Perhaps because of the increased press directed to union conflicts, or perhaps due solely to a misunderstanding of the employment relationship, many HR professionals perceive that they have the right to suspend an employee based on some perceived or actual misconduct by that employee. However, while most union contracts do provide the right of suspension to the employer, there is no similar right available at common law.
While the right to suspend an employee for a few days may seem to be a useful and flexible means of discipline for misconduct that does not reach the level of cause, in the absence of a provision in either the Employment Contract or Employment Policy Manual, employers do not have an inherent right to do so. While a union contract may in fact provide for suspension and recall rights, the common law does not do so. In fact, suspension without pay may constitute a repudiation of the employment agreement. Absent sufficient cause, the suspended employee will have a potential claim for wrongful dismissal. For example, in a leading case confirmed by the Ontario Court of Appeal, a fourteen-year employee was suspended without pay for failing to ensure that a trade show booth was delivered on time. The employee sued for constructive dismissal. The late Justice Echlin, a prominent employment lawyer and leading judge on employment issues, started his analysis based on the principle that, in the absence of an express or implied term in the Employment Contract or Employment Manual permitting such suspension, an employer does not have the right to suspend an employee without pay. While the law does recognize the right of an employer to discipline an employee for improper conduct, such discipline cannot go so far as to sever the underlying employment relationship. Where the improper conduct is so severe as to constitute cause for dismissal, it is of course open to the employer to choose a period of suspension in place of dismissal. Similarly, if the employer chooses to suspend with pay, it will be harder for the employee to successfully argue that she had been constructively dismissed.
A material change in an employee’s duties can also ground a claim for constructive dismissal. However, if the employee’s compensation and responsibilities are similar, it will also be difficult to prove a constructive dismissal.
One way to ensure the right of an employer to suspend an employee is to include it either in the Employment Contract or the company’s Employment Policy Manual. Numerous cases in Ontario have held that where the suspension is imposed in accordance with the contract or policy manual, the suspension will not necessarily constitute constructive dismissal.
In deciding whether to uphold the right to suspend, the courts have often looked to the question of whether the employee is given the right, whether in the contract or policy manual, to challenge the suspension to someone other than the manager who imposed it. Usually, larger companies deal with such challenges through the Human Resources Department. As Justice Echlin put it in one case “The supervisor imposing the discipline must not be permitted to be the sole judge, jury and executioner.” Therefore, companies should have formal policies in place dictating how such challenges to suspensions will be handled.
Where an employer wants to avoid the complexities of suspensions, it will on occasion attempt to make the employee’s work life so unpleasant that the employee quits, thereby obviating the need for a suspension. However, courts will examine the activities of the employer in such a case and may find a constructive dismissal. Employers cannot impose a suspension in such cases where the alleged cause justifies neither a dismissal nor a suspension. Finally, in determining whether a suspension would have been a more appropriate remedy than a termination, the courts will rely on the principle of proportionality expressed in numerous prior court decisions. The court will weigh the alleged conduct against the severity of the punishment. For example, in one very recent case, the court held that where employees had lifted a handicapped employee in his wheelchair on a forklift in order to attend a meeting, this was not such a serious incidence of misconduct so as to justify summary dismissal without warning. Rather, a suspension for a brief period would have been more appropriate.
As always, a clear and well considered Employment Policy Manual will go a long way to protecting employers in such circumstances. Such policies will set out the circumstances in which suspension versus termination is to be imposed. They will also set out the means by which such action can be challenged by the employee. Suffice it to say that a properly worded manual may save the employer untold thousands in legal fees.
Garfinkle, Biderman LLP
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