The Ontario Labour Relations Board (OLRB) has told a former employee of Red Lobster to decide whether to pursue his complaint through his union’s grievance process or continue with an application under the Occupational Health and Safety Act (OHSA).
K.H. alleges that he was removed from the work schedule after filing a sexual harassment complaint on behalf of a colleague. Seeking reinstatement, he initiated an application under section 50 of the OHSA. Concurrently, his union, United Food and Commercial Workers, Local 1006a (UFCW), filed a grievance concerning his termination, which has progressed through the first stage of the grievance procedure.
In a letter dated October 10, 2024, Red Lobster informed the Board of the ongoing grievance and requested that K.H.’s application be held pending the grievance outcome. “It asks that the Board hold this application pending the outcome of the grievance process,” noted Vice-Chair Peigi Ross in the decision dated October 11, 2024.
Under subsection 50(2) of the OHSA, an employee cannot simultaneously pursue both a grievance and an application before the Board on the same matter. The Act stipulates: “The worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board.”
This provision aims to prevent multiple legal proceedings on the same issue. Citing the Board’s reasoning in a previous case, the decision stated: “The legislature did not want parties to have to litigate these sorts of workplace issues more than one time before more than one forum.”
Typically, when a grievance process is underway, the Board places the application under section 50 in abeyance. “Generally speaking, where the grievance process is underway the Board will place an application under section 50 in abeyance (on hold) and if that grievance is referred to arbitration an application such as this one will be foreclosed from proceeding,” Ross explained.
K.H., representing himself, expressed a desire to proceed with his application without it being held in abeyance but also indicated reluctance to withdraw from the grievance process. “He comments that he does not wish the Board to hold this application in abeyance pending the outcome of the grievance process and makes reference to the grievance proceeding to the next step,” the decision noted.
However, the Board emphasized that K.H. must choose one path. “As Mr. Huggins notes, he cannot pursue both a grievance and a section 50 application at the same time,” Ross stated.
The Vice-Chair directed K.H. to clarify his intentions by October 18, 2024:
- If he wishes to proceed with the Board application, he must formally withdraw his grievance.
- If he opts to continue with the grievance process, he must provide reasons why the Board should not place his application in abeyance pending the grievance outcome.
“Mr. Huggins is therefore directed to advise the Board whether he wishes to exercise his election under section 50(2) at this time and proceed with this application in which case he must formally withdraw his grievance otherwise this application cannot proceed,” the decision outlined.
Red Lobster and UFCW have been given until October 25, 2024, to submit their responses.
K.H. also requested that Red Lobster’s response be dismissed and that he be granted his requested remedy, alleging fraud without providing a basis for the claim. The Board addressed this by stating, “That Mr. Huggins disagrees with the position taken by Red Lobster is not a reason to dismiss the response and determine this application.”
Furthermore, Red Lobster sought to have K.H.’s application dismissed on the grounds that it does not establish a prima facie violation of the Act. However, the Board deferred addressing this motion. “The Board will not address that motion at this time,” Ross indicated.
For more information, see Kevin Huggins v Red Lobster, 2024 CanLII 103159 (ON LRB).
