Company had legitimate concerns about competition: Arbitrator
An Alberta arbitrator has dismissed a union’s challenge to a Safeway employee’s firing for conflict of interest, after the employee started a job at another grocery store while still employed by Safeway.
Nicola Polini, 56, was a general clerk at a Safeway grocery store in Calgary and he was hired in October 1987. He worked in various positions over the next 30 years, but most of the time he was a general clerk, working full-time hours.
In June 2015, Polini requested a transfer to restricted, part-time status when he came back from a vacation on July 6. He also mentioned to his manager that he was looking for a new job and wanted to change to part-time status. Safeway’s human resources department approved Polini’s request effective June 28.
Polini also announced at a staff meeting that he was taking another job as a general clerk at the Italian Centre, a new store that sold specialized imported foods from Italy and other countries, which was opening at a nearby location that had previously been a Sobey’s grocery store.
On June 24, Polini informed Safeway that he had started working at the Italian Centre and he submitted a request that he not be scheduled for Sundays in July. After his vacation, he started working full-time at the Italian Centre and wasn’t scheduled for any days in July by Safeway.
However, Safeway’s business relied on part-time employees, who were required to be available at least three days per week plus Saturdays and Sundays.
Polini’s manager discussed the matter with the human resources advisor and they agreed to leave it alone.
On July 27, Polini submitted a request to not be scheduled for any Sundays in August. Later, his manager raised concerns about a conflict of interest, telling Polini if he continued to work at the Italian Centre, he would be terminated.
Polini contacted his union representative, who then contacted Safeway’s HR department.
HR confirmed that Safeway believed Polini was in a conflict of interest as long as he was working for both Safeway and the Italian Centre.
Safeway’s labour relations department confirmed that both stores sold similar or sometimes the same product, which was a conflict of interest under Safeway’s policy.
Safeway’s conflict-of-interest policies stated that “any outside activity, such as additional employment or self-employment, must be kept separate from and not conflict with your work at Safeway.”
In addition, it said “you should not take work which competes with Safeway, provides any commodity or service which Safeway provides, or deprives Safeway of business.”
Given the large number of part-time employees Safeway had, it was fairly common for employees to have other jobs. Generally, this wasn’t an issue unless the other job was with a competitor, which increased the risk an employee could disclose confidential information such as upcoming specials, sales projections and marketing items.
A labour relations manager investigated the Italian Centre in person and online and discovered it had similar grocery departments as Safeway and sold some of the same products, including some brand overlap. It wasn’t a full grocery store and didn’t have a pharmacy like Safeway, but there was enough similarity for Safeway to determine it was a competitor and Polini’s position with it was a conflict of interest.
Safeway terminated Polini’s employment on July 31 for violating its confidentiality and conflict -of-interest policy.
The union, the United Food and Commercial Workers’ Union (UFCW), grieved the dismissal, and argued that the Italian Centre’s focus was different from Safeway and it wasn’t a competitor. It also argued that the information Polini had was generally used by department heads and he had no interest in disclosing it.
UFCW also said Safeway didn’t consistently enforce its policy, pointing to an employee at another Safeway who was allowed by his manager to work at another Italian Centre location.
Arbitrator Phyllis Smith noted the importance for part-time workers to be able to support themselves and their families with other work outside of Safeway. However, she also accepted that Safeway faced “very real competitive pressures” in the grocery industry and having a policy that protects the confidentiality of information and the loyalty of employees was reasonable.
Smith found the policy prohibiting work with any enterprise that competes with Safeway might be too broad, but Safeway made it more reasonable in practice by analyzing the circumstances on a case-by-case basis rather than enforcing it “literally.” This analysis including the primary function of the new employer, the employee’s role in the new position, and the employee’s role with Safeway, and it was intended to assess how much risk there was, said Smith.
Smith determined that Safeway’s analysis represented “an appropriate balance in that it reduces the risk of the advertent or inadvertent sharing of confidential information, without unduly restricting the right of employees to seek other positions.”
There was an opportunity for Polini to work in a similar position for the Italian Centre, but Safeway determined there was a risk to its confidential information and business — a reasonable conclusion since the Italian Centre was the size of a small Safeway store and sold grocery products, many which were similar or the same as Safeway’s offerings.
Even though it might not be a big competitor and UFCW argued it was a niche store, Smith found it was still a director competitor.
“Given the evidence before me, I cannot find that Safeway’s conclusions respecting the similar roles and functions and the risk of sharing existed, even if inadvertently, are unreasonable,” said Smith.
“That risk in enhanced because (Polini) has a full-time position with the Italian Centre and therefore spends many more hours there than he will at Safeway, which provides more opportunity for accidental shop-floor discussion.”
In addition, Smith found the other instance of a Safeway employee being allowed to work at an Italian Centre store wasn’t comparable, since the company’s labour relations department hadn’t been aware of the situation.
UFCW’s grievance was dismissed.
For more information see:
• Sobey’s – Safeway Operations (Provincial) and UFCW, Local 401 (Polini), Re, 2016 CarswellAlta 2256 (Alta. Arb.).
