Unionized Employees — Ontario Employment Law
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About Unionized Employees
Being a unionized employee in Ontario fundamentally alters how your workplace rights are structured and enforced. Unlike non-union workers who negotiate individual employment contracts and can sue their employers in civil court, unionized workers are part of a bargaining unit. Under the Ontario Labour Relations Act, 1995, the union acts as the exclusive bargaining agent for all workers in that unit. This means that the terms of your employment—from wages and seniority to discipline and termination—are governed by a collective agreement reached between the union and the employer.
One of the most consequential legal differences for unionized employees is dispute resolution. In Ontario, courts consistently rule that they do not have jurisdiction to hear lawsuits from unionized workers concerning workplace matters. This legal concept requires that disputes arising out of the interpretation, application, administration, or violation of a collective agreement must be dealt with through the grievance and labour arbitration process. Consequently, if a unionized employee is terminated, experiences workplace harassment, or wishes to challenge a mandatory company policy, they generally cannot bypass their union to file a wrongful dismissal claim or seek an injunction in civil court.
While the Employment Standards Act, 2000 (ESA), the Occupational Health and Safety Act (OHSA), and the Ontario Human Rights Code still protect unionized workers, these statutory rights are typically enforced by the union through grievance arbitration rather than standalone legal actions. An arbitrator has the authority to award damages, enforce human rights, and even order reinstatement—a remedy scarcely available to non-unionized employees.
Navigating a workplace issue as a union member requires relying heavily on your union representation. However, the union owes you a duty of fair representation, meaning they cannot act in a manner that is arbitrary, discriminatory, or in bad faith when handling your case. Because the interplay between individual rights, collective agreements, and labour boards can be complex, evaluating your specific situation alongside professional legal guidance is often beneficial, especially if a conflict arises regarding your union's representation.
Frequently Asked Questions
Can I sue my employer for wrongful dismissal if I am unionized?
Generally, no. Ontario courts do not have jurisdiction to hear wrongful dismissal claims from unionized employees because the collective agreement governs the relationship. You must challenge your termination through your union's grievance and arbitration process.
What happens if my union refuses to file or continue my grievance?
Your union has the right to decide whether to advance a grievance, but it must uphold its duty of fair representation. If you believe the union acted in bad faith, discriminatorily, or arbitrarily in dropping your case, you may file a complaint with the Ontario Labour Relations Board, though this is a very high threshold to meet.
Is there a time limit for unionized employees to dispute a workplace issue?
Yes. Collective agreements typically contain very strict, short time limits for initiating a grievance—sometimes as brief as a few days following an incident. Failing to file within this window can permanently bar your claim.
Can I hire my own lawyer to represent me at a labour arbitration?
Because the union is the legal owner of the grievance, it generally supplies the legal representation at arbitration. You usually cannot substitute their lawyer with your own for the hearing, but you can retain independent counsel for background advice regarding your rights.
Are unionized employees entitled to severance pay under the Employment Standards Act?
Yes, unionized employees still have the minimum protections of the ESA. However, your collective agreement will outline the specifics of your entitlements upon termination, which are often greater than minimum statutory requirements, and these amounts are enforced through the union.
Can a unionized employee complain to the human rights tribunal?
While labour arbitrators have the authority to apply the Ontario Human Rights Code, workers technically retain the right to file an application with the Human Rights Tribunal of Ontario (HRTO). However, the HRTO frequently defers these applications if the matter is already being addressed through a union grievance.
Common Scenarios
- A factory worker is terminated for alleged safety violations. Rather than suing the company for notice pay in court, the worker contacts their union steward, who files a grievance seeking full reinstatement and compensation for lost wages.
- A municipality implements a new mandatory workplace health policy, and several unionized public servants try to take the employer to civil court for an injunction. The judge dismisses the lawsuit, stating the court lacks standing and the dispute belongs to a labour arbitrator.
- A warehouse employee believes they were disciplined unfairly due to their race, but the union decides the case lacks merit and abandons the grievance. The employee subsequently considers filing a duty of fair representation complaint at the labour board against the union.
What You Should Know
- Always obtain and review the most recent copy of your collective agreement, paying special attention to the deadlines for reporting an incident or filing a grievance.
