Thursday, December 3, 2009

Wal-Mart beats the Union

Attention Wal-Mart shoppers:

In Plourde v. Wal‑Mart Canada Corp., 2009 SCC 54 the Supreme Court of Canada considered an application by an employee to be reinstated after a Walmart store had been closed ostensibly to defeat union certification.

The union certified to represent the employees of Wal‑Mart in Jonquière, Quebec. The Jonquière store was the first Wal‑Mart store to be unionized in North America. After several fruitless bargaining sessions, the union filed an application under the Quebec Labour Code to establish the provisions of a first collective agreement. On February 9, 2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same day, Wal‑Mart informed the employees of its decision to close the store. On April 29, 2005, approximately 190 employees were terminated. Many proceedings were initiated by the Wal‑Mart employees or their union arising out of the store’s closure, which was presented by the union merely as a step taken by Wal‑Mart in a larger employer strategy of hindrance, intimidation and union‑busting. P filed a complaint under ss. 15 to 17 of the Labour Code claiming to have lost his employment because of his union activities and sought an order that he be reinstated in his job.

The Commission des relations du travail (“CRT”) held that P could rely on the presumption under s. 17, since he had engaged in numerous significant union activities that were concomitant with the termination of his employment. However, the CRT found that Wal‑Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of cases from City Buick onwards, is “good and sufficient reason” within the meaning of s. 17 to justify the dismissal. The Superior Court dismissed P’s application for judicial review and held that the CRT was correct in not requiring Wal‑Mart to prove its reasons for closing the store. The Court of Appeal dismissed P’s motion for leave to appeal.

The Supreme Court of Canada dismissed the appeal but was careful in its reasons to limit the effect of the decision to the specific procedural issue presented by the Labour Code. Specifically the court found that the reinstatement remedy which was sought by the appellant was not available where the employer had closed the premises.

The court held that the question raised by the appeal was not whether employees have a remedy against an employer who closes a workplace for anti‑union motives (they do have such a remedy under ss. 12 to 14 of the Code) but whether employees of a closed business can bring their claim within ss. 15 to 17 so as to obtain the advantage of a statutory presumption that they lost their jobs because they exercised their collective bargaining rights. Under ss. 15 to 17, the question before the tribunal relates to the reasons for the employees’ loss of jobs whereas the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and specifically was it closed as part of an anti‑union strategy.

A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial provisions provided by ss. 118 and 119 of the Code for the benefit of all employees who suffered as a result of the wrongful store closure, including those who where not involved in union activity, and even for those who opposed the union.

In the earlier Place des Arts decision the SCC held that no legislation in Quebec obliged an employer to remain in business and that an employer can close a plant for “socially reprehensible considerations”. In this case the SCC held that the effect of Place des Arts was to exclude in a workplace closure situation the application of s. 17 but not to immunize an employer from any financial consequences for associated unfair labour practices. Nor did it preclude a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees from exercising rights under the Code. It is open to a union or employees to bring evidence of anti‑union conduct to establish an unfair labour practice under ss. 12 to 14 of the Code.

Therefore the procedural vehicle offered by ss. 15 to 17 of the Labour Code is not available to an employee in circumstances where a workplace no longer exists. The s. 15 reinstatement remedy presupposes the existence of a place to which reinstatement is possible.

Regards,

Blair