Employment & Labour

Different challenges arise for those fired in union, non-union workplaces

By Tony Poland, Associate Editor

Defending a terminated employee comes with different challenges when dealing with union and non-union workplaces, Vaughan labour and employment lawyer Arthur Zeilikman tells AdvocateDaily.com.

Zeilikman, principal of Zeilikman Law, says both workplaces offer much different protections, and workers need to be aware of their rights when facing dismissal.

“A union would give you benefits that you would not otherwise be able to get as an individual negotiating an employment agreement,” he says. “But at the same time, becoming a member of a bargaining unit could take away your independence and can remove your ability to pursue your own case.“

When a non-union worker is fired, they can sue for wrongful termination, Zeilikman says.

“Ultimately, if you don’t end up settling the case, you move forward, and you go to trial,” he says. “And if the judge decides that the dismissal was wrongful then you'll be paid damages.”

The advantage to the non-union worker is that they are free to hire their own lawyer and "would have more control over how the litigation unfolds,” says Zeilikman.

However, if a judge finds in favour of the employer, “you're on the hook” for the employer’s court costs along with your own, he says.

When it comes to the ability to retain your job after termination, Zeilikman says the union worker is offered “more protection" because they can file a grievance and an arbitrator can overturn the dismissal if it was deemed unjustified.

“There's more protection in that sense because you're more likely to be able to preserve your actual employment,” he says. “When you're employed in a non-unionized workshop, you essentially don’t have the ability to be reinstated to your position — absent some circumstances that are bestowed by statute.”

Zeilikman says a union would not automatically file a grievance in the case of a termination.

“The union obviously has to consider everything, and in a balanced way. They can basically say, ‘Look, there is no way you can succeed here. You're just going to be wasting your time,’” he says. “As a matter of practice, they normally take it at least to the grievance process. It costs the union money, so they have to balance the interest of the collective with that of the individual.”

After a grievance is filed, the case can proceed to arbitration if there is no settlement between the union and the employer, Zeilikman explains.

The arbitrator can offer mediation to settle the matter or arbitration at that stage, he says.

“As a union employee, you can't actually sue your employer for being terminated,” Zeilikman says. “You have to agree with the arbitration because you're a member of a bargaining unit, and the union is a party to a collective agreement. So you don’t have that individual carriage of your dispute.”

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