Suspending non-union employees without pay

Do we have the right to suspend a non-union employee without pay?

Question: Do we have the right to suspend a non-union employee without pay?

Answer: In most unionized work environments, an unpaid suspension is a well accepted component of the progressive discipline process. However, employers do not have an implied right to suspend managerial or other non-union employees without pay. At common law, and under most employment standards statues, an unpaid suspension will usually be a constructive dismissal.

At least one court has held that an employer may elect to suspend an employee without pay in circumstances where it would otherwise have just cause for dismissal. In the absence of just cause, a short suspension with full pay and benefits may not constitute constructive dismissal where the employer demonstrates no intention to repudiate the employment contract. Also, if an express term of the employment contract contemplates unpaid suspensions for misconduct, the courts have held that such a suspension will not amount to a constructive dismissal. (See Carscallen v. FRI Corp.)

The Supreme Court of Canada introduced a degree of uncertainty in this area with its decision in McKinley v. B.C. Tel. There, the court adopted a “contextual approach” to assessing the question of just cause and reasoned that the “principle of proportionality” may justify lesser sanctions for less serious types of employee misconduct. However, despite tremendous debate on the subject, the courts have so far rejected the proposition that McKinley endorsed the use of unpaid suspensions, or the application of “progressive discipline” principles, in the non-union context.

For more information see:

Carscallen v. FRI Corp., 2005 CarswellOnt 2394 (Ont. S.C.J.)

McKinley v. B.C. Tel, 2001 CarswellBC 1335 (S.C.C.)

Colin G.M. Gibson is a partner with Harris & Company in Vancouver. He can be reached at [email protected] or (604) 891-2212.

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