Canada: Quebec Court Upholds Decision That Dismissing A Cashier Who Told Customer To Shop At Cheaper Wal-Mart Was Justified

Last Updated: January 10 2017
Article by Marty Rabinovitch

A Quebec grocery store cashier who suggested to a customer that he shop at a nearby Wal-Mart for lower prices was summarily dismissed by the store's owner for "disloyal conduct amounting to a breach of trust".

The dismissal, which was grieved by the employee's union, was found to be justified by an arbitrator.  The Quebec Superior Court later found the arbitrator's decision was reasonable.

Nancy Beaulieu, an 18-year employee of the Provigo grocery store in St-Michel-des-Saints, in an unfortunate circumstance, made the comment at issue to a customer whose spouse was related to the store-owner, Danielle St-Georges. The spouse then brought the comments to the attention of Ms. St-Georges, who later took action against Ms. Beaulieu.

In response to the incident, Ms. St-Georges requested to meet with Ms. Beaulieu and her union representative, but Ms. Beaulieu declined since her union representative was on holiday.  Ms. St-Georges made further requests for a meeting but no response was received.

Ms. Beaulieu was suspended without pay pending an investigation, and then summarily dismissed.

The reason for Ms. Beaulieu's dismissal was "disloyal conduct amounting to a breach of trust".  In employment law terms, a "breach of trust" can include a wide array of misconduct that can compromise an employer's interests.  The duty of loyalty, on the other hand, is a fundamental part of the employment relationship and places an implied obligation on employees to act in the best interests of the employer. This duty requires employees not to act in a way that places an employer in harm's way or risks the interests of the employer.

In the course of investigating this incident, it was discovered that a similar incident involving Ms. Beaulieu may have occurred in 2011.  According to a department head at the Provigo grocery store, Ms. Beaulieu had allegedly remarked to a customer that the item they were purchasing was 30 cents cheaper at a Provigo competitor.  Ms. Beaulieu denied this allegation.

In his decision, the arbitrator found that Ms. Beaulieu had committed an act of disloyalty amounting to serious misconduct, and therefore her dismissal was a just and proportionate disciplinary response.

The arbitrator found aggravating factors that justified Ms. Beaulieu's dismissal—the fact that Ms. Beaulieu was in a position of trust with her employer, that she had made previous comments in 2011, and that her employer was at a competitive disadvantage to superstores like Wal-Mart because of the generous working conditions enjoyed by Provigo's employees compared to Wal-Mart's non-unionized workplace.

The arbitrator also considered the mitigating circumstances in his decision—that Ms. Beaulieu had been an employee of this grocery store for 18 years without any disciplinary history.

In an application for judicial review by the Quebec Superior Court, Ms. Beaulieu's union raised the issue of whether the arbitrator could rely on the fact that Ms. Beaulieu had made similar comments back in 2011 as an aggravating factor.  This is because two years had passed since the alleged incident and she was never disciplined for this action.  However, the Court dismissed this argument, finding that the manager(s) who had disciplinary authority over the employee may not have been aware of the incident at the time in 2011, and presumably, may have disciplined her had they known about the incident.

The Quebec Superior Court eventually upheld the arbitrator's decision upon judicial review.  "It's unthinkable that a cashier serving a client, at the time of payment, tell him that certain products he's buying are cheaper at a competitor," the judge said. "It's not behaviour recommended or approved by the employer."

Despite this decision, the issue has not been put to rest.  In a recent development, the Quebec Court of Appeal granted leave to Ms. Beaulieu to appeal the Superior Court's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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