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Sending them home

Suspensions are a serious form of discipline — when should an employer use them?

By Jeffrey R. Smith

Many managers and HR professionals cringe when presented with a situation that requires disciplining an employee for misconduct.

It’s a tough job. And it’s also a tricky one, especially if the circumstances call for something more serious than a warning. If a suspension is brought into the mix, things can quickly get complicated.

In a unionized environment, suspensions are often covered in the collective agreement. Agreements typically outline when suspensions can be implemented and whether they are paid or unpaid.  In these cases, as long as the employer follows the letter of the agreement, it’s usually on safe ground — though the union can still grieve the suspension.

However, the picture becomes a bit more murky when the employees aren't unionized.

The seriousness of a suspension is also affected by whether it’s paid or not. If an employee is suspended pending an investigation into misconduct, it’s generally done simply to get the employee out of the workplace until the employer gets all the facts, or to separate him from a complainant if the alleged misconduct is harassment.

These are typically suspensions with pay, lest the employer be accused of issuing discipline before it has all the evidence — a suspension without pay is always going to be considered disciplinary.

Without a reasonable and consistent disciplinary policy for employees that outlines unpaid suspensions — and is a part of the employment contract — it could also result in a constructive dismissal claim.

Suspensions can often be a part of a progressive discipline policy — but the employer had better make sure the policy is followed consistently and to the letter. But at what point in the process is suspension appropriate? It’s often assumed an employer should give a verbal warning followed by a written warning, and after that a suspension might be appropriate if the problem continues.

There are many factors that could affect this, such as the employee’s disciplinary history and seriousness of misconduct. Some courts and arbitrators have found more written warnings are necessary, as suspension is a serious step in the disciplinary process. How can an employer know when a suspension is appropriate? How much should a suspension be corrective and how much should it be punitive, if at all?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com. For more information, visit www.employmentlawtoday.com.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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