Workplace Wire

In an extraordinary decision, the Ontario Superior Court of Justice has just granted an interlocutory injunction prohibiting Loblaws Companies Limited and Loblaws Supermarkets Limited (“Loblaws”) from maintaining minimum scheduling requirements for part-time employees, pending resolution of outstanding grievance arbitrations on the issue. See: Sawyer v. Loblaws, 2011 ONSC 7251.

The decision is particularly troublesome from an employer advocate’s perspective for many reasons, not all of which can be discussed in a short blog. But let’s briefly consider a few.

Normally, this type of dispute is subject to the adage “work now, grieve later” and is to be resolved by a labour arbitrator who, by statute and collective agreement, generally has exclusive jurisdiction over the dispute and recognized expertise. Further, arbitration can be expedited (as indeed is happening in this case) and arbitrators can make interim orders (short of reinstating an employee on an interim basis). In this case, however, the union has bypassed the arbitration mechanism and obtained interim relief in a parallel forum.

Also troubling is the Court’s finding that the union was able to demonstrate that its members would suffer “irreparable harm” if the injunction were not granted. Showing irreparable harm is a prerequisite under the law of injunctions and it is generally understood that where a party may be compensated in damages following a trial, interim injunctive relief should be denied.

However, the Court noted that a number of employees alleged that they had lost their jobs (or risked losing their jobs) because of Loblaws’ insistence that they work assigned schedules. These employees said that they had to quit Loblaws in order to keep a second job, spend time with their families or attend to such things as child care obligations. Having this in mind, the Court determined that a grievor’s potential job loss or loss of control over a schedule to ensure care can constitute “irreparable harm”. However, in the same breath the Court recognized that a potential job loss “may be compensated for later in damages”. Doesn’t that sound a bit contradictory? How can something be “irreparable harm” when it is recognized that it may be compensated in damages?

Another troubling aspect of this decision is that the Court agreed that not all employees stood to suffer irreparable harm, but only some employees, which the Court nonetheless found did not stop it from issuing a blanket-style injunction, instead of injunctions covering the unique circumstances of individual employees. Indeed, out of the hundreds of employees potentially involved, only a handful actually put evidence of their situation before the Court.

A key consideration of the Court appears to have been that at least a number of the potentially affected employees involved “individuals and families who are struggling week to week to meet expenses”. For the Court, this outweighed Loblaws’ concerns that it is heading into the Christmas season not knowing if it will be able to adequately staff its stores.

If this sort of ruling can happen in this sort of case, what is there to stop a union from successfully taking this route in other such cases? After all, many Canadian employees struggle to make ends meet and it is a hardship for any employee to have to chose between respecting assigned work schedules and other obligations such as family and second jobs.

The law of the unionized workplace has historically recognized that employers are allowed to make business decisions and implement them in order to maintain competitiveness and meet client needs, even if this results in an employee termination. When such decisions violate a collective agreement, employees can later be made whole through monetary compensation, reinstatement and other relief. However, if it is now the case that employers can be so easily forced to wait several months before implementing such things as chain-wide scheduling practices, we are indeed entering a new world of labour relations. Time will tell if this approach is the new normal or not.