Being suspended from work pending investigation can raise many questions about rights, pay, and the future. This guide explains: what suspension pending investigation means, how long it can last, and what to do next if it happens to you.
If your employer has suspended your employment, you can connect with a Calgary constructive dismissal lawyer at Cashion Legal for clarity, strategy, and peace of mind.
Table of Contents
What Does “Suspended from Work Pending Investigation” Mean?
In Alberta employment law, a suspension pending investigation refers to a temporary removal of an employee from the workplace while the employer investigates allegations of misconduct or serious workplace concerns. This type of suspension is typically administrative, non-disciplinary, and is intended to protect the integrity of the investigation, prevent interference, and ensure workplace safety or confidentiality.
What are some situations where an employer might impose a suspension pending an investigation?
1. Allegation of Workplace Harassment: If an employee alleges workplace harassment, the employer is arguably obligated to suspend the employee during the investigation to preserving workplace safety and integrity. The suspension protects the complainant, and ensures a fair, unbiased investigation by allowing the complainant to participate in the investigation without fear of retaliation or further discomfort.
2. Suspected Financial Misconduct: If an employer suspects financial misconduct, a suspension pending investigation will serve the dual purpose of mitigating any further losses and preserving critical records to protect the credibility of the process. While the employee is suspended the employer can conduct a forensic audit and interviewing, and the suspended employee cannot access financial systems or tamper with evidence.
3. Safety Violation in a Regulated Industry: If an employee is involved in a potentially dangerous incident due to not following safety procedures, a suspension pending investigation protects both coworkers and operations, and demonstrates the employer’s commitment to regulatory compliance.
4. Conflict of Interest Allegation: If an employee is allegedly acting against the employer’s interests a suspension pending investigation can help maintain public trust reinforce transparency and accountability in the workplace.
What are my rights during a suspension pending investigation?
Under the common law, a suspension pending investigation is permissible only in limited circumstances, and must be reasonable in length.
Importantly, unless an employment contract expressly allows for suspension, particularly without pay, employers must meet strict conditions to avoid liability for constructive dismissal.
The common law implies a duty of good faith and fair dealing in all employment relationships. A suspension will generally be lawful if it is:
1. Reasonable in the circumstances,
2. Imposed in good faith,
3. Of limited duration, and
4. With pay and continued benefits, unless otherwise agreed.
Unpaid suspensions, especially when imposed without justification or proper process, may be viewed as a unilateral change to the employment relationship, effectively amounting to termination. Courts also examine whether the employer considered less severe alternatives, communicated clearly with the employee, and reassessed the suspension as new information emerged.
In some cases, courts have held that a failure to act reasonably breaches the employer’s obligations and results in damages. To comply with the common law, employers should ensure suspensions are supported by a legitimate business reason and are not punitive in nature unless appropriate disciplinary processes are followed. Clear contractual terms and fair, consistent application of suspension policies are key to managing risk under the common law.
Employer Cannot Condone the Conduct
A suspension pending investigation helps an employer avoid the argument that it condoned the employee’s conduct by demonstrating that the alleged misconduct was taken seriously and addressed promptly. If the employer allows the employee to continue working without interruption, it may be seen as implicitly accepting or overlooking the behaviour. By removing the employee from the workplace during the investigation, the employer clearly signals that the conduct is under formal review and that no assumptions have been made. This action helps preserve the integrity of any future disciplinary decision, including termination, by showing that the employer did not waive its right to respond.
How long can the suspension be?
A suspension pending investigation should be as short as reasonably necessary to complete the investigation. Prolonged or indefinite suspensions may be seen as constructive dismissal, especially if unpaid. Employers must regularly reassess the need for continued suspension and act promptly once sufficient facts are available to make a decision.
Am I entitled to any information?
Yes, an employee is entitled to basic information about their suspension, including whether it is paid or unpaid, the reason for the suspension, and that it is pending investigation. Clear communication is essential; withholding this information may breach the duty of good faith and increase legal risk for the employer. However, the employer may not be required to disclose information that prejudices the investigation.
Can You Be Fired After Suspension?
Possible Outcomes
Outcomes of workplace investigations may include: no action if allegations are unsubstantiated; disciplinary measures such as a warning, suspension, a performance improvement plan, or termination for cause if misconduct is proven; or termination without cause if the relationship is no longer viable. Employers may also implement policy changes or training to address systemic issues uncovered during the process.
Wrongful Dismissal vs. Just Cause
Yes, an employee can be terminated after an investigation, depending on the outcome. If the investigation uncovers serious misconduct, the employer may terminate for cause. Examples include theft, harassment, fraud, or serious policy breaches. However, the employer must prove the misconduct was sufficiently serious to irreparably damage the employment relationship. This is a high threshold under Canadian law.
If the investigation reveals less serious issues, or if the employer simply decides to end the relationship for business reasons, the employee may be dismissed without cause. In this case, the employer must provide reasonable notice or pay in lieu, in accordance with the Employment Standards Code and common law.
Employers must not mislabel a for-cause dismissal to avoid paying severance. Doing so may result in wrongful dismissal claims and additional damages. Whether termination is with or without cause, it should follow the investigation’s findings and be handled fairly and lawfully.
Alberta Statutes and Workplace Suspensions
Suspensions and the Employment Standards Code
Alberta’s Employment Standards Code must be respected during any suspension pending investigation. While the Code does not specifically address suspensions, it sets minimum standards for wages, earnings, and termination that continue to apply. For example, if an employee is suspended without pay, the employer must ensure the suspension does not violate minimum wage, notice, or other statutory entitlements. A failure to meet these standards could result in non-compliance with the Code, regardless of the nature of the investigation. Employers must carefully manage suspensions in a way that aligns with both employment standards legislation and common law principles.
