Written on behalf of Peter McSherry
Employees form unions to bargain collectively for various financial benefits and other rights. One right given to unionized workers is the right to protest or “grieve” employment conflicts that may arise in the workplace.
The overall terms of employment are found in a contract called a “collective agreement”. One right which is given up by the employees when a union comes into existence is the right to sue the employer in court for any workplace issue. Under a collective agreement, most workplace disputes will go through a different legal process known as arbitration. The arbitrator is given considerable power. In a termination case, they can choose to reinstate the terminated worker and order back pay, either in full or in part, as they deem appropriate.
It is very difficult to appeal or review the decision of the arbitrator as it is intended that this will be a final decision.
Once a union comes into existence, the two “parties” or sides to the employment relationship are the union and the employer. The individual employee is technically not a party. The union becomes the official spokesperson of the employee. The union makes all decisions, including whether or not to start a grievance or to take a grievance, once started, to a hearing. In some cases, a conflict will arise between the union and an employee with respect to whether or not to proceed to a hearing. The union may refuse to represent the employee in a termination grievance, while the employee is anxious to have their day in court, so to speak. The union has broad discretion to review the case and decide against the case going to hearing as long as it reasonably examines the merits of the case and makes a call in good faith.
Good Faith Representation
This being said, the union still has a legal obligation to represent its members in good faith. If that is not done, a complaint may be made by the individual employee against the union and the employer together for this failure to represent the employee in good faith. These cases are generally quite difficult to win as there is a difficult onus on the employee to show that the union has failed in this obligation.
This is often a source of conflict between union management and the rank and file worker.
The issue of whether a unionized employee may bring a human rights complaint depends on the wording of the collective agreement. Most contracts require that such a complaint come through the union and proceed to arbitration. Occasionally, however, the complaint may be brought against the union itself, alleging that it was the union that treated the employee adversely and contrary to the Human Rights Code.
The common-law concept of wrongful dismissal has no application to the union worker. The unionized employee will receive whatever severance sum is allowed in the collective agreement and no more.
Consider the Full Range
When a unionizing campaign starts at your place of employment, it is wise to seek legal advice to understand the full ramifications of the success of such a plan. It is not all rainbows and sunshine. You need to understand all the pros and cons before making such a decision. Often groups of employees will seek such advice together which makes the cost generally minimal.
Get Advice. Know Your Rights.
Contact the offices of Guelph employment lawyer Peter McSherry. He will guide you through the issues and defend your position if necessary. Contact us online or by phone at 519-821-5465 to schedule a consultation.