Redress Risk Management (post until May 31/19)
Employment & Labour

Fired and your union won’t help? Options to consider

By Nicole Simes

If you are a unionized employee who has been fired, you may be desperately searching for legal advice on how to proceed. Unlike non-unionized employees who can bring their employers to court, employees with union representation lose that right. Because of this, there are instances in which you may benefit from having private legal counsel.

Your first step will be to find the collective agreement that you and your employer agreed to with your union. Like employment contracts, collective agreements typically outline your conditions of employment, such as hours, wages, and overtime. This collective agreement will also outline the process that you, as a union member, must use if your employer does not follow the agreement. If you have opted out of membership in the union, you are still bound by the collective agreement.

Some rights never go away, regardless of whether or not you are unionized. You have the right to refuse unsafe work, for example, and you are entitled to act on your rights without being punished by your employer or union. If your employer breaks the collective agreement, or if you have been fired and you believe you have a legal case against your employer, you must follow the process outlined in your collective agreement.  

Your union is bound to a duty of fair representation, which means the decisions they make about representing you cannot be arbitrary, discriminatory, or made in bad faith.  They are obligated to do three things:

  • Listen to your complaint and discuss it with you;
  • Consider what you want; and
  • Make a fair and honest decision about what action, if any, to take.

However, your union is not obligated to do what you want. They are not obligated to pursue each case until the final step of the grievance procedure or even grieve your case. Technically, under the duty of fair representation, they are not even required to do a particularly good job at representing you. This leads many members to feel abandoned by their union: if they are not helping you after you’ve been fired, you are certainly not alone.

In most instances, you cannot simply hire your own lawyer and take your employer to court; your lawyer will likely not have jurisdiction and will not be recognized by the courts. However, under certain circumstances such as the ones listed below, you may be able to pursue legal counsel outside of your union.

Human rights complaints

You may be able to start a legal claim without your union if your complaint rests on a human rights violation. In that instance, you may be able to file a human rights application rather than use the process outlined in your collective agreement.

If you believe you were fired or unjustly treated by your employer because of your race, ancestry, place of origin, colour, ethnic origin, citizenship, religious beliefs, sexual orientation, gender identity or expression, age, marital status, family status or disability including addiction, or a conviction for which a pardon has been granted or a record suspended, you may have grounds to file a human rights complaint.  

Your complaint will need to be valid, it must be filed within 12 months of the incident, and you will need to follow a separate set of protocols.  

And so…

If you have been unfairly treated at work or fired and your union is not giving you enough information or has directly said it won’t represent you, seeing a lawyer will be beneficial to represent you and help navigate through the process.

Independent legal counsel can help you to most effectively work with your union so that they represent you actively, promptly, and well. Often, the best approach with unions is to be proactive. If you are aware of your rights and the obligations of the employer and union, you can use this information as a tool to advocate for yourself. If you have a human rights claim, you can bypass the union and seek a remedy without them.

MacLeod Law Firm regularly advises unionized employees on their rights and brings human rights claims on their behalf. We are willing to help individuals struggling with unions, and are able to help when the law permits. If your union is failing you, reach out to us. We can offer honest, open, advice about how to proceed and best benefit from your specific circumstances.

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