An administrative suspension can be
an effective tool for an employer to invoke when it needs to
temporarily remove an employee from the workplace. It is not
used without risk however. The Supreme Court of Canada
recently released its decision in Potter v. New
Brunswick (Legal Aid Services Commission) 2015 SCC 10, and
in it, the Court ruled that the administrative suspension
constituted a constructive dismissal.
Potter was the Executive Director
of the Commission in this case, and had signed a seven year
contract to fill that position. In the Spring of 2009, the
Commission and Potter began to negotiate a buyout package in
exchange for Potter's early resignation. In October 2009
Potter had to take a leave of absence due to illness. The
Commission determined that it would seek to have Potter's
appointment to Executive Director rescinded, and advised Potter
that he was not to return to work until further notice. The
Commission did not give reasons for the suspension, did not set a
return date, but did maintain his pay.
Potter claimed that the suspension
constituted a constructive dismissal, and began his complaint for
wrongful dismissal damages. In Response, the Commission
claimed that by initiating legal proceedings against it, Potter had
voluntarily resigned his employment.
While lower courts favoured the
Commission, the Supreme Court of Canada was unanimous in finding
that Potter had been constructively dismissed. It stated that
constructive dismissal can take two forms:
a single unilateral act by the employer that breaches an
essential term of an employee's employment contract; or
a series of acts by the employer that, taken together, show the
employer no longer intends to be bound by the employment
By placing Potter on suspension without providing adequate
reasons, the Commission was found to have constructively dismissed
him. The Court also found that if the employer had an implied
contractual authority to suspend Potter, it bore the onus to show
that the suspension was reasonable and justified considering the
the duration of the suspension;
whether the suspension is with pay; and
whether the employer demonstrated good faith, including the
demonstration of legitimate business reasons for the
By failing to provide reasons for
the suspension, the Commission failed to act in good faith, and was
not authorized to place Potter on an administrative suspension.
While the Commission fell short of
its good faith obligations in this case, it does not mean that
employers cannot place employees on administrative suspension in
the proper contexts. The most common need for an
administrative suspension occurs in the context of carrying out
workplace investigations into allegations of employee
misconduct. It may be appropriate, and indeed necessary, to
remove an employee from the workplace once allegations of
misconduct are raised against that employee, so that a full and
untainted investigation may be carried out.
In terms of assessing the
administrative suspension, it ought to be done in writing to
explain the purpose and reasons for the administrative
suspension. The employee ought to receive all pay and
benefits that they would be entitled to if they were working, and
an anticipated return to work date should be included, where
Failing to reasonably justify an
administrative suspension may be seen as an act of bad faith, which
can lead the employee to successfully seek wrongful dismissal
damages. If you require advice or guidance with removing an
employee from the workplace please click
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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