Canadian Labour Reporter

July 31, 2017

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS manager that he was looking for a new job and wanted to change to part-time status. Safeway's hu- man resources department ap- proved Polini's request effective June 28. Polini also announced at a staff meeting that he was taking anoth- er job as a general clerk at the Ital- ian Centre, a new store that sold specialized imported foods from Italy and other countries, which was opening at a nearby location that had previously been a Sobey's grocery store. On June 24, Polini informed Safeway that he had started work- ing at the Italian Centre and he submitted a request that he not be scheduled for Sundays in July. Af- ter his vacation, he started work- ing full-time at the Italian Centre and wasn't scheduled for any days in July by Safeway. However, Safeway's business relied on part-time employees, who were required to be available at least three days per week plus Saturdays and Sundays. Polini's manager discussed the matter with the human resources advisor and they agreed to leave it alone. On July 27, Polini submitted a request to not be scheduled for any Sundays in August. Later, his manager raised concerns about a conflict of interest, telling Polini if he continued to work at the Italian Centre, he would be terminated. Polini contacted his union rep- resentative, who then contacted Safeway's HR department. HR confirmed that Safeway believed Polini was in a conflict of interest as long as he was working for both Safeway and the Italian Centre. Safeway's labour relations de- partment confirmed that both stores sold similar or sometimes the same product, which was a conflict of interest under Safe- way's policy. Safeway's conflict-of-interest policies stated that "any outside activity, such as additional em- ployment or self-employment, must be kept separate from and not conflict with your work at Safeway." In addition, it said "you should not take work which competes with Safeway, provides any com- modity or service which Safeway provides, or deprives Safeway of business." Given the large number of part- time employees Safeway had, it was fairly common for employees to have other jobs. Generally, this wasn't an issue unless the other job was with a competitor, which increased the risk an employee could disclose confidential infor- mation such as upcoming spe- cials, sales projections and mar- keting items. A labour relations manager investigated the Italian Centre in person and online and discovered it had similar grocery depart- ments as Safeway and sold some of the same products, including some brand overlap. It wasn't a full grocery store and didn't have a pharmacy like Safeway, but there was enough similarity for Safeway to determine it was a competitor and Polini's position with it was a conflict of interest. Safeway terminated Polini's employment on July 31 for violat- ing its confidentiality and conflict -of-interest policy. The union, the United Food and Commercial Workers' Union (UFCW), grieved the dismissal, and argued that the Italian Cen- tre's focus was different from Safeway and it wasn't a competi- tor. It also argued that the infor- mation Polini had was generally used by department heads and he had no interest in disclosing it. UFCW also said Safeway didn't consistently enforce its policy, pointing to an employee at anoth- er Safeway who was allowed by his manager to work at another Ital- ian Centre location. Arbitrator Phyllis Smith noted the importance for part-time workers to be able to support themselves and their families with other work outside of Safeway. However, she also accepted that Safeway faced "very real com- petitive pressures" in the grocery industry and having a policy that protects the confidentiality of in- formation and the loyalty of em- ployees was reasonable. Smith found the policy pro- hibiting work with any enterprise that competes with Safeway might be too broad, but Safeway made it more reasonable in practice by analyzing the circumstances on a case-by-case basis rather than en- forcing it "literally." This analysis including the primary function of the new employer, the employee's role in the new position, and the employee's role with Safeway, and it was intended to assess how much risk there was, said Smith. Smith determined that Safe- way's analysis represented "an appropriate balance in that it re- duces the risk of the advertent or inadvertent sharing of confiden- tial information, without unduly restricting the right of employees to seek other positions." There was an opportunity for Polini to work in a similar position for the Italian Centre, but Safeway determined there was a risk to its confidential information and business — a reasonable conclu- sion since the Italian Centre was the size of a small Safeway store and sold grocery products, many which were similar or the same as Safeway's offerings. Even though it might not be a big competitor and UFCW ar- gued it was a niche store, Smith found it was still a director com- petitor. "Given the evidence before me, I cannot find that Safeway's con- clusions respecting the similar roles and functions and the risk of sharing existed, even if inad- vertently, are unreasonable," said Smith. "That risk in enhanced because (Polini) has a full-time position with the Italian Centre and there- fore spends many more hours there than he will at Safeway, which provides more opportunity for accidental shop-floor discus- sion." In addition, Smith found the other instance of a Safeway em- ployee being allowed to work at an Italian Centre store wasn't compa- rable, since the company's labour relations department hadn't been aware of the situation. UFCW's grievance was dis- missed. For more information see: • Sobey's – Safeway Operations (Provincial) and UFCW, Local 401 (Polini), Re, 2016 Carswel- lAlta 2256 (Alta. Arb.). < Safeway worker pg. 1 'Accidental shop-floor discussion' possible, finds arbitrator Photo: racorn (Shutterstock)

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