The Alberta Human Rights Commission and labour arbitrators hold concurrent jurisdiction over human rights issues in unionized workplaces, as highlighted by a recent decision from the Chief of the Alberta Human Rights. However, the Commission will generally defer to the grievance process under collective agreements, except in rare circumstances where the grievance process is not a suitable alternative. This means that, absent exceptional circumstances, human rights issues should be addressed through the grievance arbitration process. It is therefore important for unionized employees and employers to consider the appropriate forum in which to file and deal with such issues.
When faced with a human rights complaint by a unionized employee, employers should consider if it is necessary to apply to the Director of the Commission for a dismissal of the human rights complaint.
You may recall our prior article discussing the Supreme Court of Canada's decision in Northern Regional Health Authority v Horrocks, which addressed the dueling jurisdiction of labour arbitrators and Human Rights Commissions over human rights issues. In that case, the Court outlined a test to determine whether labour arbitrators have exclusive jurisdiction over human rights claims arising from a unionized employment relationship, or if labour arbitrators share concurrent jurisdiction with the relevant provincial Human Rights Commission. Our prior article noted that human rights legislation in Alberta differed from the scheme considered by the Supreme Court and it remained to be seen how the test will be applied by the Alberta Human Rights Commission and labour arbitrators.
Since the release of Horrocks, the Alberta Human Rights Commission (the "Commission") has issued decisions ruling on whether it has jurisdiction over human rights issue in the unionized workplace and if so, when it should exercise its jurisdiction. The most recent of those decisions was issued by the Chief of the Commission in Koziak v The Board of Governors of the University of Calgary.
For background, Koziak filed a complaint against the Respondent University arising from the University's COVID-19 vaccination policy that required employees be vaccinated unless they demonstrated the need for an exemption based on a valid human rights ground. Koziak requested an exemption from the policy due to her religious beliefs. The exemption was declined, and Koziak was placed on a non-disciplinary leave due to her failure to comply with the vaccination policy. After filing a human rights complaint with the Commission, Koziak's union filed grievances with the Respondent relating to being placed on leave without pay, the denial of her request for religious accommodation and, later, the abolishment of her position.
In addition to addressing the merits of the human rights complaint, the Respondent applied to the Director of the Commission for the complaint to be dismissed, or alternatively deferred, pending the outcome of the grievance process which was ongoing at the time. While Koziak took issue with the timing and scheduling of the grievance process there was indication that in Spring 2023 the union had conveyed her grievances to arbitration. Ultimately, the Director had determined that the complaint was already being addressed by the parties in the grievance procedure and that was the most appropriate forum for the complaint to be heard. The complaint was therefore dismissed under section 21(1)(a)(iv) of the Alberta Human Rights Act.
This decision was appealed to the Chief of the Commission, who upheld the Director's dismissal of the complaint.
In doing so, the Chief provided a helpful review of the law regarding jurisdiction of the Commission versus labour arbitrators. The Chief highlighted that the amendments to the Alberta Human Rights Act in 2021 made it clear that the Commission possesses concurrent jurisdiction with labour arbitrators over human rights matters. Despite this, the Commission will not always exercise its jurisdiction. Rather, if there is a grievance that includes the human rights issue being dealt with in a grievance procedure governed by a collective agreement addressing human rights issues (i.e., discrimination), the Commission should decline to exercise its jurisdiction over a complaint. In other words, the Director should dismiss the complaint, as was done in the case of Koziak.
Notably, the Commission left open the possibility that there may be "rare circumstances" where the Commission should retain jurisdiction and therefore not dismiss a complaint. In essence, such rare circumstances would arise where the evidence shows the grievance process is not a viable alternative forum. As an example, the Chief referenced a prior decision from the Commission where the filed grievances did not address the human rights issue and the complainant was out of time to file such a grievance.
Takeaway
This is a clear indication from the Commission as to how it will deal with human rights complaints that arise in a unionized workplace. Ultimately, while there is concurrent jurisdiction between labour arbitrators and the Commission, the Commission will, absent rare circumstances, decline to deal with a complaint where it is being dealt with in a grievance process. It will therefore be important to for those in the unionized workplace to consider the correct forum for a complaint where a human rights issue arises and to file accordingly. One should consider whether the governing collective agreement deals with discrimination. If so, then the issue should proceed through the grievance arbitration process. In cases where a grievance has been filed and the individual also files a human rights complaint on the same issue, one should consider making an application to the Director of the Commission to have the human rights complaint so it may be dealt with in the more appropriate forum – the grievance process.
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