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Can a unionized employee sue their employer?

Employer-employee relationships can sour in myriad ways — disputes over hours, salary, benefits, workload, and more — but when can you take them to court?

If you’re a unionized employee, the answer is almost never.

In 1995, a Supreme Court of Canada decision ruled disputes arising under a collective agreement can’t be brought to court, but can only be resolved through the methods outlined in that agreement. In 2013, an Ontario case also determined unionized employees without a collective agreement still cannot sue their employers.

So if you have a dispute with you employer, you need to use your union’s grievance process and typically a union representative to make your case (instead of a lawyer through the courts).

In some cases, a union may decide not to take your grievance to the employer. You typically can’t sue your union either, so your last option is to complain to the Canada Industrial Relations Board.

Your union does have a legal duty of fair representation to all its members. Simply refusing to take your case doesn’t mean the union is neglecting that duty, but you can file a complaint if your union’s action has been:

  • Arbitrary: meaning the union handled your case in a negligent or superficial way.
  • Discriminatory: discriminates against an employee on protected grounds, such as religion, race, or sex. It also means the union can’t treat different groups in different ways.
  • Acting in bad faith: with an improper purpose. This can include hostility towards a particular employee (maybe someone in the union has a personal grudge, for example) or acting in a dishonest or deceitful way.

In some rare cases, a unionized employee has successfully sued their employer, but it has been for issues not covered in the collective agreement.

So if you have a grievance with your employer, contact your union and consult your collective agreement to determine if your dispute is covered. Your union can provide you with information about how to proceed with any dispute.

Read more:

What is the duty of fair representation? http://www.cirb-ccri.gc.ca/eic/site/047.nsf/eng/00109.html