Collective agreement had jurisdiction, but union abandoned grievance
A unionized worker can’t contest his dismissal or discrimination allegations in court after his union elected not to pursue his grievance due to a lack of a basis to dispute it, the BC Supreme Court has ruled.
The worker was a flight attendant for Jazz Aviation, a regional airline. In 2016, a co-worker made racist comments towards the worker during the training program. Three years later in 2019, the worker had a verbal and physical altercation with another employee.
The co-workers involved in both incidents were educated on their conduct. However, shortly after the second incident, the worker was fired for failing to follow the chain of command. The worker disagreed with the reason for discharge and claimed that Jazz fabricated documents – stemming from the airline accepting information from other employees discounting his version of events - and his discharge was racially motivated.
The worker grieved his dismissal, alleging that Jazz followed a pattern of dishonesty and discrimination against him. However, the union abandoned the grievance after receiving legal advice that there was no basis to dispute the dismissal.
An Ontario employer has just cause for terminating a worker for dishonesty, but was liable for harassment and an improper investigation, an arbitrator ruled.
Unfair representation complaint
The worker filed a complaint with the Canadian Industrial Relations Board alleging that the union breached its duty of fair representation under the Canada Labour Code. The complaint and a request for reconsideration were dismissed.
The worker then launched an action against Jazz in the Federal Court seeking certification as a class action, but the court struck it down. The Federal Court found that the essential character of the worker’s claim was from a dispute over the employment relationship. The employment relationship was governed by the Canada Labour Code and the collective agreement, so the proper avenue to deal with the dispute was arbitratrion, said the court.
The worker’s applications for leave to appeal to the Federal Court of Appeal and the Supreme Court of Canada were dismissed. The worker then tried to have his Federal Court action transferred to the BC Supreme Court, but he was unsuccessful and the Federal Court prohibited him from filing further applications before it without prior leave of a judge.
The worker made an application with the BC Human Rights Tribunal, but the tribunal found that the 2016 incident was out of time and the 2019 incident could have been raised in his termination grievance but was not. It dismissed the application because the worker “could have used other processes to raise his human rights issues.”
An Ontario worker’s failure to co-operate with accommodation and investigation efforts was job abandonment, an arbitrator said.
Wrongful dismissal, discrimination action
The worker finally commenced an action against Jazz before the BC Supreme Court, alleging wrongful dismissal, breach of the BC Human Rights Code, breach of the Canadian Criminal Code, breach of the Canadian Charter of Rights and Freedoms, and defamation and libel. The action was based on the two incidents with Jazz employees and his dismissal, claiming that the co-workers breached Jazz’s workplace violence policy and work harassment policy, and Jazz didn’t implement the policies appropriately.
The worker also alleged that his dismissal was contrary to the collective agreement and his union was in a conflict of interest because one of the co-workers was an officer of the union. The worker said that, although the issues in his action were addressed in the collective agreement, he had not been given a fair opportunity for a trial.
The BC Supreme Court found that the collective agreement was broad and covered the conduct of the co-workers and the worker, the “essential character of the dispute” fell within the collective agreement, and an arbitrator would have jurisdiction to award the monetary damages claimed by the worker in the court action.
The court noted that the Supreme Court of Canada had stated that “if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in that dispute” due to mandatory arbitration clauses in labour relations legislation.
The BC Supreme Court found that “a policy decision made by the legislature that is both binding on [the worker] and the courts” in labour relations legislation meant that the worker’s matter must be dealt with in arbitration. While the worker was upset that the union elected not to proceed to arbitration, the action “falls squarely within the collective agreement” and there was no residual jurisdiction for decision-makers outside of the labour process, said the court in dismissing the worker’s action.
