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The Supreme Court of Canada will hear an appeal on a Manitoba court case that could have implications for employers dealing with a human rights issue in a unionized workforce.

The resulting decision could settle whether labour arbitrators or human rights tribunals have jurisdiction over human rights issues in unionized workforces in certain provinces.

The case concerns a health-care worker for the Northern Regional Health Authority, who was terminated after she was found to be intoxicated at work. The NRHA and the employee’s union entered into a settlement that allowed her to return to work if she followed certain conditions, including abstinence from alcohol. However, she was found intoxicated on the job for a second time and was terminated again. The union didn’t file a grievance, but the employee filed a complaint with the Manitoba Human Rights Commission alleging discrimination on the basis of a disability.

Read: B.C. tribunal finds reduced benefits for older workers not age discrimination

The NRHA argued the complaint was within the purview of a labour arbitrator and, as such, the tribunal had no jurisdiction over the case. The tribunal’s chief adjudicator dismissed the objection on the grounds that the nature of the dispute was an alleged violation of the employee’s human rights and ultimately ruled the health authority had acted discriminatorily.

Upon judicial review of the decision, the judge ruled in the health authority’s favour, saying the nature of the dispute was whether there was just cause to terminate the employee, which would bring it under a labour arbitrator’s purview. However, the Manitoba Court of Appeal — ruling on an appeal from the provincial human rights tribunal — disagreed. The court said the reviewing judge had erred when overturning the adjudicator’s decision, as the dispute centred on accommodating a disability.

According to Sarah Iaconis, an associate at Hicks Morley Hamilton Stewart Storie LLP, the impact of the Supreme Court decision will not be as significant in some provinces. In Ontario, for example, labour arbitrators and the human rights tribunal have concurrent jurisdiction over human rights issues.

Read: ‘Inherently impossible’ to accommodate employee unable to work, finds Ontario court

“It’s going to ultimately come down to the legislation in each province,” she says. “Where the law is not as settled, such as provinces where human rights schemes are commission-based it could have an impact on whether disputes can be addressed in a human rights forum where the employee is unionized and the nature of the dispute arises directly from the employment relationship.”

However, adds Iaconis, anything the Supreme Court says may affect how these issues are litigated across the country.

Depending on how the court rules, provinces that don’t have settled concurrent jurisdiction could end up seeing labour arbitrators have exclusive jurisdiction if the nature of the dispute rises out of the collective agreement or the employment relationship, she speculated. “That would be something to keep an eye out for.”

Iaconis says the case itself is very fact specific. “While we are seeing that this could have an impact on how human rights issues are litigated in a unionized context, it is so important to remember that this case does come down to a lot of the specific facts. The impact of the [Supreme Court] decision might turn on the fact specifics of this case.”

Read: How to handle a workplace accommodation

Copyright © 2020 Transcontinental Media G.P. Originally published on benefitscanada.com

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