By:
Joel Fairbrother, Bow River Law
Introduction
Many workplace situations trigger legal considerations for those involved. Sometimes these considerations compete with one another.
Workplace complaints in Alberta can involve overlapping legal issues and jurisdictional considerations.
These issues can include harassment, reprisals, human rights, occupational health and safety, and workers’ compensation, which may then give rise to complaints with overlapping jurisdictions, including civil claims, human rights claims, OH&S complaints, and duty of fair representation complaints.
One of the keys to navigating these overlapping issues and jurisdictional considerations is to triage them as early as possible. This requires: gathering facts; determining the potential legal issues; determining the client’s objectives; determining the processes and remedies potentially available; and determining the mandatory timelines applicable to each relevant process.
Choosing the Right Process(es)
Forum selection is often the first major strategic issue. Possible workplace complaints and their forums include, for instance:
- Internal workplace complaint processes (Employer)
- Occupational Health & Safety (ALRB)
- Human rights (AHRT, ALRB)
- Union grievances and arbitration (Collective Agreement, ALRB)
- WCB claims and complaints (WCB)
- Union internal appeal procedures (Union constitution and bylaws)
- Duty of Fair Representation complaints (ALRB)
- Civil Actions (ACJ, ABKB)
Internal Processes, Investigations and Reprisal Risk
Employment policies are often the starting point for workplace harassment complaints. These policies often set out a complaint procedure, investigation process, confidentiality obligations, timelines, and available corrective action. Such policies typically state that good faith complaints will not result in reprisal or retaliation.
Practitioners should attempt to secure a copy of the relevant policies before the client makes a workplace complaint, if possible, in order to assess risk of reprisal and whether the policy offers the remedy the client seeks. This will often require a chronology to address the following questions:
- What right did the client assert, or want to assert?
- When did the employer become aware of the underlying facts or the client’s desire to assert rights?
- What adverse action followed?
- What explanations were provided by the employer for adverse actions?
Practitioners should also provide some basic assessment of the likely merits and challenges associated with a complaint before the client files it. This will include identifying what documents or other witnesses might support the client’s story.
Additional Complexities in Unionized Workplaces
In unionized workplaces, the collective agreement and grievance procedure will usually be important considerations. Practitioners should consider:
- Grievance deadlines
- Whether the union has carriage of the grievance
- Whether the issue also raises human rights or OH&S considerations
- Whether the union’s handling of the matter has been appropriate
If there are concerns with decisions a union has made or how they have handled a matter, practitioners should consider if the union has internal appeal mechanisms and if a Duty of Fair Representation complaint (“DFR”) is appropriate.
In a DFR complaint, the focus is generally on the union’s decision-making process, and not simply whether the employee disagrees with the outcome.
Legal counsel for unions and employers should seriously consider making submissions on DFR matters where appropriate, because the outcome of a given DFR can affect their future interests.
Conclusion: Matching Strategy to Remedy
Workplace complaint strategy should be driven by the client’s objectives and the realistically available remedies. Different processes offer different outcomes. The outcomes could include workplace corrective action, reinstatement, lost wages, human rights damages, WCB benefits, civil damages, or remedies connected to union representation.
Timeliness is key in gathering facts and selecting the appropriate forums for given objectives. Failure to act in a timely fashion can result in the loss of meaningful remedies.
Practical Guidance Canada includes Alberta-specific employment and labour resources contributed by Bow River Law, including: Workplace Harassment Complaints: Selecting the Proper Forum (AB), Reprisals (AB), and Duty of Fair Representation Complaints (AB). These resources provide practical guidance on forum selection, reprisal risks, grievance and DFR processes, and available remedies, helping practitioners assess workplace complaint strategy from both employee-side and employer-side perspectives.