CASE STUDY

Case Study

Case Study

CASE STUDY 01

Introduction

Alison and Bernard have been recognized by the Courts that an employer can, in certain circumstances, enforce a suspension against an employee. However, a distinction must be made between disciplinary suspension (a punitive measure for a reproachable act made during work) and administrative suspension (a preventive measure which can be taken when the interest of the employer's business requires it, even in the absence of an act made by the employee while working).

Discussion

Disciplinary suspension of Alison and Bernard generally is the step that immediately precedes dismissal, pursuing to the principle of gradation, which must be followed by the employer in matters of disciplinary sanctions before Alison and Bernard can be dismissed. It is recognized and admitted that an employer has the power to administer such sanctions against Alison and Bernard, as long as just and reasonable causes justify the sanction. Since a disciplinary suspension sanctions Alison and Bernard's misconduct, it generally is without remuneration. However, what shall it be in cases where the Alison and Bernard is the target of allegations of misconduct, such as sexual offences committed in the scope of his work?

Can the employer suspend that Alison and Bernard without remuneration before the end of his investigation regarding these allegations? The analysis of recent Court decisions indicates that the answer to these questions is no.

Indeed, as long as the employer has not finished looking into the allegations hanging over the Alison and Bernard, any measures taken against said Alison and Bernard cannot be deemed disciplinary, as the allegations have not been supported in any substantial way. Any suspension imposed on Alison and Bernard at such a stage in the process shall be considered a preventive and therefore administrative suspension, which as a rule does not incur a suspension salary. Thus, Alison and Bernard who ceases to receive his remuneration following such an administrative suspension could claim damages against his employer for that loss of income.

In reference to criminal accusations brought against Alison and Bernard for actions perpetrated outside of work, could the employer suspend that Alison and Bernard in order to preserve the business' image? The employer can do so if he demonstrates the existence of a just and reasonable cause (for example: protection of reputation) allowing for such an administrative suspension. With regards to the nature of this just and reasonable cause, the Courts have developed various criteria, which can guide the employer in his decision to administratively suspend Alison and Bernard:

Sufficient link between the reproached act and the type of employment;

The nature of the accusations;

The existence of reasonable grounds to believe that maintaining, even temporarily, the employment relationship would be prejudicial to the employer or to his reputation;

The existence of immediate, important inconveniences that cannot be practically countered by alternate measures (for example: assigning the Alison and Bernard to another post)

The necessity of protecting the public.

However, in any case, a preventive or administrative suspension cannot entail a loss of ...