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The Ontario Court of Appeal has provided a useful decision on the topic of when an employee can be suspended without triggering a termination of employment.  The case, Filice v Complex Services Inc. involved an employer which operated a casino.  The employee worked as a security shift supervisor.

Further to an internal audit, there were concerns about what appeared to be inconsistencies with the logs relating to the lost and found. The employee was subsequently suspended without pay pending an investigation and was escorted from workplace. The employee was later charged with four counts of theft, although they were all disposed of through withdrawal or dismissal.

Employee entitled to significant compensation for suspension

Both the trial judge and Court of Appeal found that the Casino’s actions amount to a termination (constructive dismissal). He was subsequently awarded 17 months pay, equivalent to the period of suspension without pay.  While the Court of Appeal disagreed with the size of the award, it did agree with the trial judge that the actions of the Casino constituted a termination of employment through constructive dismissal.

In coming to this conclusion, the court found that where an employee is suspended, it is up to the employer to prove that the action is reasonable in the circumstances. The court also found that in most cases a suspension, particularly without pay, will constitute constructive dismissal. An employer may be able to argue that there was agreement with the employee that a suspension is reasonable in certain circumstances (i.e. via employment contract or policies), however even here the court will expect that any such decisions be carried out reasonably.

The case is a useful reminder to individuals and employers that suspensions are a serious issue and should not be treated casually by employers. The courts will specifically review the circumstances of a suspension carefully to determine the appropriateness. Courts will also not hesitate to determine that an employer’s actions constitute a termination of employment and award significant damages.

If you have any questions about this issue, please contact Toronto employment lawyers at Sultan Lawyers PC at 416-214-5111 or online.


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