An employee covered by a union agreement is typically barred
from bringing a claim to court. Instead, he or she is required to
use the collective agreement's grievance and arbitration
process, with union representation. The recent decision in Baker v. Navistar Canada Inc. ruled that
unionized employees cannot bring employment claims to court even
where there is no collective agreement at all.
Navistar Canada Inc. and the Canadian Auto Workers Union
("CAW") have a longstanding collective bargaining
relationship. The CAW was certified to represent two groups of
Navistar employees at a production plant in Ontario.
The last collective agreements between the parties expired June
30, 2009. Navistar and the CAW tried to negotiate a new collective
agreement, without success.
In July 2011, Navistar closed the plant.
The Company and the Union then tried to negotiate a plant
closure agreement. Among other things, such an agreement would
address any compensation to be given to employees as a result of
the permanent job losses.
The parties were unable to reach a plant closure agreement.
A class action lawsuit was then started on behalf of the
Union's members. This was based on the legal theory that each
employee now had an individual contract of employment, which had
been wrongfully terminated. The CAW actively assisted and promoted
the lawsuit in an admitted attempt to push the Company into
finalizing the plant closure agreement.
The Company responded by seeking a ruling that such claims could
not be brought before the court.
General Principles Re Court Access
In a non-union context, there is an implied and/or written
employment agreement directly between the employer and the
employee. Disputes between the employee and employer can be
addressed directly between them. Their disputes can go to
court if necessary.
In a unionized context, however, the relationship is indirect.
The "employment agreement" the employer has is with a
union (i.e. a collective agreement). An employee's rights flow
through the union's relationship and collective agreement with
Because a unionized employee does not have a direct relationship
with his or her employer, it is a well-established principle in
Canadian law that any grievance connected to the collective
agreement or the employment relationship must be pursued through
the union. Such grievances are typically pursued by way of the
grievance and arbitration process under the governing collective
agreement. The courts will reject lawsuits brought by unionized
employees in connection with their terms and conditions of
Here, however, since there was no longer a collective agreement
in effect, the CAW argued that their members gained the ability to
sue the employer directly. Since they could not pursue grievances
through the collective agreement, the union argued the court had
jurisdiction to hear the case.
The court disagreed. It clarified that the above
principles apply even in the absence of a collective agreement. The
employer/union relationship cannot be bypassed through a court
Duty of Good Faith Remains Where No Collective Agreement
Navistar argued that the class action sought to impose a plant
closure agreement and undermine negotiations. Under Ontario's
labour laws, the Company and the Union still had a relationship,
and still had an obligation to bargain in good faith with each
The Court agreed with Navistar. It found that the bargaining
relationship between the Company and the Union continued. The
Court highlighted that the Union had a statutory right to bring a
complaint to the Ontario Labour Relations Board against the
Company, alleging bargaining in bad faith, if it had grounds to do
so. No such complaint was ever brought.
The Court concluded that the Union's claim was without
foundation in law. The lawsuit was dismissed.
An individual, unionized employee's rights to bring a claim
against an employer are limited by the special legal relationship
between the union and employer. Absent a collective agreement, the
requirement to bargain in good faith over employee rights and
benefits remains so long as the union has representation
rights. Baker v. Navistar Canada Inc. suggests that
the courts will not look favourably on a tactic designed to skirt
the union/employer relationship and obligations.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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