Lessons from the Wal-Mart union case

History
After the unionization of its Jonquière store, Wal-Mart and the nascent union were unable to come to a collective agreement, at which point the union sought the services of an arbitrator. On the day an arbitrator was appointed, Wal-Mart announced that it would close its Jonquière store permanently.

The appellant Plourde and a number of other terminated employees filed a complaint against Wal-Mart under sections 15 to 17 of the Quebec Labour Code, alleging that he had lost his job because the store had been unionized. According to Ogilvy Renault, these sections set out a remedy for employees who have been dismissed, discriminated against or subjected to reprisals or other sanctions because they exercised a right arising from the code.

“One of the undeniable advantages of bringing a claim under sections 15 to 17 of the code is that the employee benefits from a reversal of the burden of proof,” says the Ogilvy Renault article. “Once the employee shows that he was taking part in union activities, there is a presumption that his termination (or other sanction) resulted from the exercise of such right and thus that a violation of the code occurred. In such a case, it will be up to the employer to demonstrate that it had a good and sufficient reason to proceed with termination.”

Quebec courts have consistently recognized that an employer that “proceeds with a real and definitive closure of its business necessarily has a good and sufficient reason to terminate the employment of its workforce.” According to the article, the Commission des relations du travail (Labour Relations Board)—asked to rule on Plourde’s complaint—applied these authorities and found that since Wal-Mart had shown that its store had been genuinely and permanently closed, there was no violation of section 15 of the code. The complaint was dismissed, and the board’s finding was confirmed by the Quebec Superior Court and the Court of Appeal.

Supreme Court
Plourde told the Supreme Court that it should reverse the Quebec case law on the question, in particular taking into consideration a recent decision by the court that recognized that the collective bargaining process had a constitutional dimension.

In a 6-3 majority decision, the Supreme Court confirmed the current state of Quebec law and acknowledged that an employer is entitled to close its business, even if the closure is based on “socially reprehensible considerations.”

The scope of the ruling
Ogilvy Renault says the court has affirmed that an employer that proceeds with a real and definitive closure of its business is not required to justify its decision. In doing so, the court has thus acknowledged that employees alleging closure of a workplace for anti-union motives cannot benefit from the considerable advantage afforded by section 17, namely, a reversal of the burden of proof.

However, the Supreme Court points out that an employer that closes its business for anti-union motives may be the subject of an unfair labour practice complaint under sections 12 to 14 of the code. The provisions under those sections prohibit an employer from interfering with an association of employees or using intimidation, threats or reprisals to prevent employees from exercising their rights under the code.

Nevertheless, the court emphasizes that in bringing such a complaint employees will have to “overcome the difficulties resulting from their burden to establish real anti-union conduct on the part of the employer, a demonstration that will not always be easy to make.” Further, even in cases involving violation of sections 12 to 14 of the code, the Commission des relations du travail cannot compel a business to reopen and reinstate the employees. As noted by the court, the possible adverse consequences for the employer in such cases will be financial only and may include compensation to the employees for the losses suffered as a result of the closure of the business for anti-union motives.

Ogilvy Renault represented the Conseil du patronat du Quebec (Quebec Business Council) in this matter, which intervened in the case before the Supreme Court in order to protect the interests of its members.

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