Constructive Dismissal

The Suspension Cases – Introduction

The immediate issue of the implied right to suspend is one required to satisfy the first test of the Potter analysis, namely, what are the direct and implied terms of the employment relationship. There would likely be little doubt that should the employer not have this right, the second step of this test, that there has been a substantive breach, one to the prejudice of the employee, will have been met.

There are various types of suspension to be considered. The first is “administrative”, which is often used to support an investigation of workplace wrongdoing. The second is a disciplinary suspension. Each form of suspension may be with or without pay, although this would be unusual for an administrative suspension.

Right of Suspension Pending the Investigation

The statement in Geluch, referenced in the due process review, advocated that the employer should have the right to suspend the employee with pay pending the investigation. Allegations had been made against Geluch of sexual harassment. The trial judge stated that the defendant should have placed the plaintiff on an administrative suspension while it investigated the complaint:

When the Board learned about the allegations of Anne Taylor, it should have directed that an independent person be retained to investigate the matter fully.  Instead, the Board chose to protect a former employee rather than confront its senior executive and afford him an opportunity to respond.  Mr. Geluch should have been suspended with pay pending a full investigation and given an opportunity to respond to the allegations.

The decision went on to state that where such investigative steps are taken, procedural safeguards should be in place.

Depending on the context, it may be possible to imply such a term into the employment relationship.

There are three significant modern decisions dealing with this issue of whether the employer has the implied right of suspension. These cases make these issues:

Was the suspension disciplinary or administrative?

If disciplinary, was there just cause for termination in any event?

If administrative, was in effected in good faith and for a legitimate business purpose?

In either event, was the suspension with or without pay?

Upon which party is the obligation to show a legitimate business purpose?

Typically, in the course of a workplace investigation, a suspension will be an administrative one and not disciplinary.

The question of the right of the employer to suspend usually arises in a claim for constructive dismissal. This issue is then considered in the application of the first branch of the constructive dismissal test as set out in the 2015 Supreme Court decision of Potter, discussed below.