Do I Have to Complain to the Union?

Employees still have human rights, occupational health and safety protections and general rights under civil law. This means 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.

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.

The same behaviour can be discrimination under both human rights laws and a breach of a collective agreement. In these cases, the matter may go to arbitration and also be the subject of a human rights complaint. However, there are rules in place to avoid the re-hearing of the same issue.

The Saskatchewan Human Rights Commission can deal with a human rights complaint even if the discrimination happened in a unionized workplace. This does not mean they are the only body that can deal with it. If the union brings a grievance, an arbitrator can also consider whether there has been a violation of The Saskatchewan Human Rights Code.

However, the Commission can dismiss a complaint made under the Code if it has been appropriately dealt with by a grievance under a collective agreement. They can also defer a complaint until after arbitration if settling a complaint by arbitration is more appropriate based on the type of complaint and the remedies available.

If the complaint has already been taken to arbitration, the Commission needs to consider whether the human rights complaint is substantially similar and whether natural justice was provided to the parties. A claim is substantially similar if the issues are the same, even if the procedure is different. One way of looking at this is to consider whether a human rights complaint would have been made if the person had been successful in their grievance. If no human rights complaint would have been made if the grievance had been successful, this can mean it is the same issue.

If there has been a violation of occupational health and safety laws, employees do not have to go through the union. This is the case even if the matter is dealt with under the collective agreement. Employees always have the right to make a complaint under these laws. Occupational Health Officers can always investigate and take action.

However, if you are on strike, you cannot make an occupational health and safety complaint about something that happened on the picket line. To make these types of claims, you must be working for your employer. Employees who are on strike are not working for their employer and are not paid by their employer. In these cases, employees usually receive strike pay from their union.

An employee in a unionized workplace can sue someone, including their employer, but not for anything that is related to the collective agreement. For example, they cannot sue for wrongful dismissal. They also cannot not sue for something like not providing a safe workplace if the collective agreement explicitly or implicitly imposes this obligation on the employer.

In all workplaces, employees cannot sue for an injury that is covered by Workers’ Compensation.

If a crime has been committed, it can always be reported to the police. The police can investigate and lay charges if they believe a crime has been committed.