Introduction
As an employer operating in a unionized environment—whether in Ontario or under federal jurisdiction—you may encounter complex workplace disputes involving human rights issues. A common question that arises is whether employees can bypass their union to file a human rights complaint directly.
Historically, the answer was uncertain, and unions were seen as the primary—if not exclusive—representative for workplace disputes. However, recent legal decisions have clarified when employees can pursue human rights claims independently. Understanding these rulings is essential for ensuring compliance, managing risk, and effectively handling workplace disputes.
A large part of my practice encompasses the greater Ottawa market. With this geographic location comes the natural tendency for me to encounter unionized employees, specifically Federal Public Sector Employees (“FPSE”), seeking advice on their work circumstances. FPSE will often come to me stating that they are facing human rights discrimination at work and do not understand their available resources. Notably, FPSE are governed by a myriad of interweaving statutes and related case law. This blog post does not consider all such legal parameters; it focuses on human rights protections.
Human Rights Protections in Unionized Workplaces: Ontario and Federal Jurisdictions
Both Ontario and federal employment laws provide strong human rights protections, but they operate under different frameworks:
Ontario: The Ontario Human Rights Code (the “Code”) prohibits workplace discrimination based on race, gender, disability, age, and other protected grounds. Complaints typically go to the Human Rights Tribunal of Ontario (HRTO).
Federal: The Canadian Human Rights Act (“CHRA”) applies to federally regulated industries, such as banking, telecommunications, and interprovincial transportation. Complaints are brought to the Canadian Human Rights Commission (CHRC) and may be referred to the Canadian Human Rights Tribunal (CHRT).
In unionized environments, these protections intersect with labour laws, raising questions about whether an individual employee can bypass the union to file a complaint.
Union Representation in Human Rights Disputes
Unions typically have exclusive jurisdiction over workplace disputes, meaning they are responsible for filing grievances, including those related to human rights. This exclusivity is rooted in collective agreements and labour relations legislation, such as the Ontario Labour Relations Act and the Canada Labour Code.
However, employees who believe their union is not adequately representing their interests—especially in cases of discrimination or harassment—may attempt to bring their human rights claims independently. Recent case law has shed light on when this is allowed.
Key Legal Decisions Impacting Employers
Northern Regional Health Authority v. Horrocks (2021 SCC 42)
The Supreme Court of Canada ruled that labour arbitrators have exclusive jurisdiction over human rights claims arising from collective agreements unless legislation explicitly states otherwise. In Manitoba, this meant that employees could not file human rights complaints independently.
London District Catholic School Board v. Weilgosh (2024 ONSC 3857)
In contrast, Ontario’s Divisional Court confirmed that employees in unionized workplaces can bring complaints directly to the HRTO. The Court found that Ontario’s Human Rights Code provides concurrent jurisdiction, meaning employees can choose between arbitration and the Tribunal.
Ali v. Department of National Defence,(2022 CHRT 44)
The CHRT ruled that federally regulated employees, particularly in the public sector, can bring human rights complaints independently to the CHRC and CHRT, especially if their union refuses to pursue the grievance.
What This Means for Employers
These decisions have significant implications for how employers should approach workplace disputes involving human rights:
Expect More Individual Complaints:
Employees in Ontario and federal workplaces may bypass their unions and file human rights claims directly, leading to parallel legal proceedings.
Ensure Union Engagement:
Proactively engaging with unions on human rights matters can help resolve issues internally and reduce the risk of external complaints.
Strengthen Policies and Training:
Employers should review workplace policies, ensure they align with human rights laws, and provide training to managers and union representatives on handling discrimination complaints.
Consult Legal Counsel:
Given the evolving legal landscape, working with legal advisors to navigate human rights issues and collective agreement obligations is essential.
Conclusion
Employers must be aware that unionized employees in Ontario and federally regulated sectors now have clearer pathways to pursue human rights claims independently. Managing these matters effectively requires a proactive approach, strong policies, and collaboration with unions to minimize legal risks and maintain fair workplaces.
If you need guidance on handling human rights complaints in a unionized environment, contact us for advice tailored to your business needs.
