One of the most difficult aspects of a workplace investigation is the moment when the investigator or employer realises the immediate suspension of an employee is required.
We examine the warning signs that a suspension might be necessary, as well as the best way to handle this complex eventuality.
The what and why of suspension
Most investigations will follow a relatively regular pattern. The workplace investigator gathers information, a report is submitted and disciplinary action may or may not be taken by the employer. However, occasionally events can arise, requiring that an employee be suspended immediately before or during the investigation. Two questions arise – when and how should suspensions occur?
Suspension involves a compulsory period of absence from the workplace for the employee in question. Suspension will include full pay and any other entitlements accruing to the employee. This is in contrast to an employee being ‘stood down’ – where the employer has no further work available and payment is not required.
gauging the necessity of suspension
So when is it warranted to suspend an employee during the course of a workplace investigation? Of course employers must do their best to prevent a workplace difficultly from snowballing in the first place. Preventative measures and policies will hopefully reduce the likelihood of misconduct occurring.
Yet at times, a suspension becomes necessary before or during the course of an investigation. The types of serious misconduct that can require suspension include suspected fraud, assault or theft. A suspension will also be necessary if there is a serious possibility that the employee might tamper with evidence, or disrupt the investigative process.
A ‘suspicion’ of misconduct cannot be a mere whispered rumour or gut feel. In essence, a prima facie case (a reasonable assumption on available evidence) should exist to demonstrate that the employee in question has in all likelihood engaged in a serious act of misconduct.
The rules of procedural fairness dictate that the investigation be even-handed and impartial throughout – with no recommendations of any kind being made by an investigator until the compilation and presentation of the investigative report.
However, sometimes allegations are particularly serious and time is of the essence. A risk assessment is required, as well as communication between the investigator and the employer regarding their immediately concerns.
is a suspension a ‘legal and reasonable’ direction?
In the case of Avenia v Railway Transport and Health Fund [2017], the Federal Court held that employers can issue ‘legal and reasonable directions’ to staff, with such directions including suspensions. Dr Avenia was the subject of an investigation into allegations of misconduct and was suspended on full pay, pending the investigation.
The court found that this action by the employer was legal and reasonable due to the nature of the allegations and did not constitute, as Dr Avenia claimed, a case of unlawful termination.
balancing considerations
Suspension during a workplace investigation can certainly create unique challenges. The suspended party might become quite uncooperative and other staff might make assumptions about this person while providing evidence. A clear description of the suspension process must be provided within the investigative report, and a communication strategy put in place by the employer.
Procedural fairness is the centrepiece of workplace investigations. However, employee welfare, health and safety are also essential considerations. Thorough documentation should be kept of any suspensions, with workplace investigators taking detailed evidence from the employer and others regarding this complex situation.
If an employee engages in misconduct and the employer suspends them before the disciplinary investigation, a fair procedure must be followed. If you need assistance on how to investigate and/or how to respond to inappropriate workplace behaviour, contact WISE today!
