The Divisional Court recently considered the proper parties to an application for judicial review of an arbitrator’s award dismissing a grievance involving the discharge of an employee.
In this case, the employee (grievor) brought the application for judicial review and the employer (who had been succesful at arbitration) brought a motion to quash the application on the basis that the employee lacked standing to bring the application.
The unanimous Divisional Court in Ali v. United Food and Commercial Workers Canada (Local 175), 2013 ONSC 6208 (CanLII) agree with the employer and quashed the application.
In a collective bargaining regime, the individual rights of employees are given up in favour of the collective. The Court put it as follows:
Collective bargaining means exactly what the words say. The employees give up their individual rights to deal with their employer; they act together, collectively. For its part, the employer knows that it only has to deal with one party, the union, which is the exclusive representative of all its employees, the collective.
The parties to the collective agreement are the employer and the union. In most cases, the union, not the individual employee/grievor, has carriage of the grievance. The Court observed that subject to three exceptions, “as a general rule, the employee is without the right to individual standing in the grievance and without standing to bring any judicial review which may arise as a result of the grievance.”
1. The collective agreement may expressly provide that the grievor has standing to pursue a grievance, that the grievor has carriage of the grievance or has a right to independent representation.
2. When the right of the employee to the procedural protections of natural justice has been breached. The Court made some interesting observations on the content of procedural fairness:
(a) The grievor was aware of the arbitration and was given notice of it.
(b) The grievor was in attendance at the arbitration;
(c) The grievor testified;
(d) Evidence was presented on behalf of the grievor by the union;
(e) Submissions were made in support of the position;
(f) A decision was rendered with detailed reasons provided.
3. Where the grievor was unfairly or inadequately represented by the union. The apprehension of inadequate representation had to be reasonable.
The applicant (grievor) alleged that there was a breach of #2 and #3 because he was unable “to absorb and understand portions of the evidence because English is not his first language”. He said he should have been provided with an interpreter and that the failure to do so resulted in many errors by the union.
These suggestions were contrary to the evidence. The union proposed to the employer that an interpreter be provided at the hearing. The employer indicated that it would object to that request. Union counsel researched the matter and concluded that the grievor was not entitled to an interpreter.
At no time during the hearing was it suggested that the grievor had not been adequately represented. He should have, if he had concerns.
As the Court commented on the Union’s duty of fair representation and quoted from Gilinsky v. Carrier  O.J. No. 4922:
If he wishes to complain that his union did not fairly represent him his proper course of action would have been an application before the Ontario Labour Relations Board. Section 74 of the Labour Relations Act provides.....
In the circumstances, the Court held that if the grievor had a complaint about the representation he received, that such a complaint out to be made to the Ontario Labour Relations Board under the Act.