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However, before appealing the investigative suspension, Filice voluntarily surrendered his gaming registration on May 15, Subsequently, his employment was at an end. Filice was immediately placed on an investigative suspension without pay. After finding that the employee was constructively dismissed, the Court of Appeal noted the employee's length of service eight years and eight months and that it took the employee seven months to find other employment. He can be reached at or delmaleh mccagueborlack. By David Elmaleh and Egi Troka. The Ontario Court of Appeal found that the trial judge erred in two fundamental respects. The case has several implications for employees under investigation, both administratively and criminally, and should be considered by all employers and human resource departments country-wide. On March 12, , Mr. Courts look at what information the employer had at the time the decision to suspend without pay was made.

Suspension without pay not justified before investigation working at casino niagara misconduct complete. As noted above, the Court of Appeal found there was no basis for an award of punitive damages. The court noted that the content of the employer's policies and handbook, which the parties treated as forming go here of the employment contract, supported the position that the employer had a contractual right to suspend the employee.

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The Court of Appeal only awarded Filice compensatory damages for seven months' lost wages. Sign up. Most read articles. Filice's gaming registration was suspended; prohibiting him from working. Please enter email address below to subscribe. The Court of Appeal lowered the notice period awarded by the trial judge to a more appropriate seven months, as the trial judge had erred by simply treating the entire period that the employee was suspended as being the appropriate notice period for which he was to be compensated. First, the reasonable notice period arising from the constructive dismissal should not have been 17 months, but rather seven months. On Dec. Aug 10, The decision The Ontario Court of Appeal found that the trial judge erred in two fundamental respects. Filice's statement of claim alleged he was constructively dismissed on Dec. Impoper implementation of drug policy leads to discrimination. Evidence that could be interpreted either way, such as pending criminal charges, is not enough to justify a suspension without pay. Takeaways Automatically suspending an employee without pay is a gamble. There is always a risk that if an employee is suspended without pay a fairly harsh decision pending an investigation , there is a risk of an award for punitive damages in certain circumstances. However, absent express language in the employment contract stipulating that any suspension would be without pay, the burden rested on the employer to establish that a suspension without pay was justified. On Jan. Discrimination against railway worker partly justified. By Feb. Punitive damages are not common. The constructive dismissal test looks at circumstances where there has been an act by the employer that may constitute a breach of the contract of employment. The Court of Appeal found that the employer could not justify a suspension without pay, so the suspension without pay amounted to a unilateral change in the employment relationship that constituted a breach of contract — effectively, constructive dismissal. The Court of Appeal found that the evidence demonstrated that an administrative suspension was clearly justified in the case, as the employee was a security supervisor, his duties involved very regulated activities in the lottery and gaming industry, and the allegations were one of theft. The Court of Appeal ruled that suspension without pay is only reserved for exceptional situations.