The Jian Ghomeshi case raises a lot of different issues. From an employment viewpoint, it is a reminder that workers who are governed by a collective agreement have very limited rights and remedies when it comes to fighting a dismissal.
Many commentators, myself included, have publicly wondered about Ghomeshi’s decision to pursue the grievance process under his collective agreement while also filing a lawsuit in the civil courts. The law is clear that if a collective agreement applies, the employee cannot pursue a wrongful dismissal claim in court.
Ghomeshi’s civil claim is now a matter of public record and copies of it can be found online. Not surprisingly, it is not a claim for wrongful dismissal. That is because such a claim would be thrown out by the courts, which would affirm that his rights are limited to those provided by the collective agreement in place.
This raises an important point Canadian employees should understand: While being a member of a collective agreement does bring some benefits, it also significantly limits an employee’s legal rights and remedies.
On the bright side, if the employee is forced to pursue a grievance, he will not incur the legal fees a typical plaintiff in a civil lawsuit would. The union is his legal representative and must provide counsel in most circumstances.
That being said, the fact that the union is his legal representative can be a significant impediment. Rarely does a week go by in which our firm is not contacted by an individual who feels as though she is being treated unfairly and the union is not looking after her best interests.
Unfortunately, we must explain that unionized workers do not have the option of simply choosing to retain counsel and pursuing a civil action. Rather, they must work through the mechanisms provided by the collective agreement and seek the assistance of their union.
If they believe the union is not properly representing them, then they can go before the Ministry of Labour and bring what is commonly known as a DFR (duty of fair representation) claim.
Effectively, they would have to show the union has breached its duty to fairly represent them. There are lawyers who specialize in such claims and most will tell you that only a very small percentage of those claims are successful.
The threshold for the union to prove it has met its duty of fair representation is extremely low. And unless the court concludes that the union failed to meet that duty, then the individual employee will have no remedy available whatsoever.
Ghomeshi and his lawyers have attempted to creatively circumvent the collective agreement by filing a civil claim that is not based on a claim for wrongful dismissal, which would be obviously offside.
However, the law is that any claim that relates to the matters covered by the collective agreement is to be dealt with via the grievance process. This is interpreted quite liberally. As a result, it is quite unlikely the civil action will succeed.
However, as many have already stated, Ghomeshi’s approach seems to be more about public relations than law.
Average employees will not have the luxury of retaining counsel to file a $55-million claim while also retaining a public relations firm to advise them. Their options, especially if they are unionized, will be far more limited.
Stuart Rudner is a founding partner of Rudner MacDonald in Toronto. Follow him on Twitter @CanadianHRLaw or he can be reached at email@example.com.
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