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(03) 9650 4555 Managing workplaces where large numbers of employees need to interact, and where sometimes issues arise and things go wrong, is challenging for an employer.
In the case of Yvonne Lucas v Ashlor Trimming Service Pty Ltd, highly regarded Senior Deputy President of the Fair Work Commission Les Kaufman warned employers that even in the smallest of workplaces they must not take the easy way out by sacking the wrong person. Employers must follow the correct process when suspending one of their employees.
When faced with a conflict or issue, employers will often suspend one or two workers and tell them not to speak to anyone. This treatment feels as though the employees have been charged with a criminal offence where defendants are not to interfere with witnesses who may testify against them in a criminal trial. Just as retired judge Jennifer Coates told Premier Daniel Andrews that her inquiry did not stop him from answering questions about the breakdown in security in Victorian quarantine hotels, so too there is no rule of law which entitles employers to freeze out employees, not letting them speak to anyone.
It must be noted that employees are obliged to follow a direction not to speak to other employees where it is a reasonable lawful direction. However, that does necessarily justify the employer’s direction or conduct. These directions are often very distressing to employees, especially if they do not know what allegations might be made against them, and the suspension lasts for days or weeks. Such a direction does not demonstrate goodwill on the part of the employer in resolving the issues in dispute or under investigation.
Sometimes employees subject to a suspension may feel the need to resign to relieve their tension. If the employee resigns it is usually taken as a sign of guilt, rather than a sign they are unable to cope with the uncertainty created by their employer. When an employee resigns, they often burn their employment rights for all practical purposes. To argue constructive dismissal is a difficult row to hoe.
McDonald Murholme can often assist employees during the suspension period by providing legal advice, which is usually required at short notice.
Get in touch with the employment lawyer who has acted for thousands of employees like you.
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The McDonald Murholme team is headed by Mr Alan McDonald.
Contact UsJust because an employer has an apparent right to suspend employees does not mean that a suspension is necessarily lawful. Employers must make sure that they follow the correct procedures relating to suspensions which are usually outlined in the relevant employment contract, enterprise bargaining agreement or governing award. For example, there may be a requirement that the suspension is reviewed at reasonable intervals. If the employer fails to do so, the suspension may be unlawful.
If you work in the Australian Public Service (APS), your employment is subject to the Public Service Regulations 1999. These regulations stipulate that an employee can be suspended if, firstly, there are reasonable grounds to believe that the employee has, or may have, breached the code of conduct, and secondly, it is in the interest of the public or Agency.
An employee who has been lawfully suspended is not entitled to receive payment for the period of the suspension. However, there are certain industries in which employers are empowered to suspend employees either with or without pay.
For example, in the Australian Public Service, Agency Heads have the option of suspending employees with pay. The APS website provides a list of non-exhaustive factors that can be taken into account by the Agency Heads when deciding to suspend with or without pay. These factors include the seriousness of the alleged misconduct, the estimated duration of the misconduct action, and any likely financial hardship the employee will suffer.
It is an employer’s duty to provide and maintain a safe work environment. Part of this duty may see employers reducing any health and safety risks which may be caused by a suspended employee.
Usually, an employee is suspended subject to an ongoing investigation. During this period, an employer would be entitled to revoke access to work emails and other company-related systems to prevent any potential OH&S or policy breach by the suspended employee.
However, if the employment contract includes express terms related to a suspension, the employer is obliged to comply with those agreed terms.
Employers are permitted to suspend employees whilst they undertake an investigation regarding the suspended employee. This is lawful, irrespective of whether or not there is an express clause related to suspension terms within the contract.
Generally, there is no limit to the length of time an employee may remain on suspension and common law extends suspension to, as long as necessary to undertake and conclude an investigation. However, an extended suspension without pay may lead to a constructive dismissal.
However, if the employment contract includes express terms related to a suspension, the employer is obliged to comply with those agreed terms.
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For additional employment law information please see our pro-bono site Employment Law Online :www.employmentlawonline.com.au