18 May Workplace Suspensions in Canada
When it comes to workplace suspensions, there is often a lot of confusion among employers as to their rights and obligations should they wish to suspend one of their employees. This article is intended to give employers a better understanding of if, when and how they can suspend an employee.
When can you suspend an employee?
As an employer, you might assume that you have the right to suspend your employees should you feel doing so is reasonable and necessary (for example, as a means of progressive discipline to address workplace misbehaviour). However, generally speaking, most employers do not have the right to suspend their employees from work – even for bad behaviour – unless this right is explicitly detailed in their employee’s contract.
The authority to suspend an employee as well as the details of how a suspension will be handled and under what circumstances it will be administered should be included in the terms of the employment contract. Otherwise, employers will risk being accused of constructive dismissal in the event that they suspend and employee (particularly if they do so without pay).
Workplace suspensions broadly fall into one of two categories: Administrative and Disciplinary suspensions.
Administrative suspensions are most commonly used when an employee is accused of workplace misconduct that requires further investigation. Removing an employee from the workplace for a reasonable and temporary period of time in order to properly investigate an incident may be acceptable under certain circumstances.
According to the requirements set out in Cabiakman v. Industrial Alliance Life Insurance Co. an administrative suspension:
- Must be necessary to protect legitimate business interests
- Requires the employer to act in good faith
- Must last as short a time as possible
Must be paid except for truly exceptional circumstance
A disciplinary suspension may, under limited circumstances, be used as part of a process of progressive discipline to address workplace misconduct. As with an administrative suspension, an employer’s right to use this type of suspension should be clearly and comprehensively detailed in the employment contract. Disciplinary suspensions can only be unpaid if there is an express clause in the employment agreement allowing for an unpaid suspension and even then, an unpaid disciplinary suspension can still land an employer in hot water.
Do suspensions need to be paid?
As mentioned above, under most circumstances, yes, workplace suspensions need to be paid.
Suspending an employee without pay will be considered constructive dismissal by the courts is most situations. Requiring an employee to stay home without pay constitutes a unilateral and fundamental change to the employment relationship and is therefore a breach of contract and legitimate grounds to claim constructive dismissal.
Furthermore, just because a suspension is paid doesn’t mean an employer will necessarily be in the clear from a court’s perspective. Courts don’t just care about an employee’s loss of benefit (i.e. pay) in the event that they are suspended from work. They also consider an employee’s sense of injury to ‘identity and self-worth’ when determining if a workplace suspension was reasonable and acceptable.
Key Takeaways for Employers
Suspending an employee from work is a difficult decision to make and one that carries many risks for employers. Suspending an employee is a drastic measure that can permanently impact an employment relationship if not handled with the utmost care.
As with most workplace matters: communication is key. As an employer, should you determine that it is necessary for you to suspend an employee, it is your responsibility keep your employee informed of the reason for their suspension, it’s length and purpose. You should give them time to process the information and ask questions.
Above all, you will need to have a well-drafted employment contract that explicitly gives you the right to suspend an employee and sets out the conditions under which this tool may be used and what its implementation will look like.
In all cases, suspensions must be reasonable and justified and the burden of proof to demonstrate this rests with the employer. Therefore, all workplace suspensions should be handled with the greatest care. You should work with a respected employment lawyer when considering any kind of suspension for an employee to ensure that the process will lead to a productive outcome.