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Lakehead University: Can a Unionized Employee Proceed with a Human Rights Complaint when their Union elects not to proceed with a Grievance?

When a unionized employee believes her rights under the Human Rights Code have been violated, and she is prepared to challenge her employer, she has a choice to make.  She can file a complaint under the Human Rights Code, or she can file a grievance under the collective agreement.   If she chooses the latter, she will often (but not always) then find that she has forfeited her right to bring a human rights complaint.  That’s because the Code, in section 45.1, allows the Human Rights Tribunal to dismiss an application  that has already been dealt with in another legal proceeding.  When a grievance has been filed dealing with the same issue as the human rights complaint, the Tribunal will usually defer to the grievance arbitration process, and then will usually (but not always) dismiss the human rights complaint under section 45.1 once the grievance has been dealt with by the arbitrator.

But what if a union elects not to file a grievance on behalf of a bargaining unit employee.  Can the employee then proceed on their own to file a human rights complaint?

That was the issue considered in a recent dispute between some faculty members in a dispute with Lakehead University. I can’t tell what the allegation is here, other than that two faculty allege the suffered unlawful reprisal under Section 8 because the exercised some right under the Code.  If anyone involved has more details, send them along.  It appears though that after some discussion amongst the faculty union, the complainants, and the employer, the union elected not to file a grievance in behalf of the complainants.  The complainants then proceeded on their own to file a human rights complaint against the employer and the union, among other individuals.

Lakehead University argued that the Tribunal should dismiss the HRC complaint because a grievance could have been filed, but wasn’t.  The Tribunal dismisses that argument:

[13]           The crux of the University respondents’ argument, however, is that the applicants could have filed grievances and that the Applications ought to be dismissed because another avenue was available to the applicants for resolving the issues raised in the Applications.  Importantly, however, since the amendments brought to the Code in 2008, the fact that a grievance could have been filed is not a basis for dismissing the Applications.

[14]           As no grievances were filed, I find that there was no other proceeding within the meaning of section 45.1 of the Code. The Request to dismiss is accordingly denied.

This week, the Tribunal dismissed a request for the Tribunal to reconsider and overrule that decision.

This decision seems to reject the argument that unionized employees must exhaust the grievance procedure before turning to the human rights code mechanisms?  Do you think that a unionized employee should be required to proceed with a grievance if they think their human rights code rights have been violated, or should they be entitled to go to the human rights Tribunal if they prefer that option?

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