The recent decision of the Ontario Court of Appeal in Carscallen v. Fri Corporation has caused concern about when non-unionized employees can properly be suspended without creating a right for the employee to sue and claim damages for termination. Each particular employment relationship needs to be examined to assess whether or not the employer has the right to suspend an employee without pay and what result will flow from attempts by a company to discipline an employee short of termination. The following are useful questions which employers should ask in all instances:
1. Is the potential discipline being considered proportionate and reasonable in the circumstances?
2. How have similar types of misconduct been treated in the past?
3. What company policies are there which might authorize paid or unpaid suspension?
4. What is the historic discipline record of the employee?
5. Is the potential discipline clear? Will the employee understand whether or not they will be paid through the suspension from start to end?
6. Has the case been properly investigated or is the discipline decision a “need to compensate reaction”?
7. What is the employer’s intent with the discipline?
8. Is the suspension punitive or mean spirited? Will the employee be embarrassed or humiliated?
9. Is the discipline connected to the employer’s business objectives?
For each of the above questions, the employer will need to back up its consideration of these points with evidence. The increasingly employee-friendly courts are continuing to look at further ways to expand the scope of employee claims, with damages increasingly been paid even if the employee was expressly terminated.