With a very public airing of a dismissal, many of you have questions about what your union can and should do when a member is dismissed.
What legal rights does a member have? What options are available, and what is the extent of the legal and other assistance the union is obligated to provide for every member? In short, what does your union do to protect a member’s right not to be fired except for “just cause” or as otherwise provided in the collective agreement?
Some cases are more complicated that others, but in every case, when a union member is fired, it is a significant issue and one in which the union invests time and energy.
Our ultimate goal is to ensure that no one is fired without a real and compelling reason, and that there is an opportunity to look at underlying issues surrounding a dismissal.
Our goal is fairness, and to ensure that everyone at a workplace is afforded their rights and given an opportunity to explain themselves or to correct a problem in a transparent process.
If you were to be fired from your job tomorrow, we would do the same for you.
As you can imagine, dismissals come in all forms with numerous underlying factors. Through the years, CMG has fought, won, and settled many such cases, some controversial, most dealt with quietly, but each one significant for the people involved.
The Canada Labour Code and provincial legislation place statutory obligations on unions to represent employees through the grievance and arbitration process. Courts in turn have said that employees who work in a unionized workplace cannot sue their employers in court for wrongful dismissal or for other matters that arise out of their employment, until they have exhausted the processes available through their union. For redress, unionized employees must file grievances through their unions and use the grievance and arbitration process.
In each case, when a member who has been fired asks us to file a grievance,we must be careful to do so in a timely manner and then we will further investigate the circumstances before making a decision about whether the grievance is valid, supportable, or winnable.
Among other things we have to be concerned about setting precedents, and how our actions in any one case might influence decisions in other cases. There are numerous factors besides the immediate ones involved in any particular case that come into play. Dealing with that complexity is part of ensuring a fair system for everyone.
In practical terms, at the Joint National Grievance Committee, a team of union volunteers and union staff, who are supported by a lawyer as needed, meet with a team of CBC managers, on a semi-regular basis to investigate these kinds of issues.
The teams meet in person, discuss the facts and try to agree on a resolution where possible. If there is no agreement, and neither side decides to withdraw, the case then is passed on to an arbitrator (a lawyer acting as a mediator or judge), who is tasked with mediating a resolution or making a decision.
In cases where a grievance is not resolved, the decision to proceed to arbitration must be approved by the union executive committee. The committee considers the significance of the issue to the member, the likelihood of winning, and other factors such as the impact of proceeding on other members.
If the two sides cannot agree on an outcome, the arbitrator makes a decision that both sides must accept. This process can take weeks or months, sometimes because schedules must be coordinated, at other times due to the complexity of the case and the time required to collect information.
If the facts presented by management in support of a dismissal are indisputable or otherwise compelling, there may be little the union can do for a member. However, one of the benefits of union membership is our ability to ensure the employer provides “just cause” if it is to dismiss an employee.
A complicating factor may arise if a criminal charge is also filed. In these cases, the grievance procedure may be held up until after the criminal issue is resolved, (which could take months), as testimony and issues arising in an arbitration might prejudice or otherwise impact the criminal proceeding.
As in all matters the union deals with, grievances can only be filed about workplace issues that are covered in the collective agreement or arise in a related way out of the employment relationship. Other questions, criminal and otherwise are not within the union’s purview; decisions to fight those issues are up to the individual.
Carmel Smyth (carmel@cmg.ca)
National President, CMG