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We own a federally regulated business and a provincially…

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We own a federally regulated...
We own a federally regulated business and a provincially regulates business in Ontario, Canada. Can we suspend an employee without pay, in either company; or must we pay them?
Submitted: 2 months ago.Category: Canada Law
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Answered in 2 minutes by:
5/25/2018
Lawyer: Debra, Lawyer replied 2 months ago
Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 106,017
Experience: Lawyer
Verified

Hello! My name is Debra (formerly known as Legal Ease). Thank you for your question. I'm reviewing it now, and will post back again shortly.

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Lawyer: Debra, Lawyer replied 2 months ago

I am sorry to hear of this difficult situation.

What is the reason for the suspension?

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Customer reply replied 2 months ago
Thank you Debra!
Lawyer: Debra, Lawyer replied 2 months ago
I am sorry to hear of this difficult situation. What is the reason for the suspension?
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Customer reply replied 2 months ago
I’m reviewing our discipline procedure. No specific concern.
Lawyer: Debra, Lawyer replied 2 months ago

Generally, the law is that an employee is entitled to procedural fairness and this includes a full investigation if there is an allegation of misconduct. A full investigation includes a chance to answer fully to the specific allegations.

And it would not be considered fair to deprive the employee of income if there is no decision as to any wrong doing.

So it could be considered to be a case of constructive dismissal if the employee is suspended without pay as presumably the suspension is to give you a chance to do the investigation.

That would mean they could quite likely successfully sue you for wrongful dismissal if they quit when you suspend them without pay.

Does that help?

Please feel free to post back with any follow-up questions you may have. If you don't have any then I hope I have earned a 5 star rating but if you don't feel that I have please don't hesitate to reply back and let me know what more I can do to assist you. Finally, please know that even after you rate me I will be here for you and you can ask follow-up questions if you think of them later on at no further charge of course.

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Customer reply replied 2 months ago
If it has been determined that the employee is at fault - For example a preventable collision, does employment law in Canada and in Ontario allow us to suspend without pay?
Lawyer: Debra, Lawyer replied 2 months ago

Possibly if you did the investigation already. But it's hard to be sure. For example, unless the collision was deliberate you cannot require the employee to pay for a collision even if they were at fault.

So you would have to be very careful to show you took all steps to ensure the was their fault and that you were suspending as an alternative to dismissing.

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Customer reply replied 2 months ago
We don’t expect them to pay but in the school bus industry having a preventable collision is a huge safety concern. I need to know if we can suspend without pay.
Lawyer: Debra, Lawyer replied 2 months ago

Yes of course it is a huge concern but what I am telling you is that there is no clear answer.

Read this for example:

https://stepstojustice.ca/common-question-plus/employment-and-work/my-employer-says-im-suspended-without-pay-what-does-mean

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Customer reply replied 2 months ago
That story says it’s okay as long as it’s in the employee agreement
Lawyer: Debra, Lawyer replied 2 months ago
I know. But that would be for new employees. You cannot compel a current employee to sign a contract changing the terms of their employment because that again would be constructive dismissal.
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Customer reply replied 2 months ago
We rehire them if we have a position. They are seasonal.
Customer reply replied 2 months ago
That still doesn’t satisfy me though. I’m wondering if there is employment law in the Canada Labour Code or Provincial Labour Law regarding suspension without pay.
Lawyer: Debra, Lawyer replied 2 months ago

What you want is a black and white answer. There is no such thing in law. The Acts don't cover this so it is not unlawful. The law is mainly based on common law which is judge made law.

Judges interpret the law. Lawyers argue it. There would not be any need for lawyers if the law was black and white.

If you set out this policy in your contract and the employee understands and does not feel unduly pressured you would likely be OK.

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Customer reply replied 2 months ago
Which Act are you referring to?
Lawyer: Debra, Lawyer replied 2 months ago

The Federal Labour Code and the Employment Standards Act.

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Lawyer: Debra, Lawyer replied 2 months ago

Is there anything more I can help you with at this point in time?

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