Because of store closure, retailer doesn't have to prove terminations weren't retaliation for unionization
Former employees of a Wal-Mart store in Quebec have lost their battle against the retail giant, which closed the store shortly after employees unionized in 2005.
The workers, who took their case to the Supreme Court of Canada, argued the Bentonville, Ark.-based retailer killed their jobs after they exercised their Quebec and Charter right to organize and as such, demanded reinstatement.
However, in a 6-3 decision, the Supreme Court found Wal-Mart had shut its Jonquiere, Que., store permanently. Therefore, under Quebec's labour code it was not open to the employees to benefit from a provision of the code that puts the onus on the retailer to prove it didn't fire the employees in retaliation for unionization.
However, the employees could have used a different subsection of the code to examine the broader issue of why the store closed and if it closed as part of an anti-union strategy, found the court.
Justice Ian Binnie, writing for the majority, said it was up to the employees to prove Wal-Mart was engaged in unfair labour practices under a different section of the labour code, and seek a remedy, noting workers can't apply for reinstatement "where a workplace no longer exists."
The high court majority upheld an initial finding by the Quebec labour commission that the store closure was "genuine and permanent and that, in itself, according to a long line of cases (since 1981) is 'good and sufficient' reason...to justify the dismissal."
The Court said that in Quebec alone, the reverse onus provision does not apply to store closures. The dissenting justices viewed this as an overly technical interpretation of the law.
In her dissenting reasons, Justice Rosalie Abella said that the reverse onus provision, "is at the procedural core of the legislature's scheme to protect employees from unfair labour practices, and is one of labour law's most vaunted equity tools for redressing the evidentiary advantage held by employers."
The employee-friendly presumption in the law still stands and may apply in other cases, for example, where a workplace remains open but employees are fired for union activities.
The store, which had 190 workers in 2005, was located 250 kilometres north of Quebec City and closed following one of the first unionizations of Wal-Mart employees in North America.
Wal-Mart won the case in two lower courts in Quebec, which ruled a store cannot be forced to stay open against its will.
Wal-Mart argued it closed the Jonquiere store because it was already struggling financially when the United Food and Commercial Workers wanted the store to hire 30 more employees as part of the first collective agreement.
