Myth: Unionized employees have to seek redress through the grievance arbitration process when their human rights have been violated.
Fact: Unionized employees can often seek redress through provincial and federal human rights tribunals when their human rights have been violated.
Conventional wisdom has always been that Unionized employees are better protected than non-union employees. We are frequently told that Unions will stand up for workers when they are most vulnerable, when employers behave badly, and when important interests such as human rights are at stake.
Like you, Franklin Law knows that while that may hold true for some Union employees, it provides little if any comfort to other Union employees who have been discriminated against, harassed, and reprised against at work but find themselves disenfranchised from their Unions. For one reason or another, members of this subset of Unionized employees feel powerless, frustrated, and betrayed. They cannot persuade their Unions to file human rights related grievances on their behalf, or simply do not want their Unions to have anything to do with their human rights cases.
Like you, we understand that disenfranchised Unionized employees often want greater control over their human rights cases, have serious concerns about their Unions’ ability to understand the subtle and nuanced nature of the discrimination that they have been subjected to, and have grave concerns about their Unions’ ability or willingness to put their interests first – especially given the Unions’ obligation to other employees in the bargaining unit and longstanding relationship with employers.
In 2008, significant changes were made to Ontario’s Human Rights Code. At the provincial level, those changes made it easier for Unionized employees to pursue redress for the infringement of their human rights at the Human Rights Tribunal of Ontario. Federally, Unionized employees continue to be pressured to go through their Unions, but options remain available to some unionized employees to file a complaint under the Canadian Human Rights Act and seek redress through the Canadian Human Rights Commission and Canadian Human Rights Tribunal.
From the outset, Franklin Law has been a leader in helping disenfranchised Unionized employees to seek redress for the violation of their human rights in situations where their Unions and the grievance arbitration process are ill-suited to their specific needs. We have done so unapologetically, raising the ire of some Unions and the respect of many more. Cases that we have argued on behalf of Unionized employees like Upchurch v. MTI Mechanical Trade Industries, 2010 HRTO 1323 (CanLII), Bangura v. Ontario (Community and Social Services), 2011 HRTO 929 (CanLII), and Mazzariol v. London Catholic District School Board, 2016 HRTO 1209 (CanLII) continue to be relied on by other Unionized employees who want or need to fight human rights related injustice on their own terms, with a level of control often absent in grievances brought by Unions before an arbitrator.
To continue learning about human rights law and the ways in which Franklin Law can provide you with support, advice, and representation at the Human Rights Tribunal of Ontario, Canadian Human Rights Commission, Canadian Human Rights Tribunal, and other human rights tribunals, please read on…
The Human Rights Code, the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms protect employees and others from discrimination and/or harassment on the basis of an individual’s or group’s personal characteristics including race, disability, place of origin, colour, citizenship, creed, sex, gender expression, gender identity, age, marital status and a number of other prohibited grounds. Discrimination can take many forms but is generally defined as a distinction related to the personal characteristics of an individual or group, which has the effect of imposing burdens, obligations, or disadvantages on the individual or group that is not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
Discrimination can be overt and blatant such as when an employee is denied a job opportunity because of the colour of his or her skin, age, or religion. But sometimes it can be very subtle. For example, an employer may implement a workplace rule or requirement that applies to all workers and on first glance appears to affect all of them equally. However, when the requirement is actually implemented, it soon becomes apparent that the requirement has an adverse effect on an employee because of his or her disability, religion or other personal characteristic. Because the employee’s employment experience has been adversely affected relative to other employees who do not share his or her personal characteristics, the Human Rights Code and the Canadian Human Rights Act impose a duty upon his or her employer to accommodate him or her to the point of undue hardship. If the employer can’t demonstrate that it accommodated the employee to the point of undue hardship, the employer will have discriminated against the employee.
Harassment occurs when an individual or group is subjected to a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome and that is related to the personal characteristics of the individual or group.
