Wal-Mart Update

Our ever-hospitable friend at Doorey's Workplace Blog has taken up the invitation to shed more light on the pending Canadian Supreme Court case involving Wal-Mart's closing of a store that recently voted to unionize that we posted about yesterday.  Not surprisingly, his post is very informative; here's a taste:

The main facts for the purpose of the law cases are: (1) the union was certified by a statutory card-check in Sept. 2004; (2) the parties began bargaining, but bargaining stalled; (3) the union applied for first contract arbitration under the Quebec labour legislation, and on Feb. 9, 2005, the Ministry of Labour appointed the arbitrator; (4) that same day, Wal-mart announced it was permanently closing the store and terminating all of the employees; (5) in late April, 2005, all of the employees were dismissed and the store was closed. . . .

In both [Wal-Mart cases before the Court], the dismissed employees argued that the store closure and the dismissals were in response to unionization, and that this violated the employees’ rights under s. 15 of the [Quebec Labour] Code, which prohibits a dismissal in response to the lawful exercise of union activities.  They relied on a reverse onus provision in the Code, which provides as follows:

17. If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code, there is a simple presumption in his favour that the sanction was imposed on him or the action was taken against him because he exercised such right, and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient reason.

Therefore, a key issue in the cases is whether a permanent closure is “a good and sufficient reason” for the dismissals.  If it is, then Wal-mart will have successfuly rebutted the presumption.

The Supreme Court has agreed in an earlier case . . . that Quebec labour law does not prohibit the closure of a business, even if the reason for the closure is based on “socially reprehensible considerations” . . . [s]o, it came as a bit of surprise that the Quebec labour board found in favour of the employees in one of the two cases (Johanne Desbiens).  . . . 

The Supreme Court has agreed to hear appeals from both cases, presumably on a consolidated basis.  The case has some intrigue in light of recent SCC decisions.  Firstly, the Court ruled recently that the Canadian Charter of Rights protects a right to unionize and a (limited) right to collective bargaining. One question raised in these cases was whether an interpretation of s. 17 that permits employers to undermine the exercise of these fundamental rights by simply closing the workplace and firing everyone is consistent with the new, broader interpretation of freedom of association crafted by the SCC. 

Interesting stuff.  I find the contrast between the statutory provision, which appears to give far more protection than the NLRA, and the caselaw, which sounds a lot like the American Darlington rule, particularly fascinating.

Definitely read Doorey's full post--it's worth it (and includes a request for Paul to translate).

-JH