Sexual harassment in the workplace can and often does involve interactions between two employees, both members of the union. In this situation either or both parties could ask the union to make a grievance.
Collective agreements set out the rights and responsibilities employers and workers have to each other. Grievances must be based on an employer’s failure to live up to their end of the bargain. Grievances cannot be used to address issues between co-workers, or issues between workers and supervisors unless there was a breach of the collective agreement.
A worker who has experienced sexual harassment may want to make a grievance based on the employer’s failure to address the issue or not doing enough to address the issue. Even if the harasser was disciplined, a grievance might be made if the discipline was thought to be inadequate. On the other hand, the alleged harasser could grieve that harassment was even found to have occurred, or, if it did occur, that the discipline was too harsh.
The union continues to have the duty of fair representation even when both parties are in the same union. In these cases, depending on the situation and the resources of the union, the union could have a third party represent one of the parties.
Faced with competing grievances, the union can decide to go ahead with only one of them. This could be the grievance of a victim who is unsatisfied with the steps taken by the employer. It could be a grievance of a worker being disciplined for sexual harassment. It could also be the grievance of a victim of sexual harassment who has been disciplined for their actions in response to the harassment.
The union can also decide to proceed with both grievances. However, the union cannot argue that this alone means they have fulfilled their obligation to fairly represent both parties.
The union can also decide not to proceed with a grievance at all. For example, if they take the position that there was no breach of the collective agreement or that the employer’s response was appropriate.
These decisions must be made while still complying with the duty of fair representation. The union must investigate. They must consider the needs and interests of both employees, as well as the interests of the workplace as a whole and come to a conclusion based only on the relevant facts. They cannot act in bad faith or arbitrarily or discriminate against either employee when making this decision.
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The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).