HUMAN RIGHTS ISSUES:
COMPLAINT OR GRIEVANCE?
Most collective agreements and the Canadian Human Rights Commission
prohibit discrimination by federally-regulated employers on any of eleven grounds. The
prohibited grounds of discrimination are:
national or ethnic origin;
sex (including pregnancy and childbirth);
disability (including mental conditions and alcohol or drug dependency); and
pardoned for criminal conviction.
If a member wishes to take redress action alleging discrimination based on one
or more prohibited ground(s), we recommend the following steps:
1. Advise your member to file a grievance against the Employer, alleging a violation
of the article of the collective agreement regarding discrimination.
2. Simultaneously, the member should contact the Canadian Human Rights
Commission. This first contact can be made by phone, letter, facsimile, in person
or via the CHRC website. An Intake Officer will conduct a preliminary screening
to determine if the member meets the criteria for filing a complaint (standing of
the complainant, jurisdiction, ground, practice & timeliness). If the matter meets
the criteria for filing a complaint, the Intake Officer will inform the member of the
Commission’s process for filing a complaint and send an Intake Kit. Be aware
that under the new CHRC process for complaints, it is the member’s
responsibility to draft his/her own complaint. In this regard, the CHRC’s staff is
advising individuals to get help from their union representative or assistance
organization when available. Therefore, the member should indicate to the
Commission that his/her union representative is one of the contact persons.
Otherwise, the Commission will not provide the union with the status of the case.
3. After the CHRC receives the signed complaint, it notifies the Employer that a
complaint has been filed against it. At the same time, the CHRC invites the
parties to consider mediation.
4. At this point, your member should be advised that the Employer will most likely
request that the Commission takes no further proceedings in the complaint
pending the outcome of the grievance. When this request is received by the
CHRC, a Section 41 Report will be prepared detailing the following: the nature of
the grievance, the grievance process, the likelihood that the grievance will
resolve the issues, and the expected time frame. This report is then submitted to
the Commission who will advise both parties of its decision to either deal with or
not to deal with the complaint.
5. In case where the Commission decides not to deal with the complaint, the Union
will proceed to provide representation throughout the grievance procedure until
such time as it is determined by the complainant that unresolved issues may
have to be dealt with by the CHRC complaint.
6. If the grievance procedure has resolved the problem to the member’s
satisfaction, he/she may ask the Commission to withdraw the HR complaint at
any time. If the grievance remains unresolved in whole or in part, the member
may request the CHRC to proceed with the HR complaint. The member should
be made aware that such request must be made promptly since the Commission
may decide not to deal with a complaint for timeliness reason.
There are several avenues available at the CHRC to resolve a complaint. The
CHRC’s website – www.chrc-ccdp.ca – gives further information on:
the complaint process;
other redress procedures;
filing a complaint;
conciliation and human rights complaints; and
mediation and human rights complaints.