Can I Form My Own Union? Posted onFebruary 10, 2020September 30, 2020/ Devry Smith Frank LLP Any group of eligible workers in Ontario can form a union. If 40% of the membership signs union membership cards, the Ontario Labour Relations Board will hold a vote to determine whether the union should be certified. A secret ballot is then held. 50% or more votes in favour will cause the union to be certified. The Collective Agreement The terms of the employment relationship between the workers and the company are then determined by the collective agreement. There is no individual right to bargain for wage increases or other terms of employment. This agreement forms the basis for all employment rights and entitlements. Rights on Termination The collective agreement determines all rights and remedies on termination for cause or without cause. If there is termination or other forms of discipline imposed, the worker, by union representation, has the right to grieve the decision. With union support, such a case may proceed to arbitration. At that stage the decision maker has the power to order back pay, reinstatement or any other similar remedy. Reinstatement in this process is generally considered the default remedy when there is no cause for termination found. Just as a common law judge may order additional damages for unfair conduct, the arbitrator may also make such incremental awards for “aggravated” damages. No Right to Sue The union members have no right to sue in the civil courts for an employment dispute. All such issues must go through the grievance process. This is the same for “wrongful dismissal” claims. In the civil courts without union representation, an employee fired without cause can claim damages for lost income in the period of “reasonable notice”. This claim is not allowed for union members. Termination without cause will likely follow a seniority system. The person to be terminated will be allowed only the severance sums set out in the collective agreement and no more. This payment must at least meet the statutory minimum. Disputes with Union Management If there is an issue between the company and the employee, such as an alleged termination for cause, the legal parties in the case are the union and the company. The individual person is a not a party, as they are represented by the union, which has the legal authority to make all decisions in the case. For example, the union may decide the employer’s offer of reinstatement with no back pay is a fair offer to be accepted. The employee may disagree. The union must consult and discuss the issues with the employee but ultimately makes the final call on the offer. The same issue often arises on a termination case which may possible may be headed to arbitration. The union may decide, for whatever reason, not to support the case to proceed to arbitration. It again will certainly consult with and discuss the issues with the employee. Again, however, at the end of the day, it is the union’s final decision to make. Can the Decisions of a Union be Reviewed? The union has an obligation to allow for “fair representation” to its members. There is a potential remedy available to a disgruntled employee who has disagreed with the union’s advocacy. This is a complaint to the Ontario Labour Relations Board of “unfair representation”. These cases are notoriously difficult for the employee to win. Essentially, the worker must show that the union failed to even consider the merits of the case. If the union has consulted outside legal counsel and reviewed the case, there is virtually no chance of success for the employee’s case. Unions do offer certain protections to employees which are not available without their existence. There is a definitely good news and not so good news. Before you sign the union card and before you vote, you should understand both sides. It is always recommended to seek advice from an experienced employment lawyer before taking action that may result in a claim for damages. Contact Elyse Mallins of Devry Smith Frank LLP for advice for both employees and employers on legal workplace issues. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” Related Posts Posted onMay 26, 2021May 26, 2021/ Marty Rabinovitch Temporary Layoffs during COVID-19 Can Amount to Constructive Dismissal under Common Law – Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076 (CanLII) In earlier blog posts, which can be found here and here, we wrote about the implications of Regulation 228/20 (the “Regulation”), enacted pursuant to the Employment Standards Act, 2000(the “ESA”). The Regulation states that non-unionized employees who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency [...] Read more Posted onFebruary 24, 2021February 24, 2021/ Marty Rabinovitch Termination Provisions of Employee Stock Awards Agreement Found Unenforceable – Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII) In 2018, an employee was terminated by his employer without cause following a tenure of nearly 23 years. In addition to his base salary, the employee’s compensation included performance-based cash bonuses and stock awards, which collectively accounted for approximately 30% of his income. The stock awards in question were awarded to the employee during his [...] Read more Posted onSeptember 15, 2020September 29, 2020/ Marty Rabinovitch Temporary Layoffs During COVID-19 – “COVID-19 period” extended until January 2, 2021 On May 29, 2020, Ontario passed Regulation 228/20 under the Employment Standards Act (“ESA”). As a result of this new regulation, non-unionized workers who had their hours reduced or eliminated due to COVID-19 are deemed retroactively to be on Infectious Disease Emergency Leave, which is an unpaid, job-protected leave under the ESA. The regulation applies retroactively from March 1, 2020, and initially [...] Read more Posted onAugust 26, 2020September 2, 2021/ Marty Rabinovitch and Amar Gill Enforceability of Termination Clauses and the Latest Blow to Employers – Waksdale v. Swegon North America Inc. (2020 ONCA 391) Termination clauses are often relied upon by employers to define an employee’s severance entitlement when an employee is terminated without cause. These clauses are often drafted to limit an employee’s entitlement to their statutory minimums, which are significantly less than the employee’s entitlement at common law. If an employment contract contains no termination clause or [...] Read more Posted onJuly 20, 2020November 16, 2020/ Marty Rabinovitch Employers Must Discharge Their Onus to Prove Failure to Mitigate A recent 2020 decision of the British Columbia Supreme Court, Virk v. Satnam Education Society of B.C., was a reminder that in wrongful dismissal litigation, the employer has the burden to prove an employee’s failure to mitigate. When an employee has been wrongfully dismissed, they are obligated to act reasonably by taking steps to replace their [...] Read more
