Since Bill 168 changes to the
Occupational Health and Safety Act took effect in 2009
with respect to violence and harassment in the workplace, we have
seen an increase in the number of workplace harassment
investigations. While every organization has its own policies
and procedures for conducting such investigations, one common
question we get from employers is: "What do I do with the
alleged harasser during the investigation?" While a
common tactic is for the employer to remove the potential
respondent from the workplace in order to conduct the investigation
without concern for escalation or other complications, this
approach has recently been questioned as triggering a constructive
dismissal. However, the case of Pierro v. The Hospital for Sick
Children provides confirmation that this is
indeed still a legally-valid approach.
In this case, the alleged harasser
was a doctor at the Hospital for Sick Children in Toronto (the
"Hospital"); in addition to his role as a pediatric
surgeon Dr. Pierro was also Head of the Division of General and
Thoracic Surgery and became the Director of the Training Program in
2013. In his combined roles at the Hospital, Dr. Pierro had
supervisory authority over a number of employees including both
physicians and administrative staff. In 2015, a litany of
complaints emerged regarding Dr. Pierro's treatment of staff,
and, after an initial inquiry involving interviews with employees
and Dr. Pierro, the Hospital determined that an independent
investigation was necessary. As a first step to the
independent investigation, and to ensure that evidence "could
be gathered fairly and freely without accusations of
interference," the Hospital suspended Dr. Pierro from his
leadership and administrative roles while maintaining his full pay,
clinical, research and teaching roles during the course of the
In addition to filing an appeal of
his suspension Dr. Pierro also filed for an injunction in Superior
Court seeking to prohibit the Hospital from suspending him while
his appeal at the Health Professions Appeal and Review Board was
heard. Injunctions are only granted when each of the
following three (3) conditions are met:
Is there a serious question to be
tried on the merits of the case?
Would the applicant suffer
irreparable harm that cannot be compensated bydamages if the
application is refused?
Which party will suffer the
greater harm from the granting or refusal of the remedy pending a
decision on the merits?
In the circumstances, Justice
Akhtar found that the request for injunction failed at the very
first step, because it did not disclose a serious question to be
tried. While he also found that Dr. Pierro did not meet
either of the other criteria, it was the failure to meet the first
criterion that is instructive for employers, since Dr. Pierro's
argument was based on an alleged breach of his employment contract:
because his employment contract did not expressly permit the
Hospital to suspend him, he claimed that the fact that it did so
amounted to constructive dismissal.
In rejecting this argument, Justice
Akhtar distinguished between a disciplinary suspension and an
administrative one, citing the Supreme Court of Canada who said
that "[The] residual power to suspend for administrative
reasons because of acts of which the employee has been accused is
an integral part of any contract of employment...".
However, as was noted by Justice
Akhtar, again citing the Supreme Court of Canada, there are
conditions attached to an employer's ability to impose an
the action taken must be necessary
to protect legitimate business interests;
the employer must be guided by
good faith and the duty to act fairly in deciding to impose an
the temporary interruption of the
employee's performance of the work must be imposed for a
relatively short period that is or can be fixed, or else it would
be little different from a resiliation or dismissal pure and
the suspension must, other than in
exceptional circumstances that do not apply here, be with pay.
While this case is clear
affirmation that administrative suspensions are legally
permissible, it is important to note that the manner of imposing or
carrying them out may be subject to scrutiny. It is therefore
imperative to address all relevant criteria when undertaking a
workplace investigation: the lawyers at CCP can assist you to make
sure you are covered from all angles. For a list of our
lawyers with special experience in workplace investigations, click here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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