Leave with pay or without pay while criminal charges are pending?
It is not unusual for employers to be advised to suspend unionized employees with pay if there are criminal charges pending that may impact their employment status. The arbitration award in Ontario Nurses’ Association v Cambridge Memorial Hospital, 2012 CanLII 74062 (ON LA) sets a high threshold for employers seeking to suspend an employee without pay .
In November 2011, a nurse was charged with possession and trafficking cocaine. While the charges were unrelated to the grievor’s employment, given the responsibilities and access a nurse may have to controlled substances, her employer placed her on leave pending the outcome of the criminal proceedings. Initially, this was leave with pay. However, because the charges were to be held over an indefinite period of time, the employer changed the leave status to unpaid leave in February 2012. The nurse asked if she could go back to work, but the Employer refused. The Union grieved that the forced leave amounted to a suspension without just cause.
The arbitrator found that the employer failed to prove that these charges harmed the Employer and ordered that the employee be returned to work. In reaching this decision, the arbitrator remarked that there were two competing interests: the interests of the Employer to operate in an efficient and orderly manner as well as the grievor’s right to be presumed innocent and the need to maintain her livelihood pending the outcome of the charges. To allow the interests of the Employer to prevail, the existence of the criminal charges must give rise to a legitimate fear for the safety of other employees, of property, or of substantial adverse effects upon business. The test was set out in Ontario Jockey Club (1977), 17. L.A.C. (2d) 176:
- Does the presence of the grievor in the workplace gives rise to a serious and immediate risk?
- Is the nature of the charge is such as to be potentially harmful to the Employer’s reputation?
- Does the charge render the employee unable to perform his or her duties, or
- Does the charge have a harmful effect on other employees or customers?
- The Employer must investigate the criminal charge in an attempt to assess the risk of continued employment.
- The Employer must take reasonable steps to ascertain whether the risk of continued employment might be mitigated.
- There is a continued onus on the Employer to consider reinstatement if new facts or circumstances come to the attention of the Employer.
In Cambridge Memorial, the arbitrator held that while the charges were notorious when first laid, any excitation would have dissipated over time.
This decision does not necessarily undermine the Employer’s ability to hold an employee out of the workplace on an administrative suspension (with pay) pending the outcome of criminal charges. However, by denying the employee income, the Employer is effectively applying a disciplinary penalty on the employee and must meet the just cause test.