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What if an Arbitrator and the Human Rights Tribunal Disagree About Whether an Employer Legally Dismissed an Employee?

Imagine you’ve been dismissed and you believe the reason is a violation of human rights legislation.  For example, you believe the employer fired you because of your disability.

In Ontario, a unionized employee who believes she has been discriminated against has a choice to bring a human rights complaint against her employer or file a grievance under the collective agreement.  If it isn’t settled, the grievance may end up before a labour arbitrator, who is given power in the Labour Relations Act to apply and interpret human rights legislation.  But what if the arbitrator dismissed the grievance?  Can the employee then turn around and try a human rights complaint, hoping for a different result?  The answer is, maybe.

The Human Rights Code, in Section 45.1 allows the Human Rights Tribunal to dismiss a complaint under the following circumstances:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

The idea here is to prevent duplicate cases.  Employers should not have to defend the same action in multiple forums.  The question for the Tribunal when a case comes before it that has already been the subject of an arbitration award is whether the human rights issue has “appropriately been dealt with” by the arbitrator.

Usually, the Tribunal has dismissed complaints that raise issues already considered by arbitrators.  However, in a case working its way through the system, the Tribunal ruled that an arbitrator who found an employer had just cause to dismiss an employee for absenteeism did not “adequately deal with”  the human rights aspects of the dismissal.  In Barker v. SEIU, the Tribunal ruled that it is not enough for the Tribunal to simply accept that an arbitrator has dealt with the human rights aspects of the dispute, instead, the Tribunal must be satisfied that the arbitrator “adequately” dealt with the human rights issues:

it is not sufficient that the human rights claims have been addressed or considered by a decision maker with the requisite authority.  The inclusion of “appropriately” in the statutory language signals a mandate to probe the relevant aspects of the other proceeding.  In my opinion, this amounts to more than a guarantee of basic procedural fairness.  As both the B.C. Tribunal and this Tribunal have stated in the passage cited above, in addition to fairness, “appropriately” also implies that the other proceeding applied “proper principles” and gave “due consideration” to the facts and relevant law.  These functions necessitate, at times, a deeper enquiry into the reasons of the other decision maker.

The arbitrator found that the employee had failed to provide the employer with proper medical information establishing her need for an extended absence or a date for a return to work.  Thus, applying the Hydro-Quebec test, he found that the evidence indicated that the employee would not be capable of returning to work in the foreseeable future, and therefore that the employer had just cause to dismiss the employee.  The Human Rights Tribunal was concerned that the arbitrator’s decision did not explicitly explore whether the employer could have accommodated the employee, as required by human rights legislation:

On the face of the written reasons contained in the Awards, there is no indication that the arbitrator heard any evidence about the employer’s ability to accommodate the applicant’s continued absence.  Absent express language, I cannot infer that the arbitrator decided that continuing the applicant’s employment could not be done without imposing undue hardship on the respondent.  While a failure to meet a job requirement may constitute a breach of a collective agreement and constitute just cause for termination, it is not implied in that analysis that the requirement itself is determined to be non-discriminatory.

So, what are we left with here?  Well, the human rights tribunal decision will continue to a hearing, unless settled.  The Tribunal could find that the Human Rights Code was violated, since the employer had not established that it could not accommodate the employee without suffering undue hardship.   You would then have one tribunal (arbitrator) finding the dismissal was lawful, and one (human rights tribunal) finding the dismissal was unlawful.  Odd.   Perhaps the arbitration award would become relevant to the Tribunal’s remedy.  On the other hand, since a collective agreement cannot contract out of the Human Rights Code, one would think that the Tribunal’s ruling trumps the arbitrator’s.

Do you think that unionized employees should be prohibited from brining human rights complaints against their employers, and instead be required to proceed through arbitration?  We already require this under the Employment Standards Act (see s. 99) , for example.

