Can an employer place an employee on administrative leave pending investigation?
Employers must consider how to manage an employee alleged to have engaged in harassing behaviours in the workplace. In some instances, employers remove the alleged harasser from the workplace pending investigation to prevent any further complications arising from the conflict.
In Pierro v. The Hospital for Sick Children, 2016 ONSC 2987 (CanLII), the Ontario Superior Court of Justice confirmed the legal validity of administrative suspensions in the context of workplace harassment investigations. Justice Akhtar relied on the Supreme Court of Canada case, Cabiakman c. Industrielle Alliance, cie d’assurance sur la vie, 2004 SCC 55 (CanLII), [2004] 3 S.C.R. 19, ruling that there are conditions attached to an employer’s ability to impose an administrative suspension:
The action taken must be necessary to protect legitimate business interests;
The employer must be guided by good faith and the duty to act fairly in deciding to impose an administrative suspension;
The temporary interruption of the employee's performance of the work must be imposed for a relatively short period that is or can be fixed, or else it would be little different from a resiliation or dismissal pure and simple; and,
The suspension must, other than in exceptional circumstances that do not apply here, be with pay.
According to the Supreme Court of Canada, “[The] residual power to suspend for administrative reasons because of acts of which the employee has been accused is an integral part of any contract of employment, but it is limited and must be exercised in accordance with [the above mentioned requirements].”