The Human Rights Code, the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms protect employees and others from discrimination and/or harassment on the basis of an individual’s or group’s personal characteristics including race, disability, place of origin, colour, citizenship, creed, sex, gender expression, gender identity, age, marital status and a number of other prohibited grounds. Discrimination can take many forms but is generally defined as a distinction related to the personal characteristics of an individual or group, which has the effect of imposing burdens, obligations, or disadvantages on the individual or group that is not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
Discrimination can be overt and blatant such as when an employee is denied a job opportunity because of the colour of his or her skin, age, or religion. But sometimes it can be very subtle. For example, an employer may implement a workplace rule or requirement that applies to all workers and on first glance appears to affect all of them equally. However, when the requirement is actually implemented, it soon becomes apparent that the requirement has an adverse effect on an employee because of his or her disability, religion or other personal characteristic. Because the employee’s employment experience has been adversely affected relative to other employees who do not share his or her personal characteristics, the Human Rights Code and the Canadian Human Rights Act impose a duty upon his or her employer to accommodate him or her to the point of undue hardship. If the employer can’t demonstrate that it accommodated the employee to the point of undue hardship, the employer will have discriminated against the employee.
Harassment occurs when an individual or group is subjected to a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome and that is related to the personal characteristics of the individual or group.
Our personal characteristics – our race, disability, ancestry, place of origin, colour, ethnic origin, creed (e.g., religion), sex, sexual orientation, gender identity, age, marital status, family status, etc. – are what make us unique and what adds to the diversity that we hold so dear in Canada. Somewhere along the line your employer has lost sight of this most basic truth. Whether intentionally or not, it has treated you differently and disadvantaged you for reasons related to your personal characteristics. Some of your co-workers are reluctant to acknowledge it but you’ve been here before…you know when you are being discriminated against or harassed and you know what it feels like to be treated differently because of a characteristic that you were born with or otherwise don’t have any control over. You feel humiliated, angry and powerless when at work and these emotions resurface when you go home at night.
This is not the time for quick uninformed decision making. This is not the time to use your employer’s internal human rights complaint process, file a human rights complaint at the Human Rights Tribunal of Ontario, file a complaint at the Canadian Human Rights Commission or seek redress through a wrongful or constructive dismissal lawsuit in Court. Each option has its own pros and cons and the consequences of making the wrong decision can be catastrophic both financially and in terms of your sense of dignity and self-esteem. This is the time to document as much as you can, think about your strategy going forward and figure out what option will best suit your needs.
Step 2: Meet with one of Franklin Law’s Human Rights Lawyer Toronto Specialists
In order to figure out what to do next, you need information that you can trust. Now is the time to speak to an experienced human rights lawyer Toronto service provider who understands workplace discrimination and harassment, is committed to representing employees, and knows the strengths and weaknesses of pursuing human rights complaints at the Human Rights Tribunal of Ontario, Canadian Human Rights Tribunal or in Court.
It is often difficult to determine the best forum in which to seek redress when your human rights have been violated. Figuring out the best way to hold your employer accountable and secure the compensation you deserve often requires legal training and “hands on” experience that most employees and many lawyers do not have. Now is the time to book a Franklin Law consultation.
Franklin Law takes discrimination and harassment very seriously and understands the immeasurable impact it can have on an individual’s sense of dignity, self-esteem and self-confidence. A core part of Franklin Law’s practice involves representing employees in human rights complaints and we are proud of the fact that we have an incredibly diverse client base. Because we have represented employees, students and customers in human rights complaints based on their disability, race, sex, sexual orientation, religion, creed, colour, ethnic origin, place of origin, and ancestry, our lawyers are well positioned to provide you with timely and trustworthy advice, represent you in negotiations and if necessary, represent you in a human rights complaint if you have been discriminated against or harassed.
While we typically only represent employees or victims of discrimination, this is one of a few areas where we are open to working with employers who require assistance in investigating complaints, training their employees and developing and implementing non-discrimination policies, programs and procedures. By limiting our practice in this way, we provide a supportive environment in which those who believe that they have been discriminated against or harassed can tell their stories and secure the redress they deserve, without fear of being judged or further victimized.