When faced with an allegation of serious misconduct made against a worker, an organisation may seek to suspend the respondent.
But in what situations is it appropriate to take this kind of action?
tHE LEGALITY OF SUSPENSION
When taking the significant step of temporarily suspending an employee, an organisation must be able to demonstrate an objectively good reason for doing so.
Once preliminary enquiries have indicated that there is prima facie evidence to support an allegation of serious misconduct, a risk assessment needs to be carried out, to determine what the risks are associated with suspending or not suspending the respondent.
The risk assessment should include:
- Risks to the complainant and other workers should the respondent remain in the workplace and the potential psychological impact this may have, especially in cases of sexual harassment
- Risks of the respondent interfering with witnesses or tampering with evidence
- Potential impact of suspending or not suspending the respondent on the morale of the workforce and the reputation of the organisation
- Potential impact of suspension on the respondent
- Whether the suspension or non-suspension is in accordance with the relevant disciplinary policy.
Generally, it is appropriate to suspend a worker if an investigation into their serious misconduct is being carried out, and their continued presence in the workplace may jeopardise the process. This could include concerns about the misconduct continuing undue influence on or harassment of witnesses, or safety and security issues.
It is important to bear in mind the distinction between ‘standing down’ and ‘suspending’ an employee.
In a ‘stand down’ situation, the employee has not necessarily done anything wrong but the employer cannot usefully employ them for reasons that are outside the employer’s control – for example, a fruit picker who cannot continue working during a significant weather event. In those situations, the employee is not paid during the stand down period.
However, during a suspension period, the employee remains entitled to all rights of their employment contract, except the right to attend work to undertake work duties.
An alternative to suspension could include redeploying the employee into another area, if the conduct is not of the most serious kind and or if the employer has an alternative site or role available.
Circumstances leading to suspension
Suspension should only be utilised in the most serious situations, where the only appropriate next step would likely be termination of employment.
As such, appropriate circumstances leading to a suspension of an employee generally include accusations of serious misconduct such as defined in Regulation 1.07(2) of the Fair Work Regulations 2009 (Cth):
- Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
- Conduct that causes serious and imminent risk to the health or safety of a person; or
- Conduct that causes serious and imminent risk to the reputation, viability or profitability of the employer’s business;
The employee, in the course of the employee’s employment, engaging in:
- fraud; or
- The employee being intoxicated at work; and
- The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
Generally, it is appropriate for an employee to be suspended at the beginning of a workplace investigation, although the employee can be suspended during the course of the investigation if it becomes apparent that their presence is or could be interfering with the investigation.
Appropriate conduct by an employer during a suspension
During a period of suspension, an employee is generally asked to keep away from the workplace, colleagues and clients of the business. If they are on full pay then they are generally not entitled to conduct any outside of work employment without the employers consent.
Although a suspension may be the precursor of a final dismissal once the investigation has been finalised, employees who have been suspended remain entitled to a number of rights, including:
- Full pay during the period of the suspension
- Regular review of the suspension period
- An endeavour to keep the suspension as short as possible
- A clear explanation of the reasons for the suspension and the anticipated length of the suspension
- An explanation of the employer’s expectations of the employee during the suspension period, such as requiring the employee to be available by telephone during normal business hours.
- An assigned contact within the human resources or management team with whom the suspended employee can liaise.
Avoiding further legal issues
Suspending an employee from the workplace is a serious intrusion on their employment and personal rights. It is essential that employers ensure that all criteria of appropriate conduct are met, in order to avoid a situation where it may be argued that the suspension amounted to a constructive dismissal. Ensuring procedural fairness, transparency and clarity in the process will assist with this objective.
If you require assistance with a workplace investigation where an employee has been suspended, contact us. We provide full independent and transparent investigation services, or supported investigations where we offer advice and guidance as you compete the process.