Williams HR Law LLP

Employers, Take Care when Suspending During Workplace Investigations

October 9, 2015

[vc_row][vc_column width=”1/3″][vc_single_image image=”2044″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]Questions are being raised about the handling of harassment complaints by the Canadian Olympic Committee (COC) leadership after a document has revealed that the organization was aware of harassment-related allegations against Marcel Aubut, the President, going back as early as 2011.  Recently, an employee of the COC filed a formal complaint against Mr. Aubut for sexual harassment in the workplace.  Shortly after, 3 other women came forward with similar allegations of sexual harassment.

In light of these recent complaints, the COC announced that the organization will be conducting a workplace investigation into the complaints, as well as a review of its workplace policies.  Mr. Aubut initially stepped aside from his high-profile post pending this investigation, and later decided to resign from employment.  Further, the complainant has withdrawn her formal complaint against Mr. Aubut.

Where there are suspicions of workplace harassment, employers have an obligation to properly conduct an investigation into these allegations regardless of whether the complaint is formal or informal.  While the COC is now focused on reviewing its workplace policies even though the formal complaint has been withdrawn, the organization should have addressed the harassment complaints 4 years ago when management initially became aware of such allegations.  For employers in a similar situation as the COC, there should be serious concerns of appearing to condone harassment as a result of inaction by the leadership when aware of harassment allegations.

At the commencement of an investigation, it has become the usual course for employers to place the employee who is the subject of the complaint (the “Respondent”) on administrative suspension with pay pending investigation.  However, before suspending a Respondent for the duration of the investigation, employers should be aware of the principles enunciated by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services, 2015 SCC 10 (“Potter”) on the employer’s right to suspend, and ensure the suspension is imposed in accordance with the requirements outlined in Potter.

Briefly, Mr. Potter was the Executive Director of Legal Aid for New Brunswick on a seven (7) year term contract.  After a few years, the organization and Mr. Potter unsuccessfully negotiated a buyout of the remaining term of employment.  Mr. Potter then took a medical leave of absence.  Prior to his return from the leave, Mr. Potter was placed on an indefinite administrative suspension with pay.  He was not provided with any reasons for the suspension decision, even after requesting reasons.  After 8 weeks of being suspended, Mr. Potter claimed constructive dismissal from his employment.

The SCC in Potter affirmed the employer’s right to place an employee on administrative suspension where there is an employment agreement with a clause giving the employer the discretion to suspend, paid or unpaid.

Where there is no express right to suspend by the employer, an employer may have an implied right to place an employee on administrative suspension if there are legitimate business reasons and the suspension is reasonable and justified.  A suspension will be considered reasonable and justified depending on the circumstances, including the duration of the suspension, whether the suspension is paid or unpaid, good faith by the employer in imposing the suspension and valid business reasons.

The employer in Potter did not have the implied right to suspend Mr. Potter as the suspension was not reasonable or justified in the circumstances and without business justification.  First, the organization did not act honestly and in good faith in suspending Mr. Potter indefinitely and refusing to give reasons for his suspension even when he asked for clarification.  Further, his employer recommended Mr. Potter’s termination from employment shortly after deciding to suspend his employment, and then took steps to conceal the termination decision.

In the context of workplace investigations, administrative suspensions of respondents are commonly imposed in order to maintain the integrity of the investigation.  Based on the framework in Potter, an administrative suspension pending the outcome of a workplace investigation into misconduct would be would be reasons that are reasonable and justified.  However, employers should ensure to communicate the purpose and reasons for the suspension to the respondent in writing and provide timelines for the investigation with an anticipated return to work date.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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