Last week, we looked at the plight of unionized workers. While many assume that unionized workers have greater protections than non-unionized workers, this is not always so.
When a union fails to file a grievance on behalf of a unionized worker, or fails to pursue it diligently, the end result can be that the unionized worker is effectively left without any realistic remedy.
There are few areas within the law in which people are basically told, sorry, too bad, so sad, but the law will not assist you.
In a non-unionized setting, the employee has a contract with the employer. This may or may not be in writing. A non-unionized employee may generally seek recourse against the employer if it fails to fulfil its obligations or respect the employee’s rights.
In a unionized setting, the union has a contract with the employer. This is a collective agreement. The union bargains on behalf of the employees as a group. It is the union, rather than individual employees, that holds the employer accountable for breaches of the collective agreement.
While unionized employees still have rights, and unionized employers still have obligations, this becomes more complicated in the union context, because legislation may allow the collective agreement to depart from certain rights or obligations that otherwise exist. Complexity also arises because unionized employees are often expected to seek recourse through the union rather than through administrative tribunals or the courts.
Courts can be extremely quick to dismiss attempts by unionized members to seek remedies in court.
The ultimate underlying assumption is that the union will take care of its members. This assumption also underpins several legislative provisions. The assumption does not always hold true. The result is that unionized workers can be worse off than non-unionized workers.
Sending the employee back to the union to seek recourse is rather circular, if at least part of the problem in the first place is the union.
Unions are not necessarily required to take up every grievance. The law recognizes that unions have limited resources. They may prioritize grievances.
Unionized workers may complain of unions that are reluctant to support grievances while allowing union representatives to accumulate frequent flyer points attending lavish international conferences, at union expense. Members might legitimately ask: is this the best use of membership dues?
Workers may feel that some union leaders are akin to Orwell’s pigs in Animal Farm.
A union member who has been wronged by the employer, let down by the union may not feel that justice has been served if there is little if any meaningful recourse in court or in regulatory tribunals against either the employer or the union.
This contrasts with the position of non-unionized workers, for whom the Supreme Court of Canada has repeatedly acknowledged the importance of work. Passages from the 1997 decision of the Supreme Court of Canada in ‘Wallace v. United Grain Growers’ capture this. For example, the Court observed that “A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.” It went on to state that “for most people, work is one of the defining features of their lives.” Further, “The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection… the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal.”
Our courts, including the Supreme Court of Canada, have consistently acknowledged the devastation and injustice that results from employment dismissals in non-unionized settings.
Yet, unionized workers are often expected to seek recourse from the union. If unions fail to act properly, employees can attempt to file a complaint with the LRB. While succeeding with such a complaint is certainly not impossible, they have a high failure rate in B.C. Further challenges in court may not be successful either.
Maybe it is time for our justice system to reexamine our approach to remedies for aggrieved union members, including the assumptions underlying the laws that apply to them.