"LAWYERS CAN'T REPRESENT MEMBERS OF UNIONS"

Ed Canning practises employment and labour law with Ross & McBride

I often receive phone calls from individuals who are members of a union who have been terminated and want to hire me to pursue their claim for reasonable notice.

They are often mystified when I tell them that because they are members of a union, I can do nothing for them. What many people do not understand is that employees who are part of a union and employees who are not live in very different working worlds.

ADVANTAGES
Unionized employees have many advantages which non-unionized employees do not have. The one advantage non-unionized employees have, however, is that if they are terminated without just cause they are entitled to reasonable notice.
Unionized employees, if they cannot grieve the termination, are entitled only to the minimum set out by the Employment Standards Act or whatever package their union negotiates for them.
People in unions are subject to a collective agreement which sets out in a very detailed way, the details of their employment.
Everything from the length of their breaks to their overtime pay rate is set out. There are seniority rights and bumping rights. If a union member has a problem with something that is being done in the workplace that violates the collective agreement, they can file a grievance and have an independent third party make a decision on the matter.
Non-unionized employees have no such rights. Most employees have no written contract whatsoever. In the few cases where there is a written contract, it sets out only the very basic aspects of employment. I have never seen an employment contract that comes anywhere near the detail that is found in most collective agreements.
If a non-unionized employee has a problem with something her employer is doing in the workplace, there is very little she can do about it. Even if the employer is violating a written contract, the employee does not have many choices.
Can you imagine going to work every day while suing your employer for failing to give you the vacation time promised in your contract?
If a unionized employee is terminated by her employer for some performance related issue, she can grieve that termination. If the employer cannot prove there was just cause for the termination, the employee will be reinstated to her job, usually with back pay for all the time she missed from work. This is perhaps the most important protection unionized employees have. They are protected from arbitrary terminations.
Non-unionized employees have no such protection. As long as employers do not violate the Ontario Human Rights Code or some other statute, they can terminate their employees for the silliest of reasons. The non-unionized employee cannot grieve that termination.
The best she can do is hire a lawyer to make sure she receives reasonable pay in lieu of notice. An employee who is not a member of a union can never get a court to reinstate her to her job.
The reality is that unionized employees have many advantages over non-unionized employees. The exception is where there is a termination for economic reasons. If a union member is laid off in proper order of seniority as a result of a plant closure or a reduction in work, there is nothing for her to grieve.
Another very common misconception among unionized employees is that if they don't like the way their union is representing them, they can hire their own lawyer. This is simply not the case. It has long been held by the courts that if you are a member of a union and subject to a collective agreement, the only person who can represent you in relation to your employer is your union. If I wrote a letter to an employer on behalf of a union member, they would have every right to send my letter back.
The very fact that a collective agreement exists means there is only one authorized representative for the union member: the union. The company does not have to deal with me or any other lawyer. On the rare occasion they do; it is with the union's agreement when they don't mind the assistance.
Many union members ask if they can hire me to sue the employer if they lose the grievance at arbitration.
The answer is no. The only remedies that unionized employees have with respect to any difference of opinion, conflict or disagreement with their employer is through the grievance and arbitration process.
They are treated like a sovereign country with a right to democratic self determination. In the end, there are many advantages to being in a union, especially if the union is run by persons with integrity who do not engage in favouritism with respect to who they will help and who they ignore.