Grievance and Complaints Involving Human Rights

 

The PSAC’s human rights policy statement and Constitution clearly outlines that we do not condone discrimination and that we will be vigilant in challenging discrimination in our workplaces. 

Human rights are protected in law – through human rights legislation, labour legislation and health and safety legislation to some extent. Collective agreements also protect human rights.

Workplace rules, policies, contract language or practices may not appear discriminatory – but may still have a discriminatory impact on an individual or group of individuals. The Supreme Court, in its 1999 Meiorin decision, has set out the requirements for employers and service providers to build conceptions of equality into workplace standards.  This places a positive obligation on employers to design workplace standards and requirements so that they do not discriminate (i.e., the employer must take proactive action to ensure these standards and requirements are not discriminatory). 

Should a negotiated arrangement or a collective agreement provision have a discriminatory impact, unions have a joint responsibility with the employer to proactively eliminate that discrimination.However, even if the Unionwas not involved in negotiating or implementing a discriminatory provision, it must cooperate with the efforts of the employer to accommodate the worker.   A recent arbitration decision has also set out that unions need to be vigilant and ensure they provide thorough representation in human rights cases.

If a discriminatory act or practice occurs in the workplace, the grievance route is the route of preference for dealing with these human rights violations.   The Unionis entitled to and has a duty to ensure that discrimination is addressed.    

Stewards and Locals should not wait for human rights complaints and grievances to be filed before eradicating discrimination in their workplaces.  Many pro-active measures such as human rights training, work culture surveys, employment equity programs, anti-harassment training and measures to create inclusive workplaces can go a long way in ensuring that discriminatory practices do not occur.  Unfortunately workplace discrimination may occur even when the union is vigilant in ensuring that pro-active measures have been implemented. 

WHAT IS A HUMAN RIGHTS VIOLATION?

In simple terms, a discriminatory act or practice;

  • results in a denial of rights, e.g., a denial of employment, promotion, etc;

  • which occurs either in employment or in the provision of goods, services, facilities or accommodation;

  •  is based on or motivated by a prohibited ground for discrimination.

The manner in which discrimination occurs in the workplace may be subtle.   Stewards should remember that harassment based on a prohibited ground is a form of discrimination as is the refusal to accommodate a worker either related to their disability, family status, culture etc.

PROHIBITED GROUNDS

Prohibited grounds of discrimination are found in human rights legislation.  Anti-discrimination provisions in collective agreements also list prohibited grounds. 

The grounds currently listed in the Canadian Human Rights Act include:

·        race;

·        national or ethnic origin;

·        colour;

·        religion;

·        age;

·        sex (including pregnancy and childbirth);

·        sexual orientation;

·        marital status;

·        family status;

·        disability (including mental conditions, alcohol or drug dependency), and;

·        pardon for criminal conviction.

The Québec Charter of Rights and Freedoms also prohibits discrimination based on “social condition”. 

GRIEVANCES

Most if not all PSAC collective agreements contain an anti-discrimination article.  Here are a few examples of these: 

Table 1 (PA Group)

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

The Canadian Museum of Civilization

14.01 The Corporation and the Alliance agree that there shall be no discrimination or harassment exercised in the workplace with respect to an employee by reason of age, marital status, family status, race, creed, colour, national or ethnic origin, political or religious affiliation, sex, sexual orientation, mental or physical disability, membership or activity in the Union or conviction for which a pardon has been granted.

HUMAN RIGHTS COMPLAINT

If a member believes he/she has been discriminated against based on one or more of the prohibited grounds, a complaint can be filed with the applicable human rights commission.    As a matter of course, we would recommend that a complaint be filed with the appropriate human rights while filing the human rights grievance, in order to protect the time limits set out in human rights legislation.  Although arbitrators have the authority to interpret human rights legislation, a human rights complaint provides protection in the event of an error in the grievance process.  The human rights complaint will be put in abeyance until the grievance process is resolved.

