Tuesday, August 3, 2010

Can your Union give away your Human Rights?

When a Union is certified as your collective bargaining agent, that displaces the common law freedom of contract. You can no longer deal with your employer on a one-on-one basis. You can't sue your employer in Court. Rather, the Union and the Employer will (and must) put together a collective agreement with an arbitration clause. Disputes prior to that stage, or other limited types of disputes, end up going to the Ontario Labour Relations Board. Only the Union or the Employer can refer disputes to arbitration; individual employees cannot.

The Union owes a duty of fair representation to the bargaining unit members, but they're given a lot of latitude in deciding how best to fulfill that duty. So if I complain to my union rep about being passed over for overtime, and the union brass figure that it's better for the whole bargaining unit (including me) not to stir up conflict with the employer over it, then there isn't likely much that I can do about that. (The one exception is with discharge grievances: If I've been fired, it doesn't do me any good whatsoever that the union wants to maintain positive relations with the employer, so the union can't refuse to advance my grievance.)

What if I'm suffering discrimination at the hands of my employer on the basis of, say, race? And my union rep says that stirring up racial tensions in the work place isn't worth the trouble, so they won't help me with my grievance...then what?

Well, the Human Rights Tribunal is one of the few places where you can go directly against your employer, bypassing the Union entirely. In times long past, there has been litigation about whether or not the collective agreement can contract out of human rights legislation...and the answer is not only that you can't contract out of human rights legislation, but that ensuring human rights compliance is the responsbility of both the Union and the Employer. So if a person needs an accommodated schedule for reasons of disability, then the fact that somebody of higher seniority may be put out by it won't ground a grievance. You can't absolve yourself of the duty to accommodate on the basis that the specific accommodation would breach the collective agreement.

It goes a step further, or at least it did: Let's say you grieve your discharge, and enter into a monetary settlement. Then you make a complaint that your employer discriminated against you in firing you, and try to get a human rights process going. The fact of the settlement won't necessarily block the proceeding. This is one of the reasons that the traditional full and final release has language expressly stating that any human rights claims are satisfied. You can't enter into a contract not to stand on your human rights, and if a release doesn't clearly set out that your human rights are satisfied, then adjudicators were prepared to say that it wouldn't block the human rights proceeding.

This is a very special place that Human Rights had in the law. Or at least, it was. Recent jurisprudence from the Human Rights Tribunal of Ontario suggests that this is changing. In particular, they're finding that grievance settlements can bar subsequent human rights proceedings even if the grievor didn't authorize or sign the settlement.

In Park v. Waterloo, it's a bit of a less clear case: The employee had a grievance and a complaint with the Commission going forward at the same time in 2008, but the Commission complaint was never acted on, and the employer never became aware of it. The union settled the grievance, money was paid to Ms. Park, and then in June 2009 she tried to continue to advance the human rights proceeding. This was the first time the employer became aware that she wasn't happy with the settlement.

So maybe Ms. Park isn't all that sympathetic.

But I'm deeply concerned about Rysinski v. Aecon Industrial:

Rysinski is physically disabled, and was fired by Aecon when it decided that they couldn't accommodate his disability anymore. Rysinski grieved the termination through his union, IBEW.

IBEW settled the grievance on Rysinski's behalf, and was entitled to do so under the terms of the collective agreement. The settlement was for the sum of $10,000. Rysinski didn't approve the settlement or sign a release. He did cash the cheque, but characterized it as "partial damages". He believed that he was entitled to something more in the ballpark of $65,000. (The 'partial damages' argument is somewhat coherent, actually: I'd more expressly do it under protest, but if I'm taking the position that you owe me $2, and you give me $1, what is the more reasonable thing for me to do? Pocket the loonie and ask for another one? Or throw it back at you and demand a toonie? Some doctrines would lead to the notion that refusing a partial payment waives the same. If I had a client bring in a cheque, I'd send a letter acknowledging receipt of the money, saying "This money will be deposited into my firm's trust account pending resolution of the outstanding issues", and expressly stating that the deposit of the cheque was without prejudice to my client's right to further pursue said issues.)

Rysinski then applied to the OLRB, accusing IBEW of failing in its duty of fair representation. However, the test requires some evidence that the Union acted in a manner which was "arbitrary, discriminatory, or in bad faith", and, when the only thing to go on was Rysinski's belief that he was short-changed, the OLRB found that he hadn't made a prima facie case.

Which brings us to the above-noted HRTO decision. Rysinski's next step was to bring an Application against the employer at the HRTO. So the question becomes whether or not the existing settlement gets in the way.

In the old days, the question would have been whether or not Rysinski understood and voluntarily accepted that the settlement was in satisfaction of any human rights-based claims. On these facts, the answer would have been a clear-cut "No"; the settlement wouldn't have bound him - not only did he not agree to it voluntarily; he never agreed to it at all!

But the HRTO went the other way on this. It found that the grievance procedure had appropriately dealt with the substance matter of the Application, through the settlement entered into by the Union on the grievor's behalf.

(There was also an Application against the Union for discrimination...this was more clearly estopped, given that he had already argued that unsuccessfully before the OLRB. The OLRB decided that there had been nothing discriminatory about the Union's actions, so the HRTO wasn't going to revisit the question. Neither here nor there.)

This is worrying to me. Recourse for breach of human rights was always an exception to the Union's exclusive right of representation. They couldn't contract out of the process (or the substantive rights), and they couldn't prevent a bargaining unit member from going to the HRTO. But now they can block a HRTO Application, and, so long as their actions aren't obviously capricious or in bad faith, the employee may find himself without any recourse as against either the Employer or the Union.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

No comments:

Post a Comment