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Human Rights Complaints in a Unionized Environment

Marla Calvert
January 19, 2022

In BC, the Human Rights Code protects employees from discrimination and/or harassment on the basis of personal characteristics including race, disability, place of origin, colour, citizenship, creed, sex, gender expression, gender identity, age, marital status and a number of other prohibited grounds.  Unions and employers have a joint duty to create workplaces that are free of discrimination and harassment.

Responsibilities of the Union In Terms of Human Rights Issues

Given the union is the exclusive representative of its members, employers must work with the union in all employer-employee relations.  A member who has a human rights issue has a right to union representation.  When a member brings a complaint to the union, the union will determine whether there is a potential human rights issue involved.  The union assists members with human rights issues in a variety of ways including but not limited to:

·         guiding a member who has a human rights issue through the employer’s internal complaint resolution process;

·         informally assisting members to resolve a complaint;

·         advocating with the employer on behalf of the member;

·         helping a member file a grievance based on a human rights issue; and

·         making a policy grievance against the employer on behalf of the union’s members.

Jurisdiction over Unionized Workers’ Human Rights Complaints

The Supreme Court of Canada has held that arbitrators have both the jurisdiction and the obligation to apply human rights legislation ( Parry Sound (District) Welfare Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII)).  The Supreme Court has also held that arbitrators have exclusive jurisdiction to arbitrate disputes between employers and unions where the essential nature of the dispute arises either explicitly or implicitly from the collective agreement (Weber v. Ontario Hydro, 1995 SCC 108 (CanLII)).

Most recently in the case of Northern Regional Health Authority v Horrocks, 2021 SCC 42 (CanLII) the Supreme Court of Canada ruled that labour arbitrators have exclusive jurisdiction over unionized workers’ complaints of human rights violations in the workplace subject to express legislative intent to the contrary.  The Court stated that resolving jurisdictional contests between labour arbitrators and competing statutory tribunals entails a two-step analysis:

 

  1. First, the relevant legislation must be examined to determine whether it grants a labour arbitrator exclusive jurisdiction and if so, over what matters. Where the legislation includes a mandatory dispute resolution clause, an arbitrator empowered under that clause has exclusive jurisdiction to decide all disputes arising from the collective agreement.

     

  2. Second, if the arbitrator has exclusive jurisdiction over certain matters, the next step is to determine whether the dispute in question falls within the scope of that jurisdiction. This scope will depend on the language of the statute, but in general will extend to all disputes that arise from the interpretation, application or alleged violation of the collective agreement.

     

The Court noted that certain statutory schemes across Canada may disclose a legislative intention that human rights tribunals do have concurrent jurisdiction over complaints arising under a collective agreement.  For instance, the Court mentioned that both the Federal and British Columbia human rights statutes (see section 25 of the BC Human Rights Code) empower decision-makers to defer consideration of complaints that are capable of being dealt with through a grievance process, which the Court noted, necessarily implies that these decision-makers have concurrent jurisdiction over disputes that are subject to the grievance process.

Despite the concurrent jurisdiction over human rights complaints in BC, if both a human rights grievance and a human rights complaint is filed, the human rights complaint is likely to be placed in abeyance until the grievance process/complaint is resolved to avoid multiplicity of proceedings.

If you have questions about human rights complaints arising in unionized workplaces, contact us to discuss!