Are you a unionized employee? Have you been terminated or have you experienced mistreatment in your workplace on the basis of your age, race, religious views, gender, sexual orientation or any other ground? It is important to remember that the rights and recourses available to unionized employees are different than those available to non-unionized employees. There are three areas in particular which present notable differences between the rights of unionized and non-unionized employees.
Union and Collective Agreement
If an employee believes that the employer has not complied with a term of their employment, a unionized employee is generally not allowed to commence a court proceeding in relation to a topic that is addressed in the Collective Agreement. Instead, a unionized employee must generally file what is known as grievance under the Collective Agreement. The Union and the employer are the two parties to a Collective Agreement, so the Union has carriage rights of any grievances that are filed. Typically, this means that the Union decides whether to bring a grievance on behalf of the employee and will file a grievance with the employer on behalf of the employee. If the Union has filed a grievance on behalf of an employee, the employee may be prohibited from asserting their rights elsewhere.
Employment Standards Act (ESA)
If the employer failed to comply with the ESA, a unionized employee cannot bring a claim to the Ministry of Labour unless the Director of Employment Standards consents. The Union may file a grievance for the employee.
The Collective Agreement may have sections about notice or pay in lieu of notice if an employee is terminated without cause. If it does not, then the employee is entitled to the notice and payments set out in the ESA. The ESA sets out the minimum amount of notice or pay that an employer must provide an employee if terminated without cause. It has two main sections in this regard: termination and severance. An employer can provide notice of termination or payment instead of notice. The ESA calculates the termination amount as roughly one week per year of service with the employer, up to a maximum of eight weeks. Under the ESA, severance pay is provided as a lump sum payment and is only available to employees with five years of service or more who worked for an employer with a payroll of $2.5 million or more. They can be provided with severance pay for a maximum of up to 26 weeks.
The Ontario Human Rights Code prohibits harassment and discrimination in employment on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. It also prohibits sexual harassment or sexual solicitation. The Human Rights Code applies to your employment even if you were unionized. If you have a claim because the employer has breached the Human Rights Code you could be entitled to lost income and additional damages.These additional damages are called ‘general damages’ and they are to compensate for injury to dignity, feelings and self-respect. If you have a human rights claim, you can file an application with the Human Rights Tribunal of Ontario or your union can file a grievance. You cannot do both. You have one year from the date of discrimination to commence the legal process about your human rights’ violation.
If you have any questions about your rights as a unionized employee, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.
The courts recently confirmed that layoffs remain a constructive dismissal even in the context of the Covid-19 pandemic.
Despite the many areas that limit unionized employees’ rights, these employees are able to bring human rights claims.
Terminated employees who worked for federal employers may be entitled to more termination pay.