When Should Unionized Employees Consult an Employment Lawyer?

Feb 12, 2019

Are you a unionized employee dealing with an employment matter but having difficulty finding a lawyer that will assist you?

This may be because the rights and recourses available to unionized employees differ from those available to non-unionized employees. To read about how these rights differ, read our previous blog here.

In most cases, if you feel that your employer is not complying with terms of your collective agreement, you can request that your union bring a grievance on your behalf. Unionized employees are prohibited from starting a court proceeding on a topic covered by their collective agreement.

Collective Agreement

A collective agreement addresses the employment relationship between you, your employer, and the union. It outlines conditions of employment such as hours of work, overtime pay, and wages.

Union members are represented by an elected member known as a union representative, union steward, or shop steward. This representative ensures that the employer is complying with the collective agreement.

When you have a problem with your employer, the union representative is commonly your first point of contact as a unionized employee. Often, a collective agreement outlines the process that workers must follow if their employer is not complying with the collective agreement.

Human Rights

Although the rights of unionized employees are more restrictive than non-unionized employees, there are certain situations where you do not have to follow the procedure outlined in your collective agreement or involve your union.

Most workers in Ontario are covered by Ontario’s Human Rights Code (or if you are a federal worker, by the Canadian Human Rights Act). If your complaint is about the breach of your human rights, then you may be able to bring an application in the Human Rights Tribunal.

A complaint to the Tribunal may be made instead of following the process in your collective agreement, or in rare circumstances, in addition to it. If your union has filed a grievance on your behalf related to substantially the same human rights issue, the Tribunal will usually wait to deal with your application until that grievance is resolved. In reality, the majority of cases that have been dealt with through the grievance process are dismissed at the summary hearing stage.

If you believe that you have the grounds to file a human rights complaint, contact one of our employment lawyers as soon as you can. You only have one year from the time of the last incident to file this complaint, and you never know if the Tribunal will use its discretion to accept a late application.

Unsafe Work

Under Ontario’s Occupational Health and Safety Act, you have the right to know about the hazards in your workplace, the right to participate in workplace health and safety decisions, and the right to refuse to do a task that you believe is dangerous. You must tell your employer or supervisor as soon as possible and explain why you believe the task is unsafe for you or for someone else to perform. You can act on your right to refuse to do work without talking to your union first.

If your employer responds by punishing you for acting on your right, then you may be able to make a complaint at the Ontario Labour Relations Board. Unionized employees must elect between grievance arbitration or the Ontario Labour Relations Board route. If you believe that your employer punished or threatened you for refusing to do unsafe work, contact us.

Duty of Fair Representation

Unions have a legal duty to fairly represent their employees.  Unions must ensure that the interests of all employees are served in a manner that is not arbitrary, discriminatory, or in bad faith.

The duty of fair representation does not require the union to grieve your case. Although the union must listen to your complaint and discuss it with you, the union ultimately has the power to decide what action to take, if any.

If the union fails to properly investigate, process, or arbitrate your grievance, then you may file a duty of fair representation complaint with the Labour Relations Board.

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 material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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