Remedies for Unionized Employees - If It Is Not Common Law Notice, What Is It?
When a non-union employee is fired without cause in Ontario, the usual legal question is whether the employer provided enough notice or severance. That often leads to a wrongful dismissal claim seeking common law reasonable notice.
For a unionized employee, the analysis is different.
If the dispute arises from the collective agreement, the employee usually cannot simply sue the employer in court for common law reasonable notice. The Supreme Court of Canada’s “exclusive jurisdiction” approach generally sends disputes arising from a collective agreement to grievance arbitration instead of the civil courts.
So what does a unionized employee ask for if not common law reasonable notice?
The answer is usually: a collective agreement remedy, statutory remedy, reinstatement, back pay, benefits, removal or reduction of discipline, accommodation, or another order that fixes the breach.
What Is a Grievance?
A grievance is a formal workplace complaint under the collective agreement. It usually alleges that the employer breached the collective agreement, a workplace policy, an incorporated statutory right, or an employment-related obligation.
Ontario’s grievance arbitration system is built around resolving disputes about the interpretation, application, administration, or alleged violation of a collective agreement. Ontario.ca explains that where a collective agreement does not contain an arbitration provision, section 48 of the Labour Relations Act, 1995 incorporates one.
Common grievances involve termination, discipline, suspension, overtime, scheduling, seniority, benefits, job postings, harassment, accommodation, unsafe work, and pay errors.
Why Common Law Reasonable Notice Usually Does Not Fit
In a non-union wrongful dismissal claim, the employee typically seeks damages based on the reasonable notice period. Vanguard Law explains that wrongful dismissal generally means the employee was let go without proper notice or pay in lieu, and that common law notice can exceed ESA minimums depending on factors like age, service, position, and the job market.
Unionized employees usually do not frame the issue that way. Their job security rights come from the collective agreement. Many collective agreements say the employer can only discipline or discharge for just cause. If the employer lacked just cause, the remedy is not necessarily “reasonable notice.” The remedy may be reinstatement, back pay, lost benefits, seniority restoration, or another make-whole order.
The Main Remedy: Reinstatement
One of the biggest differences between union and non-union employment law is reinstatement.
In a wrongful dismissal lawsuit, reinstatement is generally not the normal remedy. Courts usually award money. In grievance arbitration, reinstatement can be a central remedy if the arbitrator finds that the employer did not have just cause to terminate.
That means a unionized employee may be put back into the job, with compensation for lost wages and benefits, subject to the specific facts and any deductions or conditions.
Back Pay and Lost Benefits
If a termination, suspension, or layoff breached the collective agreement, the employee may seek back pay. Back pay is usually aimed at restoring the income the employee would have earned if the breach had not happened.
Benefits may also matter. A remedy may address lost health benefits, pension contributions, vacation accrual, service credits, overtime opportunities, or other compensation connected to the collective agreement.
This is different from common law reasonable notice. The question is not simply, “How many months of notice was reasonable?” The question is often, “What would have happened under the collective agreement if the employer had acted properly?”
Removal or Reduction of Discipline
Not every grievance involves termination. Many involve written warnings, suspensions, demotions, performance management, or last-chance agreements.
A grievance remedy may include removing a discipline letter from the employee’s file, substituting a lesser penalty, reducing a suspension, compensating for lost wages, or confirming that the employer must follow a fair process going forward.
Declarations and Compliance Orders
Some grievances are about interpretation. For example, the union and employer may disagree about overtime allocation, seniority, vacation scheduling, job posting language, wage grids, or benefit entitlement.
In those cases, a remedy may include a declaration that the employer breached the collective agreement and an order requiring the employer to comply with the agreement moving forward.
Human Rights Remedies
If the grievance involves discrimination, harassment, or failure to accommodate, human rights remedies may be available through arbitration or, in some cases, through the HRTO.
The Supreme Court of Canada has recognized that Ontario labour arbitrators can interpret and apply human rights and other employment-related statutes under the Labour Relations Act.
The HRTO also resolves discrimination and harassment claims under Ontario’s Human Rights Code, and the OHRC has noted that the HRTO confirmed jurisdiction to resolve Human Rights Code-related discrimination claims by unionized employees in Ontario.
Possible human rights remedies may include compensation for injury to dignity, feelings, and self-respect; lost income; accommodation-related orders; policy changes; training; or other public interest remedies.
Remedies When the Union Breaches DFR
Sometimes the employee’s problem is not only with the employer. It may be with the union’s handling of the matter.
If the union breaches its duty of fair representation, the OLRB may be asked to address the union’s conduct. The OLRB explains that it can require a union to take a grievance to arbitration only if the Board is satisfied that the union violated its duty of fair representation.
A DFR remedy is not the same as winning the original grievance. The Board is focused on whether the union acted arbitrarily, discriminatorily, or in bad faith. If the employee succeeds, the practical remedy may involve reopening the representational process, requiring the union to process the grievance, or other orders depending on the circumstances.
What Remedies Should a Unionized Employee Ask For?
The remedy depends on the problem. For example:
If the employee was terminated, remedies may include reinstatement, back pay, benefits, seniority, and removal of the termination from the record.
If the employee was suspended, remedies may include lost wages, removal of discipline, and restoration of benefits or seniority.
If the employer failed to accommodate, remedies may include proper accommodation, lost income, human rights damages, modified duties, scheduling changes, or policy changes.
If the employer misapplied seniority, remedies may include a corrected job award, compensation for lost opportunities, and compliance going forward.
If the union mishandled the case, remedies may involve a DFR application and an order requiring fair processing of the grievance.
Why Legal Advice Matters
Unionized employees often ask the wrong question at first. They ask, “How much severance am I owed?” But in a unionized workplace, the better question may be:
Was there just cause?
Did the employer breach the collective agreement?
Did the union properly represent me?
Is reinstatement realistic?
Are there human rights damages?
Was there a statutory breach?
Should the issue proceed by grievance, DFR application, HRTO application, or another route?
Vanguard Law can help employees understand the difference between a court-based wrongful dismissal claim and a unionized grievance remedy. Where the issue involves harassment, discrimination, accommodation, discipline, or investigation findings, Vanguard’s pages on harassment and discrimination and workplace investigations may also be relevant.
Bottom Line
Unionized employees may have powerful remedies, but they are usually not framed as common law reasonable notice damages.
A grievance may seek reinstatement, back pay, benefits, seniority restoration, removal of discipline, accommodation, human rights remedies, declarations, compliance orders, or a settlement tailored to the collective agreement.
If you are a unionized employee facing termination, suspension, discipline, harassment, discrimination, or a union that will not help, contact Vanguard Law before deadlines pass or settlement documents are signed.