In Hookimawillile v Payukotayno James and Hudson Bay Family Services ( 2019 ONSC 3514) Trembley J. dealt with a supervisor who was put on a indefinite investigative suspension without pay as a result of the death of a child.
A few days later the Plaintiff’s lawyer sent a letter to the Employer claiming that the Plaintiff had been constructively dismissed. A few days after that the Employer purported to fire her for cause for a number of incidents going back over a year.
The Court held that as there was no contractual right to suspend administratively without pay, the Plaintiff had been dismissed without cause.
Furthermore the Court held that ” the defendants cannot be allowed to retrospectively dismiss the plaintiff with cause on grounds that were known or ought to have been known to it when it constructively dismissed her.”
The judge then made the following comment :
58 As eloquently stated in Doucet v. Spielo Manufacturing Inc., 2011 NBCA 44, 2011 CarswellNB 228(N.B. C.A.), “the law should not encourage employers to assume the role of employment archaeologists, looking through the remnants of an employee’s work history, in an effort to unearth grounds for dismissal.”