Union Grievances and Discrimination Under the Human Rights Code

Can a unionized employee who received settlement money as a result of a union grievance also make an application under the Human Rights Code, alleging discrimination as a result of the same situation? Two recent cases of the Ontario Human Rights Tribunal have addressed this issue with opposite outcomes. In Ma v University of Toronto, an employee’s application was allowed to continue, whereas in Sikorski v Vaughan (City), the employee’s application was dismissed.

The tribunal reached these decisions after interpreting Section 45.1 of the Code, which states that: “The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.” It is well-settled law that settlements of grievances constitute proceedings. The outcome of each was decided primarily on the basis of whether the settlement was voluntary on the part of the employee.

In Ma v University of Toronto, the settlement was not held to be binding because the employee did not voluntarily agree to it. They did not sign the Memorandum of Settlement, and the settlement funds were deposited in the employee’s bank account without any necessary action on the part of the employee. The Tribunal found that there was no choice given to the applicant to accept or reject the payment and Memorandum of Settlement. The Tribunal also noted that it was unclear if the issues settled during the grievance were identical to those of the human rights application.

In Sikorski v Vaughan (City), the settlement was held to be binding, even though the applicant was not a signatory to the settlement, because while there was not explicit acceptance, there was held to be implicit acceptance. The employee was given a cheque for 28 weeks’ pay as part of the settlement and made an active choice to cash it, thus voluntarily and deliberately accepting the settlement. This was contrasted with the previous case on the basis that the employee in Ma v University of Toronto received the money through direct deposit and so the settlement money there was received in a passive manner.

Therefore, when structuring a settlement agreement resulting from a union grievance, one should be aware that the level of involvement of the employee in the settlement and acceptance of funds may be a very relevant factor in whether the employee is permitted to bring a similar human rights complaint afterwards.

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