Section 7 of the CHRA:

It is a discriminatory practice, directly or indirectly,

(a) to refuse to employ or continue to employ any individual, or

(b) in the course of employment, to differentiate adversely in relation to an employee,

on a prohibited ground of discrimination

Under the Canadian Human Rights Act (CHRA), a complaint can be filed with the Canadian Human Rights Commission (CHRC). The timeframes for filing a human rights complaint is one year from the alleged incident and/or circumstances which are believed to be discriminatory. The process for filing a complaint can be found on the CHRA web site

Section 5 of the OHRC:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

As of June 2008, a complaint under the Ontario Human Rights Code can be filed with the Human Rights Tribunal of Ontario.  

Section 16 of the QCHRF:

No one may practice discrimination in respect of the hiring, apprenticeship, duration of the probationary period, vocational training, promotion, transfer, displacement, laying-off, suspension, dismissal or conditions of employment of a person or in the establishment of categories or classes of employment.

Complaints under the Québec Charter of Human Rights and Freedoms can be filed to the Québec Commission des droits de la personne et des droits de la jeunesse.  The process for filing a complaint with this Tribunal

EMPLOYER POLICY 

Employers may have human rights related policies that set out the principles and processes which must be undertaken by the employer in order to meets its human rights obligations.  Employers are required, since the Bonnie Robichaud Supreme Court Decision, to have an anti-harassment policy.  Many employers have duty to accommodate policies.  These policies usually outline a complaint process for employees who feel the policy has not been respected.   It should be noted that cases of personal harassment which are not linked to a ground of discrimination, can be dealt with via the employer’s policy.

A WORD ABOUT THE FEDERAL PUBLIC SERVICE

Under the Public Service Labour Relations Act, (PSLRA) members can file grievances involving issues under the CHRA, except in relation to pay equity, and be awarded monetary relief as provided under the PSLRA (s. 208).  The CHRC is entitled to be notified of such grievances and can make submissions to an adjudicator.    

DEALING WITH A GRIEVANCE INVOLVING HUMAN RIGHTS

The person experiencing the discrimination may not articulate her or his experience as discrimination but as an unfair practice or experience. Stewards should assess whether the situation is related to a discriminatory practice.  

In addition, persons who belong to groups protected by human rights legislation may have had to deal with prior situations of exclusion or discrimination in other aspects of their lives.  A person experiencing discrimination in the workplace may require support from others, including union representatives, due to the emotional, physical and psychological impact of the discrimination. Stewards should be familiar with support mechanisms available to the person experience discrimination (i.e. EAP, counselling, advocacy groups, PSAC equity committees etc.)

GATHERING EVIDENCE

The key issue in analyzing a human rights complaint is the question of evidence.  It is important to have reasonable grounds for believing that the reason why an action was taken had to do with a prohibited ground. Stewards play an important role in gathering the evidence.  

Information or evidence will be required from the person experiencing the discrimination.  Information or evidence may also be required from witnesses and experts (i.e. medical experts). Each case will be unique and different evidence may be required but in essence, the evidence should show that: a) the person(s) who is experiencing the discrimination falls within the prohibited grounds; b) the discriminatory practice is linked to the prohibited ground (i.e. a racialized person is denied an employment opportunity due to her or his race) and c) the impact of the discriminatory practice (i.e. person had to take leave of absence due to the discriminatory practice).

OTHER USEFUL NOTES:

  • Retaliation against members who file human rights complaints or grievances is a violation of their rights.  The sad reality is that members who file human rights related complaints or grievances are often belittled or ostracized.  Stewards should be vigilant about challenging and recording these incidents on the case file and forward these details up the line.   This could support the union’s demand for punitive damages.   

  • It is a discriminatory practise to refuse to renew a temporary worker or to terminate their contract sooner because they have requested accommodation, are pregnant, have complained about racism, etc.In cases of harassment involving allegations against other members, stewards are to guide their interventions according to the PSAC Anti-Harassment Policy.