Mr David Perry v Department of Sustainability and Environment [2013] FWC 2397

Mr David Perry FWC

Introduction

The following case touches on what an employee is allowed to do during the suspension.  A suspension acts closer to an employer using their discretion to ask their employee not to work,  rather than an act of annual leave (or other type of leave). This is because the employer can ask the employee to return to work at any moment. Whereas leave is at the discretion of the employee. Typically any work done during a suspension (with full pay) that is not relevant to their job will require consent from the employers.

Facts

Mr. Perry (the Applicant) was employed by the Department of Sustainability  and Environment (DSE). He was told on 28 May 2012 that he was suspended with pay effective immediately. The suspension was regarding a pending investigation surrounding some irregularities in a project under his control. Some of the irregularities included repayment of invoices, failure to adhere to company purchasing requirements, and budget overruns.

During his suspension Mr. Perry undertook a Defence Reserves Service, in order to help him remove some of the stress of being placed under an investigation. Mr. Perry’s regional manager and direct manager had approved and supported the idea.  He was not directed to take any annual leave in order to undertake the service.  Therefore he would be earning a wage from both his suspended role, and the Defence Reserve Service. Eventually Mr. Perry was allowed to return to work, and his suspension was rescinded, from 23 of July 2012.

On 30 August 2012 Mr. Perry was asked to submit a leave request for the Defence Reserve Service that he completed.  Mr. Perry did not agree with the request but complied and submitted the request in fear he would be terminated otherwise. After the fact there are numerous discussions as to whether Mr. Perry should be allowed to keep the wage earned from the service. Eventually the DSC began making deductions from his salary in order to recuperate the money they lost  from allegedly overpaying him while he was on his suspension.

As neither party could come to a resolution the matter was eventually heard at a hearing.  Where Mr. Perry provided that his suspension letter stipulated that while the suspension was underway he would be allowed to receive an income. Furthermore, Mr. Perry’s direct management and seniors agreed that the idea would be good for him. They were aware that he would be taking the service,  and they had never asked him to submit leave at that time. Mr. Perry also asked to be reimbursed for the ductions from his wages.

Considerations

Deputy President Smith had to consider the relevant legislation in order to make a Determination. A workplace Determination from the Fair Work Commission acts similarly to an enterprise agreement. They considered the legislation of Defence Reserve Leave. Where it states that it is prohibited for employers to hinder an employee from serving in the reserves. The legislation directly states that the employee should face no additional obligations in respect to remunerations, entitlements, workers compensation, or superannuation.

Outcome 

Deputy president Smith found that the DSE could not prevent Mr. Perry from using the Defence Reserve Service. In the same vein the Act does not stipulate an employer’s obligation to pay for any period of Defence Reserve Service. However, Deputy President Smith provided the determination that DSA would pay for the period of Mr. Perry’s service in this circumstance. The Deputy President also mentioned that being suspended with pay is the equivalent of not being required to attend work at the employer’s discretion. It is not the same as taking annual leave.  Therefore an employee would arguably not be allowed to take on other employment while suspended as they may be recalled to duty at any time. Thus,  it is reasonable, with the consent of his seniors, that Mr. Perry would utilise Defence Reserves to occupy his time while suspended.

Overall Mr. Perry’s conduct was appropriate and his attempt to take the Defence Reserve Service was transparent. Furthermore, he had sought to resolve the issue in the proper way. The Deputy President gave no orders to take disciplinary action against DSE.

Conclusion

This case touches upon an issue that some employees may face if they are suspended. What will they do with themselves while they are suspended? As a suspension is treated as though there is no work for the employee, but they are available at any moment. There can be some limitations as to what an employee does during this time. Once a suspension has been rescinded then there is an expectation that the employee will return to work immediately.

This is why most employees would need to ask for permission from their employers if they wish to pursue other employment while suspended with pay. Pursuing other work may hinder the employee returning to the company. There may also be ethical considerations depending if the reason for suspension includes matters of serious misconduct.

Plans to travel or go on a holiday may also be inhibited. Typically it is not recommended to leave for long periods as the employee may not be certain how or when their suspension ends. Employees are allowed to request annual leave during their suspension to combat this issue. However, considering the circumstances there is no guarantee that the employer will approve the leave. Therefore, to pass the time during a suspension employees will predominantly stay at home during work hours and then use their evening and weekends per normal. Additionally, suspensions allow employees additional time to seek legal advice or prepare any documents asked for by the employer.