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Collective agreements and employment-related legislation, such as Human Rights Codes and Employment Standards Acts, set out powerful equity rights. Unfortunately, there is no guarantee that these rights will be followed. As a result, in addition to the codification of these rights, there also needs to be a mechanism to enforce them. In unionized workplaces the most important way to do this is by filing a grievance.

A grievance is a formal allegation that there has been a violation of the legal terms and conditions of employment in a workplace. 

All grievances are complaints, but not all complaints are grievances. Complaints that contain an allegation that there has been a violation of the legal terms and conditions of employment enter the grievance arbitration route. Complaints that do not may still signal problems in the workplace and must be taken seriously – but they should not be grieved.

What is a grievance?

The ordinary meaning of the word “grievance” is a “ground of complaint”. In unionized workplaces the term takes on a narrower, technical meaning. In this context a grievance is a formal allegation that there has been a violation of the legal terms and conditions of employment. The “legal terms and conditions of employment” include the collective agreement, employment-related legislation, and arbitral and judicial decisions. 

Pursuing equity grievances is not only the right thing to do, it is also the law. While the association does not have to automatically take every case forward, its conduct in grievance handling is governed by the Duty of Fair Representation. The essence of the duty is that every employee has an enforceable right to be fairly represented in the grievance process by their association in a manner that is neither arbitrary, discriminatory nor in bad faith. The degree of this duty depends on the facts of each case, but when a matter involves a serious threat to job security, the mental or physical health of a member, or human rights issues, the association is held to a particularly high standard of conduct. 

How are grievances resolved?

The union and the employer meet and attempt to find a solution to the grievance. If they are unable to, the matter proceeds to arbitration. An arbitration is a hearing process specifically created to adjudicate disputes within a workplace. At the end of the hearing the arbitrator issues a decision upholding the grievance and ordering a remedy, or dismisses it.

Equity & grievance handling

Over the last 50 plus years, grievance arbitration has evolved into an imperfect but functional mechanism to resolve workplace disputes, especially over issues such as remuneration, job security, and unjust discipline. As academic staff demographics have transformed from relative homogeneity to a diversity better resembling Canadian society, these traditional disputes have increasingly intersected with equity issues. While grievances have successfully confronted discrimination in some instances, barriers remain to fully deploying the process to advance equity.

Pursuing workplace justice includes engaging in expensive and time consuming legal cases. Unions, through the dues checkoff and grievance systems they have established, are one of the few groups with the financial and institutional resources necessary to engage in such action.

Factors that inhibit the grievance process from more effectively confronting discriminatory practices:

Awareness. Members with equity concerns may be unfamiliar with the association and the collective agreement, presenting a bar to their participation in the grievance process. The solution is for associations to reach out, demonstrate a commitment to equity, and build more inclusive, activist organizations.

Knowledge. The association and its members may lack familiarity with human rights law. This may leave members unable to frame their issue in a conventional legal analysis, and associations unable to move difficult cases forward. The solution is human rights training.

Visibility. Some discrimination arises from blatant bigotry (for example, racism, homophobia, misogyny), but a larger proportion stems from systemic exclusion and unconscious behaviors that, even if detected, are difficult to prove. On top of that, not all disabilities or memberships in marginalized groups are immediately apparent. Associations and members may encounter difficultly bringing forward grievances in such cases. The solution is increased equity awareness and vigilance, and a willingness to think and advocate creatively. 

Fear. Even with association support, it can be difficult for members to challenge the employer’s actions. This task can be particularly difficult for those with additional workplace vulnerability, including members with precarious employment security and those from equity-deserving groups. The solution is extra effort by the union to welcome and support all members in the grievance process. 

Resistance. Pursuing equity cases through the grievance process has not always been a priority for associations. The solution is for associations to build more inclusive, activist organizations that work to ensure all members enjoy equal access to the Association and to workplace rights.