THE PRIMACY OF ARBITRATION AND COLLECTIVE BARGAINING

Health care worker fired for drinking can't challenge termination using Human Rights Code: Supreme Court

CBC/Radio-Canada 

© Justin Tang/The Canadian Press The Supreme Court of Canada has ruled that disputes between a unionized employee and their employer that are covered by a collective agreement must be settled by a labor arbitrator under the Labour Relations Act.

A Manitoba health care worker who was fired from her job for drinking alcohol cannot challenge her termination under her province's Human Rights Code, the Supreme Court of Canada has ruled.

The ruling sided with the employer's argument that disputes between a unionized employee and an employer on an issue covered by a collective agreement can only be settled by a labour arbitrator working with both parties.

The ruling is significant and has ramifications across the country because the human rights codes and labour relations acts of many provinces are based on similar principles of law.

This case stems from the 2011 suspension and subsequent firing of Linda Horrocks from a personal care home run by the Northern Regional Health Authority in Flin Flon, Man.

Horrocks, who suffered from alcohol dependence — a disability recognized by her employer, her union's collective agreement and Manitoba's Human Rights Code — was suspended from work for being intoxicated.

The health authority offered Horrocks her job back providing she agreed to a total abstinence from alcohol. She refused to sign the agreement, saying it discriminated against her based on her recognized disability, and was fired as a result.

Horrocks grieved her termination to the union and in 2012 she struck a deal allowing her to return to work providing she abstained from drinking, sought counselling and submitted to random alcohol tests.

When her employer received reports that Horrocks was intoxicated outside of work, she denied drinking. But her employer told her that those "denials are not believed," concluded that she was in breach of her agreement to abstain from alcohol and fired her.

Rather than filing another grievance with her employer, Horrocks brought her complaint to the Manitoba Human Rights Commission, where an adjudicator ruled that she had been discriminated against based on her disability.

The adjudicator ordered the health authority to rehire Horrocks and compensate her with lost wages and $10,000 for injury to her "dignity, feelings and self respect."

The health authority objected to the jurisdiction of the Human Rights Commission and a court agreed, ruling that a labour arbitrator had jurisdiction in the case. Horrocks had that decision overturned at the court of appeal, which ruled in 2017 that both the commission and a labour arbitrator had jurisdiction in the case and sent it back to the lower court judge.

The health authority appealed that decision to the top court where six of the justices that heard the case sided with Horrocks' employer, ruling that the Labour Relations Act trumps the Human Rights Code in this case.

"The [labour] arbitrator's jurisdiction under the Labour Relations Act over claims that arise, in their essential character, from the interpretation, application, or alleged violation of the collective agreement is exclusive and, more particularly, exclusive of the [Human Rights] Commission," the judgment said.

"In its essential character, Ms. Horrocks' complaint alleges a violation of the collective agreement, and thus falls squarely within the [labour] arbitrator's mandate."

The ruling means that the decision by the province's Human Rights Commission requiring Horrocks to be reinstated has no legal standing.

Horrocks' lawyer Paul Champ told CBC News in an email that he is disappointed with the ruling — which he said "slams the door of human rights tribunals to unionized employees with discrimination claims" — but appreciates that the country's top court saw the issue differently.

Champ said that Horrocks, now 64 and working in retail, was disappointed that the case was dismissed and that the decision under the Human Rights Code has been set aside.

"The court left the door open that a grievance still might be considered by the employer in the circumstances, and we are going to get in touch with the union to see if they will file a grievance now," he said.