Faced with criminal charges: To suspend or not to suspend your employee?

Sometimes the question is not whether the suspension is paid, but whether suspension is appropriate at all
By Valérie McDuff
|employmentlawtoday.com|Last Updated: 03/13/2019

You learn that one of your employees is facing major criminal charges that appear to be related to his job. Do you suspend the employee? A recent Quebec arbitration decision is a reminder of the conditions that must be met to administratively suspend an employee who is facing criminal charges.

The employer read in a newspaper article that one of its computer systems technicians was charged with internet luring and sexual contact with a girl under the age of 14. The article did not name the employer, but the employer immediately suspended the employee without pay.

After the charges were laid, the employee was released under strict conditions. He could not own a computer or cellphone and had to cancel his Internet subscription. Shortly after his suspension, the court changed the conditions. He was allowed to use the Internet for work purposes in his employer's establishment after informing his employer of the charges.

The union filed a grievance challenging the suspension itself, or, if the employer had the right to suspend, the fact that the suspension was unpaid.  

Referring to an earlier Supreme Court of Canada decision, Cabiakman cIndustrielle Alliance, cie d'assurance sur la vie, the arbitrator reiterated that the following conditions must be met to administratively suspend an employee who is facing criminal charges:

  1. The suspension must be necessary to protect the employer's legitimate business interests.
  2. The decision to suspend must be made in good faith and the employer must act fairly.
  3. The suspension must be for a relatively short and set period of time.
  4. The suspension must generally be imposed with pay, subject to exceptional circumstances.

He agreed that the charges against the employee were serious. But, he said employers must consider alternatives to suspension -- like reassignment or changes in duties -- that would protect the employer's business interests and minimize hardship for the employee.

The arbitrator found that the employer's business interests would not have been harmed if the employee remained at work during his trial. The employer's name was not published in the newspaper, and the employee could have continued working if the employer simply adjusted some of his tasks. As a result, the arbitrator found the employer had wrongfully suspended the employee.

Lesson learned

This case is interesting because it considers whether an employer can suspend an employee facing criminal charges. Most cases in this area focus on whether the suspension should be paid. This case reminds us that employers must first consider if a suspension is in itself an appropriate measure. Before suspending an employee -- with or without pay -- the employer must show that it has considered other solutions that would allow the person to remain at work during their trial without compromising the business' legitimate interests.

This case is interesting because it considers whether an employer can suspend an employee facing criminal charges. Most cases in this area focus on whether the suspension should be paid. This case reminds us that employers must first consider if a suspension is in itself an appropriate measure. Before suspending an employee -- with or without pay -- the employer must show that it has considered other solutions that would allow the person to remain at work during their trial without compromising the business' legitimate interests.

For more information see:

  • Syndicat des employés et employées de soutien de l'Université de Sherbrooke (SEESUS), SCPF section locale 7498 et Université de Sherbrooke,Re, 2018 CarswellQue 8360 (T.A. Que.).

  • Cabiakman cIndustrielle Alliance, cie d'assurance sur la vie, 2004 CarswellQue 1744 (S.C.C.).

Valérie McDuff is an associate in the Labour, Employment, and Human Rights Law Group with Fasken in Montreal. She can be reached at (514) 397-7645 or vmcduff@fasken.com. This article was reprinted with the permission of Fasken. Fasken is one of the world's leading international business law and litigation firms. You can read Fasken's weekly bulletin, "The HR Space, " here.

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