What is Workplace Suspension

Work suspension occurs when an employer relieves an employee of their duties, but the employment relationship persists. During a suspension, an employee can either be paid or unpaid. In 2018, after being suspended improperly by his employer, an employee was awarded $100,000 in punitive damages (Filice v Complex Services Inc., 2018 ONCA 625). This article gives an overview of what is workplace suspension on Ontario and legal rights of employees.

Reasons Why Employers Suspend Workers

Generally, an employer may suspend an employee either for administrative or disciplinary reasons. A typical reason for administrative suspension is that the employee is being investigated for workplace misconduct or under criminal proceeding. For example, Filice involves a casino employee suspected of theft. On the other hand, disciplinary suspension often occurs as a punitive measure for an employee’s misconduct, or as part of a progressive disciplinary process to address poor performance at work.

Suspended Employee Rights

Right to Appeal

After receiving the decision of suspension, if the employee is deprived of an opportunity to appeal this decision, courts will likely find that this suspension has constituted a constructive dismissal. An employee will thus be entitled to a notice for termination, and will be able to claim entitlements and benefits when the notice is not given properly.

Right to Payment

Regarding an administrative suspension, the employee will generally be entitled to payment if the employee is available and willing to work, unless the employee has waived this right in their employment contract. The Supreme Court in Cabiakman v Industrial Alliance Life Insurance Co., 2004 SCC 55 stated that an administrative suspension can only be carried out when it is necessary to protect the legitimate business interest, is for a relatively short time period for a fixed term, and that the employer must be acting in good faith. In Filice, the employer suspended the employee without pay under no justification. Therefore, the court held that it constituted constructive dismissal, and the employee was awarded damages.

Likewise, during a disciplinary suspension, an employee is likely also entitled to be paid unless they expressly waived this right in their employment contract.

Express vs. Implied Suspension

In general, an employer does not have the right to resort to either administrative or disciplinary suspension unless the employment contract provides them with such a right. An employer’s authority to suspend an employee can either be express or implied in the employment contract.

An employment contract may expressly contain a clause suggesting that employees may be subject to suspension under applicable circumstances, or referring to a policy book which include such provisions.  Alternatively, an employer may possess an implied authority to suspend an employee. The Supreme Court case Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 demonstrated that the threshold is lower for an employer to establish that there are implied grounds for suspension for administrative reasons than that for disciplinary reasons. However, there shall be a business justification. In Potter, the criteria in Cabiakman for business justification was upheld, namely legitimate business reasons, the employer’s good faith, the suspension’s duration and that the suspension shall generally be with pay.

In conclusion, it is important for employees to understand their rights regarding suspension, and that an unlawful suspension can constitute constructive dismissal. If you are an employee who has been improperly suspended and would like to file a constructive claim, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.