Can you think of any reason why the government might be concerned about closing the door to a human rights complaint by a unionized employee?  [HINT:  Think about who controls whether a grievance proceeds to arbitration or not]


12 Responses to What if an Arbitrator and the Human Rights Tribunal Disagree About Whether an Employer Legally Dismissed an Employee?

  1. charlie Reply

    January 31, 2011 at 12:32 pm

    I am confused. The tribunal vice chair in their decision to proceed refers to has the respondent did not accomodate, has the respondent not …… but the respondent is the union who has no power to accommodate the worker in the workplace. The union has the ablity to file a grievance and take it to arbitration. That is what it did. The union lost. Is not the issue that the union is discriminating against the member because it did not seek a judicial review. And that question need evidence on how the decision to review or not to . I don’t see how the issue of the disablity or the accomodation is related to that. I must be missing something.

    • admin Reply

      January 31, 2011 at 2:11 pm

      Charlie, the SEIU is the employer in this case.

  2. charlie Reply

    February 1, 2011 at 2:05 pm

    Thank you. In my defense I did say I was confused though truthfully I just can’t read. Thanks again.

    • admin Reply

      February 1, 2011 at 2:27 pm

      Charlie, completely understandable. We don’t expect the union to be the employer.

  3. Dave Reply

    February 2, 2011 at 2:28 am

    In most unions the union retains carriage rights and could theoretically stop a grievance before arbitration. This could place the aggrieved member at a disadvantage, but I would like to offer another explanation. From a policy perspective, human right legislation claims primacy over most other legislation, and elements have been added to it to protect those that need protection the most. Charlie mentioned judicial review, I think the process of judicial review and the fiscal implications of judicial review on the province could be adversely affected by disallowing the tribunal to review arbitrator’s decisions that fail to address the human rights issues of a case.

    Section 45.11 of the act establishes the Human Rights Legal Support Centre, which is tasked with, among other things, supporting applications for judicial review (Section 45.13(1)2 iii) and is government funded. If the union has abandoned or settled the grievance and the member has to go it alone, it is reasonable to assume that the member may seek the help of the Human Rights Legal Support Centre (as their union may consider the matter closed). The centre would then need to dedicate the time to have the arbitration decision reviewed and if successful the decision would be set aside (Judicial Review Procedures Act 2(4)). I would assume (read guess) the matter would then be referred to back to the arbitrator who has already been given jurisdiction over the matter.

    The standard of correctness applies to arbitrators interpreting human rights legislation. The keeper of “correctness” in a human rights context is the human rights tribunal. The government is on the financial hook, through the Human Rights Legal Support Centre, for representing people with human rights complaints at judicial review. It makes sense to just allow an aggrieved employee with a human rights claim to appeal to the human rights tribunal when the human rights matter was not appropriately addressed by the arbitrator.

    Would a successful judicial review send the matter back to the first arbitrator or could the Justice send it to the tribunal?

  4. Dennis Buchanan Reply

    February 2, 2011 at 2:44 am

    Certainly seems like a questionable decision. The Human Rights Code issue was properly before Arbitrator Surdykowski, and he adjudicated the issue. He may not have done so properly, but that’s an issue for the Divisional Court, not for the HRTO. In another proceeding, the question would usually be res judicata…

    …except that the parties are different. The parties to the grievance are the union and the employer, which is exactly why the grievor lacks standing to apply for judicial review, and this is exactly the morally persuasive reason the Tribunal went the way it did.

    I’m absolutely uneasy about the consequences of this decision in terms of certainty and finality – it rather undermines the integrity of the arbitration process if the HRTO can subsequently hold a hearing de novo in the event the employer wins – but I can see why this result applies.

    I do think that the Divisional Court is going to need to provide some guidance on s.45.1, however. On the one hand, the Tribunal has found that a grievance settlement entered into between the union and the employer, without participation by the grievor (and in circumstances in which the grievor fought the settlement tooth and nail, including an unsuccessful DFR Application) met the criteria of s.45.1 and barred the Application. On the other hand, there are decisions such as this one, and also others in which the union accepted the the employer’s response to the grievance and didn’t proceed to arbitration, in which s.45.1 was not held to constitute a bar.

