Complaints about a breach of the collective agreement must go through the union, but employees in unionized workplaces also have rights under other laws.
Because employees still have human rights, occupational health and safety protections and general rights under civil law, there are other ways of dealing with a complaint about sexual harassment outside of the union process. Employees in unionized workplaces are also protected by the Criminal Code if the harassment is a crime. Whether a complaint must be dealt with through the union depends on whether it is a complaint that arises from the collective agreement.
The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement. ~ Weber v. Ontario Hydro (Supreme Court of Canada)
Whether an incident of workplace sexual harassment is a breach of the collective agreement can depend on the terms of the collective agreement. Some collective agreements specifically address sexual harassment. Even if the collective agreement does not specifically deal with sexual harassment, it can still be a breach of the collective agreement. Terms that prohibit discrimination and terms that require employers to protect the health and safety of employees can be considered to cover sexual harassment. Failure to follow a sexual harassment policy can also be considered a breach of the collective agreement.
Harassment and abusive, vexatious conduct in the workplace are generally inconsistent with the stated purposes of the agreement and specifically inconsistent with the employer’s obligation to provide for the health and safety of its employees. ~ Oliver v. Severance et al. (Province of Prince Edward Island- Supreme Court -Appeals Division)
Employees in unionized workplaces can make a human rights complaint if they have been discriminated against on a protected ground, such as sex. If the matter goes to arbitration, whether there has been a violation of human rights can also be considered by the arbitrator.
There are a number of ways to deal with workplace sexual harassment and, in certain situations, unionized employees can chose to use other avenues rather than going through their union.
This site provides general information about workplace sexual harassment only. It is not a substitute for receiving legal advice about your situation. Apply now to receive 4 hours of free legal advice.