The Decision to Place Alleged Offender on Admin Leave

 

Administrative Leave During Workplace Investigations: Ontario Arbitration Decision Provides Important Guidance on Investigative Suspensions

The Ontario labour arbitration decision in Dryden Police Service Senior Officers’ Association v Dryden Police Services Board provides important guidance on the circumstances in which an employer may properly remove an employee from the workplace pending investigation.

The case involved Inspector Ann Tkachyk, a senior police officer with the Dryden Police Service, who was placed on paid administrative leave following several complaints alleging bullying, favouritism, harassment, and inappropriate relationships with subordinate officers.

The arbitration focused not upon whether the allegations themselves were true, but rather upon whether the employer exercised its management rights reasonably in:

  • placing the Grievor on leave;
  • maintaining that leave for an extended period;
  • and handling the investigative process generally.

The Grievor remained off work for approximately 17 months while the investigation proceeded before the Ontario Civilian Police Commission.

Importantly, the arbitrator emphasized that administrative leave is not automatically justified merely because serious allegations have been made.

The decision repeatedly stresses that the employer must undertake an actual assessment of workplace risk.

The arbitrator adopted the principles established in the arbitral decision Ontario Jockey Club and subsequent labour arbitration jurisprudence dealing with investigative suspensions.

Those principles include:

  • the employer must demonstrate that the employee’s continued presence poses a reasonably serious and immediate risk to legitimate workplace interests;
  • the employer must conduct a genuine investigation and assessment of risk;
  • the employer must consider alternatives short of removal from the workplace;
  • and the employer has a continuing obligation to reassess whether continued leave remains justified as circumstances evolve.

The arbitrator accepted that investigative leave may sometimes be appropriate in circumstances involving:

  • operational concerns;
  • workplace safety;
  • interference with witnesses;
  • reputational concerns;
  • or integrity of the investigative process.

However, the decision warns against a reflexive “suspend first, investigate later” approach.

A particularly significant aspect of the case was that:

  • the Grievor initially remained at work after the first complaint;
  • some complainants were disgruntled former employees;
  • some allegations were historical;
  • and the employer already possessed information potentially undermining portions of the allegations.

The arbitrator found that the employer failed to continually reassess whether maintaining the leave remained necessary.

The award also recognized the very substantial reputational and psychological harm which may result from prolonged investigative leave. The Grievor was excluded from workplace events, denied access to her office, excluded from ceremonial functions, and effectively prevented from obtaining closure at the end of her policing career.

The arbitrator concluded that the employer exercised its management rights unreasonably by:

  • keeping the Grievor on leave indefinitely without adequate reassessment;
  • failing to balance risk against the impact upon the Grievor;
  • and treating the Grievor in a manner inconsistent with a truly non-disciplinary leave.

The decision is particularly noteworthy because the jurisprudence relied upon by the arbitrator was overwhelmingly labour arbitration jurisprudence arising in unionized environments, particularly:

The arbitrator did not substantially rely upon common law wrongful dismissal authorities concerning administrative suspension.

That distinction is important.

While there are Supreme Court of Canada decisions dealing generally with administrative suspension in the non-union context, there remains relatively limited common law jurisprudence dealing specifically with:

  • prolonged investigative leave;
  • ongoing reassessment obligations;
  • reputational harm during investigations;
  • and the requirement to consider alternatives to removal from the workplace.

For that reason, this decision may become influential beyond the labour arbitration context.

The award provides a detailed and sophisticated analysis of:

  • proportionality;
  • procedural fairness;
  • reputational harm;
  • psychological consequences of investigative leave;
  • and the employer’s continuing obligation to reassess workplace risk.

As workplace investigations continue to expand across both unionized and non-unionized workplaces, it is likely that courts in common law employment cases will increasingly look to arbitral jurisprudence of this nature for guidance.

The decision therefore represents an important development in Canadian workplace investigation law and may prove influential in shaping future common law treatment of investigative suspensions and administrative leave.