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Blunder procedure and it could cost you

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When Garry and Mark Coleman heard that fellow employee Wayne Demers was planning to file a fraudulent insurance benefit claim, they told their employer. Demers was fired. Hostility brewed among Demers’ former union brethren. When that hostility escalated to fear, the Colemans resigned. Months later, with their reputations questioned and their jobs gone, they turned to the courts instead of their union to grieve their alleged wrongs. Their decision proved fatal.





Likely reluctant to follow union protocol and grieve their alleged harassment with their union, the Colemans initiated their legal action in the courts — suing their former employer, their former union, a union representative, and Wayne Demers.





Presumably the Colemans were attracted to the notion of a lawsuit versus a typical union grievance — the potential monetary recovery seemed greater, the media would surely report their case and the judge would sympathize with them — or so they thought.





Rather than responding to the merits of the Colemans’ case, the defendants argued that, as unionized employees, the plaintiffs had no right to sue in the courts.





Recently, a judge agreed, ruling that although the courts have some limited discretion to entertain the dispute, unionized employees generally must seek redress through grievance procedures in their collective agreements, or through labour tribunals.





The concept of preventing unionized employees from suing their employers in court is not novel. Since 1995, when the Supreme Court ruled disputes arising under a collective agreement can only be resolved by labour tribunals, unionized employees have been without the same access to the courts as their non-unionized peers.





Here is some advice for unionized employees seeking to bring their claims before the courts:



  • Approach jurisdictional issues practically. With the preponderance of case law stacked against you, only go to court as a last resort.

  • Review and exhaust available appeal routes promptly. Most collective agreements require grievances to be brought within strict time limits. Similarly, labour relations tribunals turn away complaints that are brought in an untimely fashion.

  • Obtain professional advice. The jurisdictional maze of the Ontario court system is complex — and the appropriate procedural route will differ depending on the facts of the case.





Daniel A. Lublin is a Toronto employment lawyer. He can be reached at dan@toronto-employmentlawyer.comor you can visit him on the web atwww.toronto-employmentlawyer.com.

 
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