Suspended from Work, What is my rights?

Suspension! That word is a nightmare to all employees. Waking up to realise you are going to spend the day feeding the cat and catching up on Netflix sounds like fun. But it definitely isn’t when you are a victim of a workplace investigation. It can be heart-wrenching missing out on your job and wondering what decisions the upper echelon is going to take.

While most employers resort to suspension for any reason, it is pertinent that they proceed with caution while adopting suspension as a knee-jerk reaction. Employees are entitled to some rights even while on suspension and facing a disciplinary workplace investigation. And such rights must be upheld by the employer to avoid a breach of contract.

Employers might decide to adopt alternatives to suspension such as placing the employee under supervision. Removing them from their department. Or allowing them to work from home during the period of their suspension. Not allowing employees to respond to allegations of wrongdoing before suspension could lead to a breach of trust and solidify a claim for constructive dismissal.

If you are currently suspended from work perhaps due to health reasons, pregnancy, or an ongoing investigation, whatever the reason, you need to understand your rights while you wait for the final verdict.

There are two types of suspension:

1. Suspension due to health or safety reasons: If an employee is facing difficulties at work due to their health, such a person may be suspended to enable them to deal effectively with their condition.
2. Suspension due to workplace investigation: If an employee is alleged to have committed a serious and questionable offense, they might be suspended for a limited period of time while a workplace investigation is conducted.

Suspending an employee could be to highlight the following reasons:

• The gravity of the issue that is under investigation.
• To alienate the employee from the work environment and avoid them interfering with evidence.
• To enable the employer to carry out such investigation without any form of bias.
• To cease communication between the employees and other workers or customers which may become detrimental to business.
• To serve as an excuse to get the employee and leave.

Is being suspended the same as being stood down?

Some employers may use the terms suspension and stood down interchangeably. However, the two terms have different meanings. A suspension occurs when an employee is subject to a workplace investigation following some form of misconduct. The employee will typically still receive pay during a suspension. However, this may not be the case if they are a casual employee.

A stand down is when an employer can not provide useful work for an employee. This could be for one of many different reasons, of which are beyond the control of the employer. An employer may stand down an employee because:

• Of an industrial action. For example, one organised by the workforce of its suppliers.
• It does not have adequate materials or supplies to produce its goods or services.
• There has been a power outage, a flood or fire at its place of business. For instance, at its factory, processing centre or retail outlet.
• Key machinery or equipment has broken down.

An employer is entitled to stand down an employee if the stoppage of work can not be reasonably attributable to their actions. The main difference between a suspension and a stand down is that an employee typically still receives pay for the former. While for the latter, they do not receive pay.

Another term that may be confused with suspension and a stand down is a shutdown. In this case, an employer is allowed to shut down their workplace for a limited period when business is typically slow. For example, over the Christmas and New Year period.

When suspension involves workplace investigations

Often, if an employee is accused of some form of serious misconduct, the employer will conduct a workplace investigation. This is typically the case with allegations concerning assault, theft or fraud. The employer may suspend the employee before or during the workplace investigation.

A workplace investigation will aim to determine if the allegations of misconduct against the employee are in fact true. It could be undertaken by the employer itself or via a third-party agency.

What can get me suspended from work & the letter?

There are several reasons why you might be suspended from work. Some of them include:

• Exhibiting violent or aggressive behaviour.
• Occupational hazard or health reasons.
• An alleged claim of sexual harassment or inappropriate behaviour.
• Sending pornographic content to co-workers.
• Causing reputational damage to the company.
• Reckless or negligent behaviour.
• Discriminating against a colleague based on their sex, race, religion, sexual orientation or any other protected characteristic.
• Bullying or harassing a colleague.
• Being under the influence of alcohol or drugs while in the workplace.
• Refusing to comply with a lawful and reasonable direction.
• Continuous complaints of a behaviour you have been warned against in the past.
• Performance issues that affect the company’s viability or profit.

A Suspension letter should highlight:

• The reason for and duration of the suspension.
• The employee’s rights and obligations during the suspension period.
• Information detailing that being placed on suspension is not an assumption of guilt. But rather, it is part of the process while a workplace investigation takes place.

