Constructive Dismissal

Summary of Suspension Issues

The synthesis of these cases then is as follows. To succeed on the argument of the administrative suspension as an implied term, it must be shown that:

  1. The Employer is acting in good faith;
  2. There is a legitimate business reason, which is reviewed at the time of the suspension;
  3. The suspension is for a short term;
  4. The suspension is effected with pay.
  5. The above two criteria are intended to reflect that the suspension has minimal impact upon the employee.
  6. Given the above, the law may imply the right to effect a suspension as an implied term.
  7. In exceptional circumstances, the onus of proof being on the employer, the suspension may be without pay.
  8. Should the contract of employment allow such a suspension without pay, it must be effected in good faith.

These issues will answer the question of whether there is an implied right to suspend.

Where such an implied right is found, or expressly contracted, the employer must be then further prepared to show its actions were justified. The factors to be considered will include:

  1. Is there a sufficient connection between the alleged offensive conduct and the kind of employment held;
  2. The actual nature of the charges;
  3. Whether there are reasonable grounds to believe that the status quo may, even temporarily, be prejudicial to the employer's interest; and
  4. Whether there are immediate and significant adverse effects that cannot be offset by other actions such as a temporary assignment to another position.

If the suspension is disciplinary:

  1. It is unlikely a court will imply into the employment relationship an implied term to invoke an unpaid disciplinary suspension.

If there is otherwise just cause for termination, the same reasons may be used to effect the disciplinary suspension