Constructive Dismissal

Disciplinary Suspension

Disciplinary Suspension Carscallen 2005

The plaintiff in this case was suspended due to the content of an email exchange with her immediate superior. She was not told whether the suspension was to be paid or otherwise, nor the duration of it. One week later she was, in addition to the suspension, demoted to the position of Marketing Manager, her flex hours were removed, she lost her office and was assigned to share a cubicle with a subordinate. She was not paid for the week of suspension. 1

Echlin, J. reviewed the case law on a disciplinary and administrative suspensions. He concluded that the common law did not provide an implied term to suspend without pay as a term of discipline:

Nevertheless, the vast majority of cases in this area have determined that a disciplinary suspension may amount to a constructive dismissal

That being said, he also noted that, given just cause to dismiss, the employer may choose instead to suspend in this manner, as opposed to terminating employment.

However, he also noted that an administrative suspension with pay may take a different turn. In that instance, he stated that it is “more likely” that a court will find against a constructive dismissal claim, referring to MacKay. While this may be so, the fact that the suspension in MacKay was with pay was only one factor assessed by the trial judge. The test is not as straightforward as this passage suggests.