What are my rights while on suspension?

As a suspended employee, you have the right to procedural fairness during a workplace investigation. This implies that the procedure by which the decision is made must be fair and free from bias. And that the employee is given a fair chance to respond to any allegations. That is, prior to the employer taking any disciplinary action or deciding to dismiss them.

Often called natural justice, procedural fairness entails a number of rights that all Australian employees are entitled to. During a workplace investigation, procedural fairness obligates employers to:

• Ensure that the workplace investigation is conducted by someone that is unbiased and does not have a conflict of interest.
• Communicate the nature of the allegation to the employee in a clear and understandable way.
• Provide all germane evidence and material related to the accusation to the employee.
• Give the employee an opportunity to provide a response to the allegation. They must be allowed to share their side of the story as well as any mitigating circumstances that could be in their favour.
• Allow the employee sufficient time to put together a response to the allegation.
• Genuinely assess the employee’s response to the allegation.
• Not make any decision to discipline or dismiss the employee prior to the workplace investigation reaching its conclusion.
• Make a decision regarding any disciplinary action or dismissal by considering all the evidence collected during the workplace investigation.
• Allow the employee to seek advice or have a support person present in any discussions regarding their allegation.

Some signs that you are being denied procedural fairness include:

• The allegation made against you is not clearly communicated to you.
• Raising other allegations about unrelated or trivial cases.
• You are not provided with all pertinent material or evidence supporting the allegation made against you.
• You are not given the opportunity to respond to the allegation and share your side of the story. Or your employer does not give you adequate time to prepare a response.
• The investigation is conducted by a key witness leading to a conflict of interest.
• A decision is made before the investigation is completed.
• Being dismissed while the investigation is still ongoing.

Under the Fair Work Act 2009, employers ultimately have broad powers to take ‘reasonable management action’ when conducting a workplace investigation. This does not have a specific legal definition. Rather, it is at the employer’s discretion of what they deem to be ‘reasonable’. This makes it difficult to determine when your employer is acting unreasonably during a workplace investigation.

It is important to note that you can only be investigated for an act committed in the workplace or connected to work. Your rights, while suspended, include whether or not you should be paid. While suspended, you should be paid as you are still an employee of your company. However, an extended period of suspension might lead to a voluntary resignation from the employee and constitute a case for constructive dismissal.

Gary Pinchen

Do I need to comply with my suspension?

As an employee, you are required to comply with any lawful or reasonable direction of your employer. If your employer has placed you on suspension, this is generally considered a lawful and reasonable direction.

However, employers do not possess unlimited powers to place an employee on suspension for any reason. Nor for an indefinite period of time. An employer must ensure that the suspension is appropriate and reasonable. They therefore must take into account several considerations.

These include considering the terms of the employment contract. Whether the employee needs to be suspended to ensure the health and safety of the workplace. And the effect that a suspension can have on the employee’s right to work.

A measure of common sense is required when suspending an employee, because each suspension has a unique set of circumstances.  

What if your allegation is substantiated while on suspension?

If the workplace investigation corroborates the allegation levelled against you. And this leads your employer to consider dismissing you, you have the right to show cause as to why you should not be dismissed.

Typically, your employer will provide you with a show cause letter or via a show cause meeting. The purpose of a show cause notice is to allow you the chance to respond to the outcome of the workplace investigation. And importantly, why you should not be dismissed.

In a show cause letter or meeting, it is a good idea to outline all the positive contributions you have made during your employment. Also, any mitigating circumstances and how you intend to improve if you are allowed to remain in your role.

Employee challenges suspension via Fair Work Commission

The issue of when an employer has the right to place an employee on suspension was explored in the Federal Court of Australia case Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859.

The case involved 58-year-old dentist Dr Arnaldo Avenia. He took his employer RTHF to court alleging adverse action while he was serving a suspension.

It all started when Dr Avenia’s dental practice was purchased by RTHF. This saw him become the Principal Dentist at RTHF’s Brisbane Clinic. However, Dr Avenia soon brushed some of his new employer’s staff the wrong way. This started with a few very direct and questionably written emails.