- If you face discipline or dismissal, immediately notify your union steward or local representative; delays can result in missed procedural timelines that nullify your rights.
- Keep personal, detailed written records of all workplace incidents, management meetings, and email correspondence with your union representatives to establish a clear timeline.
- If you feel your union is ignoring a serious human rights violation or acting in bad faith, consulting an employment lawyer independently can clarify whether you have grounds for a labour board complaint.
Featured Cases
B. v. University Health Network
2021 ONSC 7139 (CanLII) · 2021-10-29Unionized Employees: Labour Arbitration vs Civil Court Jurisdiction
This is an interlocutory proceeding concerning the jurisdiction of civil courts versus labour arbitration for unionized employees challenging a mandatory vaccination policy. The court applied Supreme Court of Canada principles from Weber and Horrocks to determine that unionized plaintiffs lacked standing to seek relief in civil court due to the exclusive jurisdiction of the labour arbitrator. For non-unionized plaintiffs, the court declined to continue the interim injunction, finding no evidence of irreparable harm under the RJR-MacDonald test.
C. v Quality Meat Packers
2017 ONSC 1199 (CanLII) · 2017-03-17This case addresses whether the Ontario Superior Court of Justice has jurisdiction to hear wrongful dismissal claims for unionized employees governed by collective agreements, applying the Supreme Court of Canada’s test in Weber v. Ontario Hydro. It also examines procedural issues regarding representative actions, specifically whether actions brought by plaintiffs are time-barred due to failure to obtain representation orders within the limitation period and the application of the balance of convenience test for non-unionized employees.
S. v Crawford Roofing
2015 ONSC 4201 (CanLII) · 2015-06-30This is an interlocutory proceeding determining whether the Superior Court of Justice has jurisdiction to hear a wrongful dismissal claim by a unionized employee or if the matter falls under the exclusive jurisdiction of labour arbitration. The plaintiff argued he was excluded from the bargaining unit, while the defendant contended the dispute arose from the interpretation of the collective agreement.
B. and L. v. Navistar
2013 ONSC 2778 (CanLII) · 2013-05-09Jurisdiction: Unionized Employees vs. Labour Board
This is a jurisdictional motion concerning whether unionized employees can pursue wrongful and constructive dismissal claims in court or if such claims are exclusively within the jurisdiction of the Ontario Labour Relations Board. The court determined that the Labour Relations Act displaces common law remedies and individual employment contracts in the context of an ongoing collective bargaining relationship, thereby granting exclusive jurisdiction to the labour tribunal.
K. v. Ontario (Management Board of Cabinet)
2011 ONSC 3239 (CanLII) · 2011-05-26Jurisdiction: Unionized Employee Claims Dismissed
This is a jurisdictional ruling concerning whether the Superior Court of Justice has authority to hear discrimination, harassment, and wrongful dismissal claims by unionized employees when those disputes are governed by a collective agreement. Applying the Weber v. Ontario Hydro framework, the court determined that such workplace disputes fall within the exclusive jurisdiction of the Grievance Settlement Board. Consequently, the claims were dismissed for lack of jurisdiction.
P. v. Hudson's Bay Co.
1998 CanLII 6874 (ON CA) · 1998-11-19Labour Arbitration Jurisdiction: Malicious Prosecution Claim
This is an appeal to the Court of Appeal from a motion judge's decision regarding a unionized employee's right to sue her employer for malicious prosecution. The employee sued the employer for damages after criminal fraud charges initiated by the employer were withdrawn. The motion judge dismissed the action, ruling that the dispute arose from the employment relationship and must be arbitrated under the collective agreement. The Court of Appeal allowed the appeal, finding that the employer's use of the criminal process fell outside the scope of the collective agreement. The employer's motion was dismissed, allowing the employee's civil action to proceed in court.
Re The Queen and Bell Canada
1986 CanLII 2578 (ON CA) · 1986-01-28Holiday Pay During Legal Strike: Continuous Operations
This is a statutory interpretation case concerning whether employees in continuous operations are entitled to holiday pay while participating in a legal strike. The Court of Appeal for Ontario determined that the employer was not required to individually contact employees to determine their availability for work during the strike, as the strike notice and union membership served as sufficient evidence of unavailability under the Canada Labour Code.