Workers such as Jian Ghomeshi, who are governed by a collective agreement, have limited remedies
By Stuart Rudner
As many have commented, the Jian Ghomeshi case raises many different issues. Among other things, 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 his 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.
Jian 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 that Canadian employees should understand. While being a member of a collective agreement does bring some benefits with it, it also significantly limits an employee's legal rights and remedies. On the bright side, if the employee is forced to pursue a grievance, she will not incur the legal fees that a typical plaintiff in a civil lawsuit would. The union is her legal representative, and must provide counsel in most circumstances.
That being said, the fact that the union is her 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 he is being treated unfairly and that his union is not looking after his best interests.
Unfortunately, we must explain that he does not have the option of simply choosing to retain counsel and pursuing a civil action. Rather, he must work through the mechanisms provided by the collective agreement and seek the assistance of his union.
If he believes the union is not properly representing him, then he can go before the Ministry of Labour and bring what is commonly known as a “DFR" or duty of fair representation claim. Effectively, he would have to show that the union has breached its duty to fairly represent him.
There are lawyers who specialize in such claims, and most of them will tell you that only a very small percentage of such claims are successful. The threshold for the union to prove that 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 that the civil action will succeed. However, as many have already stated, Ghomeshi’s approach seems to be more about public relations than law.
The average employee will not have the luxury of retaining counsel to file a $55-million claim while also retaining one of the leading public relations firms to advise her. Her options, especially if she is unionized, will be far more limited.
