For a long time, there hasn’t been any debate about an employer’s right to use temporary suspension without pay as a disciplinary measure. There have been many decisions dealing with administrative suspension, however. The question continues to be relevant: can an employer who, to protect his business’s interests, administratively suspends an employee accused of a crime until there is a verdict, avoid the obligation to pay the employee’s salary if the employee remains available for work that he or she is denied the opportunity to perform? What if the employee is accused of crimes involving actions taken in the performance of his or her duties?
In a recent decision, the Quebec Court of Appeal determined that the administrative suspension without pay of a police officer accused of a criminal offence committed in the performance of his duties had to be changed to a suspension with pay.1
Context and decisions at trial
The plaintiff was a patrol officer for the Lévis police department. Quebec’s provincial police force investigated him in 2009 further to a report he handed in concerning a police action. The investigation led to his being charged with obstruction of justice and falsification and use of falsified documents. To preserve the public trust, the complainant was suspended by the employer until a final judgment was reached on the criminal charges.
The police union filed a grievance that did not contest the legitimacy of the suspension, only the decision to suspend the complainant without pay. In a first decision, the arbitrator allowed the grievance, maintaining that she was not in the presence of exceptional circumstances that might preclude the application of the conditions set forth by the Supreme Court of Canada in Cabiakman v Industrielle Alliance Life Insurance Co.2 (Cabiakman). The Superior Court judge overturned the arbitrator’s decision on the grounds that the employer was permitted by clause 8.03 (C) of the collective agreement to suspend an employee with or without pay during criminal proceedings. In his view, this was a reason to set aside Cabiakman.
The decision of the Court of Appeal
The Court of Appeal first determined that the arbitrator had grounds to examine the matter in light of Cabiakman, which establishes that suspensions are imposed, in principle, with pay, except in exceptional circumstances. In the case at issue, the duration of the suspension (20 months) was too long to be without pay. It was the Court of Appeal’s view that the fact the collective agreement stated that the employer had the power to administratively suspend an employee without pay without specifying the conditions under which that power could be exercised did not mean the employer had an absolute right to suspend an employee without pay and set aside the principles outlined by the Supreme Court.
Consequently, the arbitrator’s finding—that the interruption in the performance of work without pay must be relatively short and the administrative suspension must, in principle, be imposed with pay, barring exceptional circumstances—fell within a range of reasonable outcomes. The Superior Court judge was therefore not justified in intervening.
The power to suspend an employee does not, necessarily and in all cases, give rise to the right to suspend the employee’s pay. Quite the opposite: it appears that since administrative suspension is a preventive measure, it may not always give rise to the suspension of pay until completion of the required investigation or the handing down of the expected decision. It is also important to distinguish between suspension without pay during a short internal investigation leading to possible dismissal (retroactive to the date of the suspension) and the (often much longer) suspension that takes place when criminal charges have been laid. In the second case, pay can be withheld only in the following situations:
When the contract of employment or collective agreement provides that administrative suspension will be without pay in the event of criminal charges. However, it will now be necessary to review the wording of the provision and take into account the duration of the suspension.
When the employee is released under very strict conditions that prevents him or her from fulfilling his or her duties and/or going to the workplace.
Where neither of the above two situations exists, if the employer, employee involved and union agree that the suspension will nonetheless be without pay.
However, the Court of Appeal left the question pending as to whether the employee, based on the nature of the charges, could be assigned to administrative duties. The employer argued that a police officer’s work was in essence administrative and the nature of the charge (falsification of a report) precluded the officer from being assigned to other duties. The Court of Appeal was of the opinion that sufficient evidence had not been presented in this regard. Consequently, the question remains: when an employer cannot assign an employee to other duties, is it relieved of the obligation to pay the employee during a suspension?