Getting suspended at work is not an easy pill to swallow – here is what you need to know in the circumstances.
Employers have the right to discipline their employees where there is some act of misconduct that must be addressed. While it is not always available for an employer to terminate For Cause, some employers may choose to suspend the employee without pay.
While the Supreme Court of Canada in Potter v New Brunswick Legal Aid Services, 2015 SCC 10 ruled that employers do not have the unilateral authority (sole discretion) to suspend an employee indefinitely, there are certain cases where a suspension is allowed.
What is a Suspension?
Suspension is a set period during which the employer relieves an employee of their duties and, in some cases, does not pay their wages.
When is it allowed?
Employers have the right to suspend an employee with or without pay only if there is an express term in the contract allowing the employer to do so. In some cases, employers have the right to suspend even if there is not an express term in the contract (i.e. when there is an implied, or understanding) that suspension is an acceptable method of discipline.
One thing is certain: Employers do not have the right to suspend an employee without pay only because they “feel” it is warranted. Employers must be able to show that the suspension is a less severe disciplinary option than might otherwise be warranted or that all parties expected it to be a potential consequence for misconduct.
Express or Implied?
Provided there is no just cause, suspension must be the norm in the industry, or a form of discipline that the employee has agreed to, whether explicitly in the employment contract, or implicitly, by accepting it as a form of disciplinary action previously.
If there is no just cause to dismiss the employee, an employer’s ability to use an unpaid suspension depends on either the employment contract or the policies incorporated into it. For example, the inclusion of a clause stating that suspensions are an acceptable disciplinary action, or a statement to that fact in a policy book given to employees (provided the employee handbook is part of the employment contract), may permit the employer to use unpaid suspensions in appropriate situations.
Without just cause for dismissal or some form of contract or policy that explicitly allows for unpaid suspensions, an employer must be able to provide evidence that the use of disciplinary suspension as an acceptable way to correct misconduct is implied by the situation. This can be done by proving that the suspension fits to existing custom and usage, such as by showing it is a common disciplinary tool throughout their industry. Alternately, they might prove that it is being used in accord to the presumed intentions of both parties, such as by showing the employee had accepted unpaid suspensions on past occasions.
What if there is no Express or Implied term allowing suspension?
If the employer lacks just cause to dismiss an employee and there is no explicit or implied term to provide justification for suspending without pay, that employee may be allowed to consider the suspension to be a constructive dismissal, entitling the employee to compensation.
It is possible for an employer to suspend an employee outside of a disciplinary action. These suspensions, known as administrative suspensions, are usually done as a way for the employer to protect the interest of its business, customers and/or other employees. One of the more common examples of this kind of situation is when an employee is being charged with a crime that is linked to his or her employment.
The Courts have found that, lacking any statements that say otherwise, employers have the right to put their employees on administrative leave so long as doing so is justified by legitimate business reasons and that they are acting in good faith. An example is a suspension for an investigation (provided it is done in good faith).
That isn’t to say that all forms of administrative leave are reasonable. Each situation must be unique, and various factors, such as the length of the suspension, whether it was with or without pay, the duration of the suspension and if the employer properly communicated the reasons for the suspension to the employee must be considered. The analysis into a particular case is important to determine if the suspension is allowed or if it beings about a constructive dismissal scenario.
If you are an employee and have questions or have been suspended at work, contact us today. We can help with examining the events that led up to your suspension. Reviewing and understanding the events that led to your suspension can help in better determining what options you have available to you.
If you are an employer who wants to suspend an employee , contact us before doing so. An employee getting suspended at work is not easy and it is common for employees to consult a lawyer when that happens. Contact us before suspending an employee and we can help devise a plan that would allow you to do so safely.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (647)946-6440, or email firstname.lastname@example.org.