Suspensions and the Occupational Health and Safety Act
Under Alberta’s Occupational Health and Safety Act (OHSA), employers have a legal duty to ensure a safe and healthy workplace. This includes taking reasonable steps to protect employees from harassment, violence, and unsafe conditions. A suspension pending investigation may be necessary under the OHSA when an employee is alleged to have engaged in behaviour that poses a risk to others or to the workplace environment. Temporarily removing the employee allows the employer to fulfill its obligations under the Act while conducting a fair investigation. Failure to act in such cases may expose the employer to liability for not maintaining a safe work environment.
Suspensions and the Alberta Human Rights Act
Under the Alberta Human Rights Act, employers have a duty to maintain a workplace free from discrimination and harassment. A suspension pending investigation may be necessary when there are allegations of discriminatory conduct, such as racism, sexual harassment, or other behaviour targeting protected characteristics. Temporarily removing the respondent from the workplace can help prevent further harm, preserve the integrity of the investigation, and demonstrate that the employer is taking the complaint seriously. In this context, suspension is a proactive step to uphold the employee’s right to a discrimination-free workplace and to fulfill the employer’s obligations under the Act.
Suspensions in the Unionized Context
In the unionized context, suspensions, both paid and unpaid, are more clearly governed by the collective agreement between the employer and the union. These agreements typically outline when and how a suspension may occur, the distinction between disciplinary and non-disciplinary suspensions, and the procedural rights of the employee, including grievance and arbitration mechanisms.
Unlike non-unionized settings, an employer in a unionized workplace often has the express contractual authority to impose unpaid suspensions for disciplinary reasons. However, even then, the employer must have just cause and follow the principles of progressive discipline and procedural fairness. Administrative suspensions pending investigation are also permitted but must not be arbitrary, discriminatory, or excessively prolonged.
The presence of a union provides employees with greater protection, as they can challenge the fairness or appropriateness of a suspension without having to claim constructive dismissal. This system allows for the employment relationship to continue while disputes are resolved through established grievance procedures, reducing legal uncertainty for both parties.
What to Do If You Are Suspended Pending Investigation
If you believe you have been wrongfully suspended, act promptly and strategically. We strongly encourage any employee whose been suspended to seek legal counsel. The right lawyer can help you preserve your rights and strengthen any legal claim they may pursue.
Immediate Steps
- Request clarification in writing from their employer, including the reasons for the suspension, whether it is disciplinary or administrative, and whether it is with or without pay. This helps clarify the employer’s position and creates a written record;
- Review their employment contract and any relevant workplace policies to determine whether the suspension aligns with its terms;
- Cooperate with the investigation process. Failure to cooperate could give the employer just cause to terminate your employment;
- Document all communications, avoid breaching company policies, and refrain from resigning unless advised.
Best Practices for Employers:
Any employer considering a suspension pending investigation should consult with legal counsel. Some best practices to consider include:
- Include the right to suspend in employment agreements and workplace policies;
- Before implementing a suspension, conduct a detailed evaluation of whether a suspension is warranted and document this evaluation;
- Implement a paid suspension; and
- Clearly inform the employee about the suspension and the investigation, while stressing confidentiality obligations on the employee.
How Cashion Legal Can Help
1. Clarity – Understand Your Rights
Legal advice provides a clear understanding of your rights, your employer’s obligations, and the legal implications of your suspension. A lawyer can explain whether your suspension is lawful, what information you’re entitled to, and whether your employer is at risk of constructive dismissal. This clarity helps you assess your position and avoid missteps that could harm your case.
2. Strategy – A Reliable Action Plan
A lawyer will help you develop a personalized strategy based on the facts of your case. This may include requesting specific documentation, preserving evidence, managing communication with your employer, or preparing for a potential return to work, settlement, or legal claim. Strategic legal guidance can position you for the best outcome, whether that’s reinstatement, compensation, or litigation.
3. Peace of Mind – A Path Forward
Being suspended is stressful and uncertain. Legal advice offers peace of mind by helping you understand what’s happening and what to expect next. Knowing that a professional is advocating for your rights allows you to focus on your well-being and make informed decisions with confidence, rather than reacting out of fear or confusion.
Contact Us
Cashion Legal is an employment law firm based in Calgary, Alberta. Our employment lawyers handle employment matters for employers an employees. We believe in fairness; we are committed to providing our clients with clarity, strategy and peace of mind through strong legal advice and representation.
If you need advice regarding workplace suspensions, contact us today.
FAQ
Can an employer suspend an employee without pay during a workplace investigation?
Generally, no, not unless the employment contract or collective agreement expressly permits unpaid suspensions. Otherwise, doing so risks a claim for constructive dismissal, especially in non-unionized workplaces.
What makes a suspension pending investigation lawful under Alberta employment law?
A suspension is lawful if it is reasonable, made in good faith, of limited duration, and with pay, unless an agreement states otherwise. It must also comply with the Employment Standards Code, common law, and other applicable legislation.
How long can you be suspended from work pending investigation in Alberta?
You can be suspended for as long as is reasonably required to conduct the investigation, but no longer than this.
When is a suspension appropriate under the Occupational Health and Safety Act?
A suspension may be necessary to protect workplace safety if an employee’s presence poses a risk of harm, such as in cases of harassment or unsafe conduct, helping the employer meet OHSA obligations.
How do suspensions work differently in unionized workplaces?
In unionized settings, suspensions are governed by the collective agreement, which often allows for unpaid suspensions and includes a grievance process for disputes.
What should I do if I believe I’ve been wrongfully suspended?
Seek written clarification from your employer, review your contract or collective agreement, and consult a lawyer or union representative. Document all communications and avoid resigning without legal advice.