Category:Labour Law

Koroll v. Automodular, 2011 HRTO 774 (CanLII)

Failure to Pursue Applicant’s Grievance

[71] The applicant argues that the union discriminated against him on the basis of creed by not pursuing his October 24, 2006 grievance to arbitration; and/or by not pursuing it as vigorously as it pursued other grievances alleging that the applicant had been unjustly disciplined by the employer.

[72] I cannot agree with the applicant that the union has a legal duty under the Code to pursue any and all human rights grievances with more vigour than other kinds of grievances or to take them to arbitration, regardless of their merit. In order to succeed in his claim that the union’s failure to pursue his grievance constituted discrimination under the Code, the applicant would have to establish that the union’s decision in that regard was based on his creed or some other discriminatory factor. As the Tribunal stated in Traversy v. Mississauga Professional Firefighters Association, 2009 HRTO 996 (CanLII) at para. 33:

"(…) a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700 (CanLII). There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors. (See also Arias v Centre for Spanish Speaking Peoples, 2009 HRTO 1025 (CanLII) at para. 16-17)"