    As to your query: There are good policy reasons for maintaining access by unionized employees to the Human Rights Code, despite the displacement of the individual contract of employment by the collective agreement…namely, that you can’t contract out of your human rights. It is likely not the case that the DFR mechanism could provide recourse for all instances of union tolerance of Code violations, and it is certainly true in any event that the HRTO is the better venue to deal with human rights issues than the OLRB.

  5. deb Reply

    September 5, 2011 at 2:01 pm

    what if the human rights commission has an agreement with the union and employer that it will be arbitrated? Isn’t that in itself a violation of your rights by not being a party to such an agrmt?

  6. ayoob Reply

    October 22, 2011 at 10:26 pm

    Human rights legislation takes supremacy over other laws because this is a charter right. if this argument is reflected with the common understanding that one cant contract out of your human rights in any given issue of violation of human rights employee should given the option to select the HRTO as his forum.
    But my question is employee opting to take arbitration and later realizes it is not going the way it should shouldn’t he/she be given the chance to take the matter to HRTO before a finality is reached in the arbitration.
    should an employee become a prisoner of his union merely because he filed a grievance
    in my opinion employee is the principal who hires the union. why cant then the employee fire the union if wanted

  7. Dennis Buchanan Reply

    October 27, 2011 at 3:03 pm

    An update: The Divisional Court just released a decision in College of Nurses v. Trozzi, which has similar features to this one. Suffice it to say that the Court does not share the Tribunal’s expansive view of the word ‘appropriately’. Here’s the link to the decision:

    • Doorey Reply

      October 27, 2011 at 3:04 pm

      Thanks Dennis, I will give this a read.

  8. Steven Reply

    November 9, 2011 at 7:54 pm

    I thought you’d like an update on the Barker v SEIU case:

    I suspect that in light of the ONCA decision in Trozzi and the SCC decision in Figliola ( the applicant realized that she would lose at judicial review and be stuck with the respondent’s costs.

    If she knew that the last decision of that adjudicator (Vice-chair F. Bhabha) to be judicially reviewed resulted in the applicant being ordered to pay $10000 in costs (, she probably knew that she had to get the JR application withdrawn or face stiff costs.

  9. Dennis Buchanan Reply

    November 10, 2011 at 1:44 pm

    Not that it really matters, but I’m not so sure it’s fair to assume that the withdrawal resulted from these cases – too quick on their heels, in my humble opinion; the HRTO’s dismissal came 15 days after Trozzi was released and 8 after Figliola…while it’s probably true that the Tribunal is quicker to get things off their plate than deal with issues still on it, I still really doubt that there would have been time for all sides to decide on a course of action and then for the Tribunal to process and release the decision accordingly. More likely, to my mind, that there was a settlement agreed upon before these decisions were released.

    You’re right that an applicant who gets taken to the Div Ct unsuccessfully can face hefty costs sanctions, and so the risk can dissuade someone from proceeding…

    …but I don’t think that Trozzi or Figliola are necessarily dispositive of the issue in Barker. The majority decision in Trozzi turns on the public protection mandate of the College of Nurses. If there’s any adjudicative body that can’t be said to have such a mandate (though, as Justice Lederer points out in his concurring reasons, I’m not sure there is such a body), it’s an arbitration panel.

    And in Figliola, while the language being interpreted is the same, the slim majority’s conclusions turn heavily on contextual factors (the surrounding text in the BCHRC and the Hansard) which don’t necessarily apply to Ontario’s Code. While I think Figliola creates a lot of risk for an applicant (not that this particular proposition of law was ever likely to land in favour of applicants), it is conceivable that Ontario Courts would distinguish Figliola, and especially with the changes to the SCC it’s hard to assume that the Figliola dissent won’t hold the day in Ontario, which would give the Tribunal a wider discretion.

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