Employer “Don’t”: Firing Employees for Attempting to Unionize

This post explores a major employer “don’t”: firing employees for attempting to unionize. A significant number, but not a majority, of Canadian workers are unionized. In accordance with the “Union Coverage in Canada, 2013” report by Statistics Canada, published June 11, 2014, a total of 4,735,367 workers were covered by collective agreements, an increase of 1.5% compared to 2012. This works out to a large number of companies with workers who are non-unionized, and, while unionization may not be desirable or feasible for those workers, particularly when they work for a small business, there are some employees (particularly workers whom work for larger retail or food service companies, and make minimum wage or work without benefits) which understandably become interested in the benefits of unionization.

However, the transition is not always supported by employers, and some employers have even gone so far as to dismiss the employees attempting to unionize.

Cases in Point

In early 2006, a group of workers at Sears Canada’s Belleville, Ontario location approached the United Food and Commercial Workers Canada (“UFCW”) Union, in the hopes of organizing a union at their store. On March 9, 2015, Sears Canada made the decision to “restructure” at the Belleville location, resulting in the terminations of approximately 100 employees. As UFCW reported on March 27, 2006, 60 of these employees were known to the union and the majority were identified as “union supporters”. The union subsequently made an interim application to the OLRB under Section 11 of the Labour Relations Act for reinstatement, on the basis that Sears had attempted to conceal its true intentions, to penalize the workers, under the guise of “restructuring”. The matter was resolved on June 16, 2000, as per a decision of the OLRB (UFCW Canada v. Sears Canada Inc., 2006 CanLII 20245 (ON LRB) and the UFCW reported that the workers were reinstated.

A similar instance occurred in Quebec when a group of Wal-Mart Jonquiere employees met with UFCW in August 2004 to organize a union. Unlike Sears Canada, Wal-Mart did not immediately jump to termination and did actually meet with the Union several times to negotiate a collective agreement. While unionization was achieved in 2004, Wal-Mart ultimately elected to terminate over 200 employees of the store in Jonquiere on May 6, 2005 for “business reasons”, resulting in the closing of the store, legal action and several appeals, ending up at the Supreme Court of Canada on December 6, 2014(United Food and Commercial Workers, Local 503 v. Wal Mart Canada Corp., 2014 SCC 45, [2014] 2 S.C.R. 323). When the matter proceeded to arbitration, Arbitrator Jean- Guy Menard found Wal-Mart in violation of Section 59 of the Quebec Labour Code for its actions in terminating the employees during the unionization process. The Arbitrator’s decision upheld at the Superior Court on a motion for judicial review, then dismissed by the Quebec Court of Appeal in December 2013, however, the Supreme Court of Canada saw merit in the case and decided to uphold the arbitrator’s award on the basis that the employer violated the Code.

The decisions above demonstrate that an employer should tread carefully when confronted with a group of employees who are attempting to unionize. Employers who react in a rash manner and jump to severe dismissal or termination may expose themselves to liability, so it’s best to consult with an Employment Lawyer before proceeding with such actions.

If you are a non-unionized employee who has been wrongfully treated due to your actions in trying to organize a union, or have been similarly treated due to another action, such as filing a complaint with your Human Resources Department or attempting to enforce your rights, you may have a legal remedy available to you.

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