Human Rights: The Union as a Respondent

A union may be found to be in violation of a human rights standard in two ways. ¹ The first is a situation where the union has participated in the work rule that has the discriminatory effect on the complainant. It matters not at whose initiative the rule was created.

The case in question arose from a Seventh Day Adventist employed as a unionized janitor. The collective agreement required him to work Friday evenings, which conflicted with his religious requirements. The School Board had offered a Thursday to Sunday shift to accommodate the religious beliefs of the complainant. The union, however, refused to accede to this variation of the collective agreement, which led, in turn, to the Board’s decision to terminate the complainant’s employment. The union was found to be in violation of its human rights obligation.

Secondly, a union may be liable for failure to accommodate the religious beliefs of an employee notwithstanding that it did not participate in the formulation or application of a discriminatory rule or practice.

The union’s obligation must be viewed from its need to represent the interests of its entire group. The union’s refusal to act in the interests on one member may be justified if such action may at the same moment be a “significant interference with the rights of others” and hence the test of undue hardship must be cognizant of this overall duty. The test may be often met by pointing to the prejudice which may be suffered by other union members.

A similar issue in which a remedy was sought against the union which had agreed with the employer to a buy-out term which adversely impacted disabled employees. ² A group of senior higher paid employees were offered a buy-out in exchange for monetary compensation and a lower paid position. Similarly situated disabled employees did not receive the same offer. The comparator group was seen as the group of employees of the same seniority. A prima facie case was shown.

The Court of Appeal agreed that the union failed in its duty of accommodation to the point of undue hardship. The union cannot “behave as if it were a bystander asserting that the employee’s plight is strictly a matter for the employer to solve”. ³ Here the union failed to see it had a joint responsibility.

In the same context, an employee suffering from a medical condition was transferred from one employer division to an alternate to assist his ailment. The collective agreement did not allow for his seniority to follow this transfer. ⁴ An ensuing lay-off raised this issue. The employer acceded to the request to recognize full seniority. The union did not. It was found to be in violation of the duty to accommodate by not agreeing to waive the collective agreement.

This secondary branch of union liability was considered again in a case in which the employer did not consent to the employee’s request for the position of Team Leader, which had been denied due to a medical disability.⁵

The union’s duty arises only where the employer has agreed to the accommodation at which point the union must take action. The employer had denied the position due to a BFOR.

A union may be found to have violated a Code obligation should it fail to offer fair representation to a union member due to a prohibited ground of discrimination. This liability is distinct from liability as noted above. It is not simply a failure to act but such a failure due to a code violation. ⁶

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1. Central Okanagan School District v Renaud
2. United Food and Commercial Workers, Local 401 v Alberta Human Rights and Citizenship Commission Alberta Court of Appeal
3. Renaud supra
4. Bubb-Clarke v TTC (Rosenberg)
5. Human Rights Tribunal decision of Gungor v Canadian Auto Workers Local 88 ( Hart ).
6. Traversy v Mississauga Professional Firefighters ( Liang); Gungor v Canadian Auto Workers Local 88 ( Hart )