Tribunal must be satisfied that the arbitrator “adequately” dealt with the human rights issues:

it is not sufficient that the human rights claims have been addressed or considered by a decision maker with the requisite authority.  The inclusion of “appropriately” in the statutory language signals a mandate to probe the relevant aspects of the other proceeding.  In my opinion, this amounts to more than a guarantee of basic procedural fairness.  As both the B.C. Tribunal and this Tribunal have stated in the passage cited above, in addition to fairness, “appropriately” also implies that the other proceeding applied “proper principles” and gave “due consideration” to the facts and relevant law.  These functions necessitate, at times, a deeper enquiry into the reasons of the other decision maker.

The arbitrator found that the employee had failed to provide the employer with proper medical information establishing her need for an extended absence or a date for a return to work.  Thus, applying the Hydro-Quebec test, he found that the evidence indicated that the employee would not be capable of returning to work in the foreseeable future, and therefore that the employer had just cause to dismiss the employee.  The Human Rights Tribunal was concerned that the arbitrator’s decision did not explicitly explore whether the employer could have accommodated the employee, as required by human rights legislation:

On the face of the written reasons contained in the Awards, there is no indication that the arbitrator heard any evidence about the employer’s ability to accommodate the applicant’s continued absence.  Absent express language, I cannot infer that the arbitrator decided that continuing the applicant’s employment could not be done without imposing undue hardship on the respondent.  While a failure to meet a job requirement may constitute a breach of a collective agreement and constitute just cause for termination, it is not implied in that analysis that the requirement itself is determined to be non-discriminatory.

So, what are we left with here?  Well, the human rights tribunal decision will continue to a hearing, unless settled.  The Tribunal could find that the Human Rights Code was violated, since the employer had not established that it could not accommodate the employee without suffering undue hardship.   You would then have one tribunal (arbitrator) finding the dismissal was lawful, and one (human rights tribunal) finding the dismissal was unlawful.  Odd.   Perhaps the arbitration award would become relevant to the Tribunal’s remedy.  On the other hand, since a collective agreement cannot contract out of the Human Rights Code, one would think that the Tribunal’s ruling trumps the arbitrator’s.
Do you think that unionized employees should be prohibited from brining human rights complaints against their employers, and instead be required to proceed through arbitration?  We already require this under the Employment Standards Act (see s. 99) , for example.
Can you think of any reason why the government might be concerned about closing the door to a human rights complaint by a unionized employee?  [HINT:  Think about who controls whether a grievance proceeds to arbitration or not]