Labour Arbitration Preferred Over Human Rights Adjudication

Previously printed in the LexisNexis Labour Notes Newsletter.

A recent decision out of Manitoba, Northern Regional Health Authority v. Manitoba (Human Rights Commission), 2016 MBQB 89, examines the overlapping jurisdiction between labour arbitration boards and human rights tribunals with respect to complaints of prohibited discrimination in employment.

Linda Horrocks worked as a health care aid in a personal care home for the Northern Regional Health Authority (the “Employer”). Her employment was governed by a collective agreement between the Employer and the Canadian Union of Public Employees, Local 8600 (the “Union”).  Horrocks struggled with an alcohol addiction.  As a result of a grievance settlement arising out of an incident of intoxication at work, Horrocks, the Employer and the Union signed a memorandum of agreement whereby the employee agreed to abstain from consuming alcohol.

Shortly after entering into the agreement, the Employer was informed that Horrocks was observed to be visibly intoxicated outside the workplace and, on another occasion, was suspected to be intoxicated during a telephone call. Horrocks denied drinking.  She was dismissed from employment.  Neither Horrocks nor the Union grieved the dismissal.  Instead, approximately six months later, Horrocks filed a complaint of discrimination with the Manitoba Human Rights Commission.  She alleged that she had been subjected to discrimination in employment on the basis of disability and, specifically, that she was dismissed because of her alcohol addiction.

The adjudicator determined that she had jurisdiction to hear and decide the complaint under The Human Rights Code, C.C.S.M. c. H175 (the “Code”).  She then held that the complainant had a disability related to alcohol addiction within the meaning of the Code, she required accommodation in the workplace on the basis of that disability, and she was treated adversely by the Employer and her disability was a factor in that treatment.  Finally, the adjudicator concluded that the Employer failed to meet the onus of showing that its actions were justified; it could not demonstrate that it had made reasonable efforts to accommodate the complainant to the point of undue hardship and/or that the conditions it imposed were bona fide occupational requirements.

The Employer applied for judicial review of the adjudicator’s decision, arguing, in part, that she erred in law when she accepted jurisdiction over the complaint. The essential nature of the dispute, the Employer said, was within the exclusive jurisdiction of a labour arbitrator in accordance with the terms of the collective agreement and The Labour Relations Act, C.C.S.M. c. L10 (the “Act”).

The Court allowed the appeal. It determined the issue of jurisdiction between labour arbitration and human rights adjudication should be assessed on a standard of correctness.  The Court reviewed several Supreme Court of Canada decisions that examine the overlapping jurisdiction between administrative tribunals, including Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39 (“Morin”).  Following those decisions, the Court held that an adjudicative body must examine the essential character of the dispute in the factual context.  The focus must not be the legal characterization of the dispute.

In this case, the essential character of the dispute was whether there was just cause to terminate the employment of a unionized employee with an alleged addiction problem, and whether an alleged breach of the memorandum of agreement between the employee, the Employer and the Union constituted just cause for termination of employment. The Court held that the Tribunal erred by focusing on the legal characterization of the dispute, which was whether there was a violation of the complainant’s human rights.

The Court held further that the legislative provisions in both the Act and the Code support the exclusive jurisdiction of labour arbitration over the dismissal of a unionized employee.  It is well accepted that arbitrators have the authority to interpret and apply human rights legislation.  The Court noted in this regard the Supreme Court of Canada’s decision in Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324, 2003 SCC 42.

The Court distinguished the facts of the case from those in Morin, where the essential nature of the dispute was whether the collective agreement itself was discriminatory.  Furthermore, in Morin, the union and employees were adverse in interest and a labour arbitrator would not have had jurisdiction over all the parties to the dispute.

There was no evidence as to why the Union or Horrocks did not file a grievance regarding her dismissal, and no evidence that the Union’s interests were opposed to that of Horrocks. The Court concluded that the issues in the case were ones that are routinely and appropriately decided by labour arbitrators.  The Court set aside the adjudicator’s decision and held the dispute had to be determined in  accordance with the grievance procedure in the collective agreement.

The Court’s findings in this case accord with the prevailing view in the jurisprudence. The fact that the Union did not choose to file a grievance on the issue is irrelevant. When the issue in dispute arises out of the collective agreement, an employee cannot do an end run around the grievance procedure by alleging a human rights violation.