Workplace suspensions are always difficult to deal with for both employers and employees. When we talk about workplace suspensions, there is always confusion amongst employers as to what their rights and obligations are in the event that they wish to suspend one of their employees. Suspending an employee from work is always a very difficult decision and it can carry many risks for employers and damage the employment relationship if not handled with utmost care.
The Supreme Court of Canada in Potter v New Brunswick Legal Aid Services, 2015 SCC 10 ruled that employers do not have the sole discretion to suspend an employee indefinitely, there are certain cases where a suspension at work is permitted.
What is a work suspension?
A work suspension is a set period in which the employer relieves an employee from their work duties, on some occasions the employer does not pay the employee their wages during the set period.
When is a workplace suspension permitted?
An employer may assume they have the right to suspend their employees in the event that they feel it is reasonable and necessary, an example of why an employer may suspend an employee is to discipline due to workplace behavior. However, most employers do not have the right to suspend their employees from their work, even if there is misconduct unless this right to suspend the employee is detailed in the contract signed with the employee.
The authority to suspend an employee, the details of how the suspension will be handled, and under what circumstances this measure will be put in place should be included in the employment agreement. If this information is not detailed in the contract, employers risk being accused of constructive dismissal if they suspend an employee, especially if they do so without pay.
Sometimes employers stop their employees from working for a while or they reduce their hours by
- Sending them home before their shift ends
- Telling them not to come to work for a period of time
- Not giving them shifts or hours of work
As an employee being suspended from work is a stressful situation because by not working you lose money. Keep in mind that some collective agreements or employment contracts give the employers the right to do this, but if your agreement does not grant the employer the authority to suspend you, this could result in a constructive dismissal.
Workplace suspension falls under 2 categories, administrative and disciplinary suspensions
- Administrative suspension: these types of suspensions are most common in circumstances where an employee is accused of workplace misconduct that requires further investigation. In order to properly investigate the incident, the employee is removed from the workplace.
The requirements set out in Cabiakman v. Industrial Alliance Life Insurance Co. indicate that an administrative suspension:
- Must be necessary to protect the legitimate interest of the business
- The employer is required to act in good faith
- Must be as short as possible
- Must be paid except for an exceptional circumstance
- Disciplinary suspension: may be used under limited circumstances as part of a process of progressive discipline to address workplace misconduct. Both administrative suspensions along with disciplinary suspensions must be clearly and comprehensively detailed in the employment contract. Disciplinary suspensions may only be unpaid if there is an express clause in the employment contract.
Express suspension vs implied suspension
- Express suspension: when the employment contract expressly contains a clause indicating that employees may be suspended under certain circumstances or referring to a policy book which includes the provisions under which a suspension is allowed.
- Implied suspension: employers may have implied authority to suspend an employee. The Supreme Court case Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10 indicated that the threshold is lower for an employer to establish the implied grounds for suspending an employee for administrative reasons than it is for disciplinary reasons. However, there must be a business justification.
It is important to understand that communication is key when it comes to an employment relationship, with this being said employees should keep in mind that if they determine an employee must be suspended, they should inform them about the reason as to why they are being suspended, the length of the suspension and what is the purpose and expected outcome of the suspension. Employers should allow employees to ask any questions they may have. Most importantly when it comes to workplace suspensions, employers must always have a well-drafted employment contract that gives them the right to suspend an employee. It must properly set out the conditions under which suspension will be put in force. All workplace suspensions should be handled with the utmost care, employers must keep in mind that suspensions must be reasonable and that the burden of proof falls on them.
Employees should understand their rights when it comes to workplace suspensions and must remember that an unlawful suspension may constitute a constructive dismissal. It is important for employees to review their employment agreements and see if their employer has the right to suspend them and understand under what circumstances this suspension is allowed. If employees have questions, they should address all their concerns with their employer.
If you are an employee and have questions or have been suspended at work, contact our experienced workplace lawyers today. We can help with examining the events that led up to your suspension. Reviewing and understanding the events that led to your work 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 our experienced workplace lawyers 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.