Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859

Avenia FWC

Introduction

The following High Court case discusses the reasonableness of a workplace suspension, and in what circumstances suspensions are appropriate. It is standard practice for an employer to suspend an employee pending a workplace investigation. However, this case delves into the fact that the rights of employers are not omnipotent when directing a suspension.

Facts

Dr. Arnaldo Avenia (the Applicant) is a dentist that became an employee of RTHF (the Respondent) after they bought Dr. Avenia’s business. He would continue his dentistry work in the RTHF Brisbane Clinic as a ‘Principle Dentist’. However, issues arose soon after Dr. Avenia transferred to the new business. Dr. Avenia did not easily integrate into RTHF and began having disputes with other RTHF employees. Dr. Avenia was seen as very direct and had a habit of swearing and name-calling. One example is calling a colleague a ‘drama queen’. This led to a number of bullying complaints being raised to management against Dr. Avenia. Dr. Avenia was made aware of the complaints but was specifically told that no formal investigation had started. Allegedly, in the hopes that the disputes would be resolved on their own.

A Suspension Letter and allegations were given to Dr. Avenia the following working day. Dr. Avenia was suspended with full pay until the end of the formal investigation. The allegations included failing to comply with the Code of Conduct regarding personal and professional conduct. And failing to comply with the Bullying Policy. These encompassed examples of belittling, yelling, and threatening colleagues. The Suspension Letter included that he would be given an opportunity to respond and that the investigation could result in his termination. At this moment in Dr. Avenia’s suspension, he had not been provided with the details of the allegations against him.

Dr. Avenia had gone to collect legal advice and representation. Where he was advised to complain that RTHF had not complied with their obligations of procedural fairness. Stating that RTHF had already decided to dismiss Dr. Avenia prior to the conclusion of the investigation. Furthermore, it was not possible for Dr. Avenia to attend an investigation meeting when he had not received the details of his allegation. Further prolonging his suspension. All subsequent meetings to discuss the allegations were refused by Dr. Avenia.

Eventually, RTHF sent Dr. Avenia a ‘show cause letter. Giving Dr. Avenia an opportunity to provide his reasoning as to why he should not be dismissed. Apparently, his refusal to attend investigation meetings constituted a failure to comply with reasonable direction from his employer, and thus a breach of his employment contract. The following day Dr. Avenia lodged a General Protections claim to the Fair Work Commission. Dr. Avenia exercised his workplace right to complain that RTHF had not provided him with procedural fairness. Then was provided a ‘show cause’ letter as an unlawful adverse action against him. Lastly, Dr. Avenia obtained an interim injunction to prevent RTHF from continuing its investigation. With the fear that they would dismiss Dr. Avenia during the Fair Work proceedings.

The injunction was eventually removed by the Court, where RTHF dismissed Dr. Avenia for serious misconduct.

Suspension

A major issue, in this case, was whether RTHF had the right to suspend Dr. Avenia. Giving him ‘reasonable direction’ not to attend work per their employment contract. Dr. Avenia argued that there was no specific clause that allowed RTHF to suspend him with or without pay. Additionally, RTHF had not conducted a ‘formal disciplinary investigation’. Therefore no appropriate reason as to why he had to be suspended at all, and that it was done in ‘bad faith’. Lastly, RTHF’s actions were inconsistent with the implied terms of their contract.

As there was no express term that allowed RTHF to suspend Dr. Avenia. The Court looked toward common law and found that RTHF’s actions to suspend Dr. Avenia were lawful and reasonable. In these circumstances it was reasonable to suspend Dr Avenia prior to commencing a formal investigation as it pertained to the workplace’s health and safety. RTHF also had an obligation to provide a safe working environment, which required Dr Avenia to be suspended for a period of time. Secondly, there was an understanding that the suspension would not be indefinite.

Attending Meetings

The second issue was whether RTHF had the lawful right to direct Dr. Avenia to attend investigation meetings. Including whether RTHF had breached its contractual duties while trying to undergo a disciplinary and investigatory process.

There were multiple meetings that Dr. Avenia was asked to attend. It was found that the initial meeting after the Suspension Letter was sent was an unreasonable direction from RTHF. Due to the confusion as to how Dr. Avenia was supposed to respond without receiving details of his allegations. However, RTHF had clarified that he did not need to provide his response, but the meeting was for RTHF to explain the allegations in greater detail. After their clarification the directions for Dr Avenia to attend meetings became reasonable. As it followed the natural and necessary steps of a fair investigation procedure.

Outcome

The Court had found that RTHF did not act against Dr. Avenia or was motivated by him exercising his workplace right. RTHF had genuinely acted in an attempt to resolve the colleague’s complaints and disputes against Dr. Avenia. Therefore, Dr. Avenia’s General Protections claim was dismissed. Furthermore, the Court found that RTHF did have the grounds to dismiss Dr. Avenia as he breached his employment contract.

Conclusion

This case demonstrates how employers are not granted ultimate powers to suspend an employee for any reason, or for an indefinite amount of time. There is a degree of appropriateness and reasonability that must be considered. Necessary considerations include the terms of the employment contract, whether suspension is necessary for the efficacy or employee safety in a business, effects on an employee’s right to work, and duration. Each suspension is unique to the circumstances of an employee therefore common sense is required when debilitating on these considerations. Furthermore, an employment contract is not solely dependent on the clauses of the contract. But wider common law will also be considered.