IS A SUSPENSION THE SAME AS A TERMINATION?
By July 7th of 2000, Ian was in his twelfth year of driving for a transportation company. On Saturday, July 8th, Ian attended a fishing derby, caught the biggest fish and decided to drive home after drinking alcohol to celebrate.
Ian got caught.
When you get charged with impaired driving, your license is automatically suspended for 90 days. If you do not plead guilty immediately, your trial will not likely take place within that 90 days. So after the 90 days you get your license back, at least until the trial. If you are convicted at trial you lose your license for at least a year.
Ian told his employer and he was suspended immediately. Obviously, he could not do his job. Ian did not plead guilty and after his 90-day suspension was lifted he had a meeting in October with his employer in which they told him that he could not return to work and was still on suspension pending his trial. It is important to note, as you consider the rest of this story, that Ian eventually did go to trial on May 9th of 2001 and was convicted. He lost his license for a year, starting May 9th. As a result, he only actually had a license between October 8th and May 9th, seven months.
After the employer told Ian in October that his suspension was continuing pending the trial, some lawyers' letters were exchanged between Ian's lawyer and the employer's counsel. Ian took the position that the employer had no right to suspend him after the expiration of his initial 90-day license suspension and should have brought him back to work. In early 2002, the employer eventually did offer to take Ian back to work but by then he had found a new job. Ian sued for wrongful dismissal.
Ian's lawyer argued that the employer had no right to suspend Ian in the first place and should have found him other work where driving wasn't required. More importantly, the lawyer argued that even if the initial suspension was not a breach of the employment contract, the employer should have brought Ian back to work in October when his license was reinstated. By failing to do so it had terminated him.
The employer argued that if it had found Ian other work instead of suspending him during the 90-day license suspension, it would appear to other employees that they were rewarding him for drunk driving. Furthermore, the employer argued that it had a right to continue Ian's suspension after his license was reinstated because they had legitimate concerns about safety issues.
At trial, the judge found that the employer had a right to suspend Ian for the first 90 days while his license was suspended. The judge decided that the employer was not obliged to find Ian a new job. He was hired to be a truck driver and if he could not fulfill that function because of his own actions, that was Ian's problem and not the employer's. Ian's lawyer had also tried to argue that suspending Ian in the first place was actually a termination because it was a breach of the employment contract. The judge found that since Ian had been suspended for short periods a few times before as a result of disciplinary issues, it was clearly an implied term of the employment contract that Ian could be suspended.
It should be noted that there have been a few cases where employees have successfully argued that since they had never agreed that they could be suspended without pay for a disciplinary issue, the suspension itself was a termination entitling them to severance pay. If the employer, as in this case, can prove that there was some sort of agreement that suspensions might occur, the employee will not succeed. Policy manuals indicating that suspensions are a possible part of the disciplinary process or an established practice within the company or industry of giving suspensions will likely persuade a court that a suspension, in itself, is not a termination...so long as there is a good reason for the suspension.
And this is where the employer in Ian's case ran into trouble. The judge found that the employer had not proven that there was a good reason for continuing Ian's suspension for the seven months between October and his trial in May. In the absence of a good reason, Ian had a right to interpret the suspension as a termination.
The judge decided that Ian was entitled to nine months' notice of his termination commencing in October, when his 90-day suspension ended. The judge deducted from that nine months' wages the money that Ian had made at his new job before he lost his license again in May.
Oddly, Ian ended up getting paid for the months of May and June even though he had lost his license by then If the employer had brought Ian back to work after the initial 90-day suspension, then Ian would have had to stop working on May 9th
anyway. He would have got seven months' pay and then been out of work. The judge, however, gave Ian more money than he would have had if he had never been terminated. This is unusual in employment law in Ontario. The rule is usually that you get everything you would have had if you had received working notice. If Ian had received nine months' working notice in October instead of having his suspension continued, he would only have been paid for the seven of them he was able to drive the truck.
Despite the fact that a suspension can be considered a termination if there is no implied term in the employment agreement that it can be part of the discipline arsenal, very few employees will interpret a short-term suspension as a termination. Ultimately, finances dictate that they keep a job and swallow the one or two week suspension without pay. The moment the employee returns to work, he has accepted the legitimacy of the suspension and condoned his employer's treatment of him.
Ed Canning is a Partner in the Labour & Employment group at Ross & McBride LLP
This article was originally published in the Hamilton Spectator, April 14, 2003