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No Reinstatement in Wal-Mart Closure Case
December 16, 2009

The Supreme Court of Canada recently determined that it would not order the reinstatement of employees dismissed from a Wal-Mart store in Jonquière, Quebec when the store closed after becoming unionized.

The Jonquière store was the first Wal-Mart in North America to successfully unionize. Six months after the Union was certified, Wal-Mart announced the store would close. The Union and employees initiated several proceedings arising out of the closure, which the Union alleged was based on Wal-Mart’s strategy of hindrance, intimidation and union-busting. One of the employees sought reinstatement to his employment. If successful, this would effectively force the reopening of the store.

The Quebec Code contains a reverse onus provision, which applies to the reinstatement remedy and presumes that a dismissed employee was terminated for anti-union reasons. A dismissed employee will be reinstated unless the employer can demonstrate that it had a good and sufficient reason for the dismissal.

The Court held that a workplace closure will always constitute a good and sufficient reason for the dismissal, regardless of the motivation behind the closure. The Court reasoned that, because there is no legislation in Quebec obliging an employer to remain in business, a workplace may be closed at any time and for any reason. While employees can obtain other remedies against employers who close a business for anti-union reasons under the unfair labour practice provisions of the Code, reinstatement is not an available remedy because it requires an ongoing workplace.

In arguing the case, the Union pointed to labour relations legislation in other provinces in an effort to convince the Court that reinstatement should be used to force the store to re-open. The Court observed that the balance struck between competing rights under labour relations laws will vary from province to province. As a result, the outcome of a similar case may vary, depending on the content of the applicable legislative scheme.

Plourde v. Wal-Mart Canada Corp.