Preference for labour arbitration to address human rights disputes in unionized workplaces
The Alberta Human Rights Tribunal has dismissed a unionized worker’s discrimination complaint because the same issues were being handled in a grievance arbitration.
The worker was a police officer for the Calgary Police Service (CPS). In 2015, she was sexually assaulted by another police officer. One year later, she was sexually assaulted outside of work by someone unrelated to CPS. As a result of the sexual assaults, the worker developed a mental disability.
CPS was unaware of the other officer’s sexual assault, but the worker revealed her mental disability and requested accommodation. CPS accommodated her in August 2020 and participated in ongoing discussions about her placement, work performance, and restrictions.
In April 2021, the worker told CPS about the 2015 sexual assault by another officer. CPS initiated disciplinary proceedings against the other officer and developed workplace restrictions for both the worker and the other officer while the investigation took place. The restrictions included requirements to avoid all contact with each other whether in person, by email, by telephone, or on social media, and directions on how to conduct themselves if they inadvertently came across each other.
However, the worker believed that not enough was done to prevent her from encountering the other officer at work. In October, CPS placed her in isolated roles, which she felt was a failure to reasonably accommodate her mental disability.
Discrimination grievance
The worker filed a grievance about CPS’s accommodation efforts and alleged that it discriminated against her.
The worker also made a discrimination application to the Alberta Human Rights Commission alleging that CPS discriminated against her in the area of employment on the protected characteristic of gender and mental disability. She explained in her documents that she believed “grievance arbitration is likely the correct forum to resolve all the issues between her and [CPS] with respect to its handling of her mental disability and her status as the survivor of a sexual assault by a co-worker.” However, she said that she filed the human rights complaint “out of an abundance of caution to preserve her rights in case it is later determined that some issues are properly before the tribunal rather than a grievance arbitrator.”
CPS requested that the human rights complaint be dismissed as an abuse of process and a duplication of litigation.
The Director of the Human Rights Commission dismissed the worker’s application, stating that “as the substance of this complaint is currently being dealt with through the union grievance process, I find that that is the more appropriate forum for the issues in this complaint to be heard.” The Director found that the same issues should not be litigated in different forums.
Grievance, human rights complaint different: worker
The worker appealed the Director’s decision to the Human Rights Tribunal. She argued that the rights at issue in the grievance arbitration weren’t identical to those addressed by her human rights complaint, although she didn’t specify. She also noted that there were only 60 days to file a grievance, while the Alberta Human Rights Act (AHRA) allowed for up to a year to pass for a complaint to be filed.
The tribunal referred to s. 21 of the AHRA, which allows the Director to dismiss a human rights complaint “if it is being, has been, will be, or should be dealt with in another forum.” It also noted that the courts “have consistently affirmed that there is a preference for labour arbitration as the forum for adjudicating human rights disputes arising from unionized workplace.” The AHRA confirmed this, with s. 21 showing “legislative intent to prioritize judicial economy, finality, predictability, and certainty around jurisdictional lines between competing tribunals.”
In this case, the tribunal found that the worker claimed that the issues between her human rights complaint and grievance were different, but this contradicted her explanation that they both addressed CPS’s handling of her mental disability and status as a sexual assault survivor, and the human rights action was filed in case that was the proper forum.
Duplication
The tribunal found that there was an outstanding grievance addressing the same issues that the worker sought to be heard before the Human Rights Tribunal. As a result, it was a matter that was being, will be, or should be dealt with through grievance arbitration, said the tribunal in upholding the Director’s decision that the worker’s application should be dismissed.
“I do not wish to downplay the seriousness of the complainant’s experiences, particularly of having experienced sexual assault by a colleague,” said the tribunal. “I wish both parties well as they proceed to arbitration where the full merits can be adjudicated in the appropriate forum.”
