Labour Arbitrator Has Exclusive Jurisdiction Even Over Human Rights Complaints
A recent decision of the Supreme Court of Canada found a human rights adjudicator did not have jurisdiction to decide the workplace discrimination complaint of a unionized healthcare aide. Rather, that jurisdiction rested solely with the labour arbitrator appointed under the collective agreement and empowered by provincial legislation, unless otherwise provided in other legislation.
Ms. Horrocks worked as a unionized healthcare aide in Flin Flon, Manitoba. Her collective agreement prohibited discrimination based on “physical or mental disability.” However, these grounds were also protected under the Human Rights Code.
Ms. Horrocks suffered from alcohol dependence. Her employer conceded that this was a “disability” as defined under both the collective agreement and Code – as such, she could not be discriminated against on that ground. Her alcohol dependency, however, found its way into the workplace. Ms. Horrocks was caught drinking on the job and was suspended without pay pending an investigation. Her employer offered her a return to work on the condition she sign an agreement demanding total abstinence from alcohol consumption.
Ms. Horrocks refused to sign the agreement, claiming that it discriminated against her due to her disability (i.e., alcohol dependence). Her refusal to sign led to her termination, which the Union grieved. The employer subsequently permitted her to return on conditions that included abstinence, counselling and random testing. Not long after, Ms. Horrocks was found to be intoxicated outside the workplace and was terminated.
Both the collective agreement and Code offered protection to Ms. Horrocks. However, rather than filing another grievance with her employer, Ms. Horrocks brought a complaint under the Code to the Manitoba Human Rights Commission.
Who Has Jurisdiction?
At issue was whether or not Ms. Horrocks could pursue such a complaint outside of labour arbitration. Could her complaint be heard by a human rights adjudicator, or must it be heard by a labour arbitrator? According to the employer, the human rights adjudicator did not have jurisdiction to hear the complaint because the essential character of the dispute underlying the discrimination complaint was within the exclusive jurisdiction of a labour arbitrator under the collective agreement. The human rights adjudicator disagreed, arguing that the dispute was an alleged human rights violation.
In considering this issue, the majority of the Supreme Court held that the human rights adjudicator did not have jurisdiction to hear this complaint. Instead, the majority held that a labour arbitrator possesses exclusive jurisdiction where labour legislation provides for the settling of disputes under a collective agreement, unless another law says otherwise. That jurisdiction must be expressly displaced by other legislation. In this case, no other legislation, not even the Manitoba Human Rights Code, displaced that jurisdiction. Consequently, jurisdiction remained exclusively with the labour arbitrator.
Regarding the “paramount status” of human rights legislation, the majority believed that the inclusion of a mandatory dispute resolution clause in labour relations legislation operated as an indication of the explicit legislative intent to oust the operation of human rights legislation.
This decision has been met with both praise and concern. On the one hand, the decision serves to clarify the jurisdictional boundaries between labour arbitrators and human rights tribunals. It can avoid multiplicity of proceedings and the subsequent likelihood of conflicting outcomes. It appears to be a win for judicial economy.
On the other hand, the decision places a great burden on unions who must now shoulder the human rights complaints of their members. Unions must decide which human rights complaints are worth pursuing and which are not. Do we want unions to be the ones making such decisions? Are unions qualified to decide whose rights deserve protection and whose do not? Arguably, these decisions are better made elsewhere.