Sunday, June 3, 2018

When Can Unionized Employees Sue Their Employers ?

   The general principle in employment and labour law is that unionized employees can not sue their employers for any claims which arise from the interpretation and application of the collective agreement between their bargaining agent and employer.  This point was made clear by the Supreme Court of Canada in Weber  v.  Ontario [1995] 2 S.C.R. 929.

Employer Terminates 
Based on Criminal Act:

   In Piko   v.  Hudsons Bay Company 41 O.R. (3d) 729 the Court of Appeal for
Ontario carved out a significant exception to the general principle prohibiting
unionized employees from suing their employers for civil claims connected to
their employment and dismissal.  In that case the employee was dismissed for
theft and was criminally prosecuted for such.  The employee asserted that the
employer initiated the criminal prosecution.  The charge of theft against the
unionized employee was resolved in her favour and she sued the Hudson's Bay
Company for malicious prosecution.

   Instinctively,  the employer raised the general prohibition asserting that employee could not sue them on account of the collective agreement.  They brought a motion to strike the claim and dismiss the action. The motions judge ruled that the court had no jurisdiction over the subject-matter of the claim as the the essential character of the dispute arose from the employee's employment relationship with the defendant which was covered by a collective agreement.

   J.A. Laskin writing for the majority in Piko held that by taking the dispute out of the collective bargaining forum and bringing it into the criminal law realm the employer effectively stepped outside of the collective agreement and therefore the dispute was no longer one focusing on the interpretation and application of the collective agreement.

   The Court of Appeal for Ontario made it clear that a claim that the employer maliciously prosecuted an employee lay outside the scope of the collective agreement. The Court said:

"And the Bay's actions in instigating criminal proceedings are not directly related to the
dispute over whether Piko was unjustly dismissed.  The Bay's actions are neither a
prerequisite to nor a necessary consequence of its dismissal of Piko.  In short, the
collective agreement does not regulate the Bay's conduct in invoking the criminal
process, which is the conduct at the heart of the present dispute.  The dispute, therefore,
does not arise under the collective agreement."

Seek Legal Advice:

   Civil claims involving high-handed dismissals, malicious prosecution or dismissals contrary to public policy such as the Human Rights Code are not your average wrongful dismissal action.  It is prudent to seek out the advice of a lawyer with knowledge and experience in this area before agreeing to any settlement.

About the author:

   E.J. Guiste handles high-handed wrongful dismissal, malicious prosecution and breach of public policy statutes such as the Human Rights Code.  He represents client  in all facets of the process from providing opinions, investigations, representation at mediation, trials and appeals at all levels of court.


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