What is Labour Law?
The term "Labour Law" is often used interchangeably with "Employment Law". They are not one and the same.
Generally speaking, Labour Law deals with the rights, restrictions and obligations of employees, employers and trade unions. In essence, it applies to a unionized work environment, whereas Employment Law, for the most part, applies to a non-unionized workplace.
Can unionized employees sue for wrongful dismissal?
The answer is "NO". However, unionized employees have special rights guaranteed to them under labour relations legislation. For example, in Ontario, the Labour Relations Act provides that no unionized employee can be terminated without "just cause". Just cause in a unionized environment is a little different from just cause in a non-unionized workplace. Arguably, it is more difficult to establish just cause when terminating a unionized employee. Generally, a unionized employee must be found guilty of wilful misconduct or wilful neglect of duty, in order to lose his or her employment on a permanent basis. Even then, arbitrators have the right, in certain circumstances, to lessen the penalty and put employees back to work. This does not happen in employment law.
Can a unionized employee be terminated with notice or pay in lieu of notice?
Generally, the answer is also "NO". We often hear of non-unionized employees claiming "wrongful dismissal" upon termination of employment. In employment law, "wrongful dismissal" has been defined as the failure to provide reasonable notice of termination of employment or pay in lieu of that notice. This does not apply in labour law, because as mentioned previously, termination can occur only for "just cause".
Are poor performing employees protected if they are unionized?
No. Poor performing employees do not have guaranteed jobs in a unionized environment. It is however much harder for employers to fire them. Employers cannot give reasonable notice of termination or pay in lieu of notice to get rid of a poor performing union employee. Rather, the employer is required to impose escalating (progressive) discipline over a period of time, ultimately terminating that employee for "just cause". Often, this begins with a verbal warning, then a written warning, followed by a suspension (the time varies depending upon the severity or frequency of the wrongdoing), culminating in dismissal for just cause. As noted above, in most cases, an arbitrator has a right to second-guess the employer, and lessen the penalty, based upon the circumstances.
Can unionized employees fight an employer in court?
Again, the answer is "NO". In labour law, except for in very limited circumstances, a unionized employee does not have a right to pursue his or her own case. That right belongs exclusively to the union. In labour law, the rights and obligations of workers, employers and unions are for the most part governed by a Collective Agreement signed between the employer and the union. Employees do not sign that agreement, nor are they recognized parties to that agreement. There are only two parties: the employer and the union. The union has a statutory obligation to represent its unionized employees (often called "bargaining unit employees") to the best of its ability. This is referred to as the "Duty of Fair Representation" and it requires the union to represent its members fairly, in a manner which is not discriminatory, arbitrary, or in bad faith. Therefore, the courts have held that unionized employees do not have a private right to sue an employer. Where a dispute arises out of a Collective Agreement, the matter must be decided exclusively by an arbitrator – not a court. Labour law legislation also makes this very clear.
What can Hyde HR Law do for my company?
The lawyers at Hyde HR Law are labour law experts. We are certified by the Law Society of Ontario, as Specialists in Labour Law. What have we done for our clients? We have stopped union organizing drives. We have prevented union certifications. We have represented our clients before the Ontario Labour Relations Board and the Canada Industrial Relations Board. We have extensive experience in collective bargaining on behalf of employers. We have fought hundreds of union grievances and arbitrations. We provide employer strategy, advice and representation in all labour law matters. Contact us today.