In one, Dr Avenia told his colleagues that he had “cleaned up the crusty vomit that everyone else in the organisation was happy to step over for the last 4 days.” In another, he responded to a mundane request for details about staff arrangement by saying “Don’t go mucking me around.”

Dr Avenia was soon warned via email by a manager to “tone done” the way he was addressing staff via email. But his aggressive manner soon transferred into his verbal interactions with colleagues. After his idea was shut down during a meeting about how the business should be run, Dr Avenia yelled the following at a manager who was in the meeting: “You do what I do, regardless of what they do in Sydney.”

So bad was Dr Avenia’s general behaviour that staff soon started documenting it. This included name calling, threats and disrespectful comments. He had called a staff member a “drama queen.” And told another staff member that he would “make [her] job hell.” He also regularly berated colleagues and belittled their efforts, using a loud and aggressive tone. He also made humorous comments that could be construed as racist.

Dr Avenia is placed on suspension due to bullying complaints

After staff members couldn’t handle any more of Dr Avenia’s behaviour, they made several bullying complaints to human resources. The complaints were forwarded to Dr Avenia, and he was told that a workplace investigation was not yet underway. This was in the hope that the issue would play itself out to a resolution on its own.

The next day, Dr Avenia received a suspension letter that alleged that he had bullied his colleagues. He was told that he would be placed on suspension while a workplace investigation was conducted, receiving full pay. The letter outlined that he had breached RTHF’s code of conduct and bullying policy.

The suspension letter stated that Dr Avenia would be provided with the chance to make a response to the bullying allegations. And that if they were corroborated by the workplace investigation, he could face dismissal. It did not, however, outline the exact details of the bullying allegations levelled against him.   

Dr Avenia seeks legal advice, is given show cause letter

Dr Avenia soon sought legal representation and was advised that RTHF had violated his right to procedural fairness. Namely, because the company had already made the decision to dismiss him before the workplace investigation was carried out.

Under legal advice, he also told RTHF that he could not attend an investigation meeting. This was because the company was yet to fully outline the details of the allegations made against him. As such, he declined to attend any further meetings to discuss the allegations. This all served to extend his period of suspension.

This led RTHF to send Dr Avenia a show cause letter, which stated that he had the opportunity to explain why he should not be dismissed. It also stated that he had breached his employment contract by refusing a reasonable and lawful direction. That being, his refusal to turn up to the investigation meetings.

Dr Avenia is dismissed for serious misconduct

Feeling that his rights had been infringed, the very next day Dr Avenia lodged a General Protections claim with the Fair Work Commission. In it, he stated that he had exercised a workplace right by making a complaint. Namely, that RTHF had failed to afford him procedural fairness. And that by receiving a show cause letter, the company had committed an unlawful adverse action against him.

Dr Avenia would then obtain an interim injunction from the Federal Court of Australia. This prevented RTHF from carrying out its workplace investigation. This was because he had a concern that the company would dismiss him while his Fair Work Commission claim was being actioned.

However, the Federal Court of Australia eventually repealed the injunction. And shortly thereafter, Dr Avenia was dismissed for serious misconduct by RTHF.

Was Dr Avenia’s suspension legal?

As part of Dr Avenia’s General Protections case, one of the questions the Federal Court of Australia had to answer was whether RTHF had the right to place him on suspension. The company had argued that employees were required to comply with a “reasonable direction.” This was outlined in Dr Avenia’s employment contract. Therefore, RTHF argued that requiring him not to turn up to work while being suspended was a reasonable direction.

However, Dr Avenia contended that there was no clause in his contract that outlined that he could be placed on suspension with or without pay. He also argued that RTHF had not provided a reason why he had to be suspended. This was because they had not conducted a “formal disciplinary investigation.” He argued that the suspension was ordered in “bad faith.”

The Federal Court of Australia found that Dr Avenia was correct in saying there was no specific clause regarding suspension. But when considering the matter in accordance with common law, the court found that RTHF had acted lawfully and reasonably by suspending him.

This was because it was reasonable to suspend Dr Avenia before undertaking an investigation as it related to workplace health and safety. RTHF had a duty to provide its staff with a safe working environment. Which meant that Dr Avenia, because of his alleged bullying, could not be there. The suspension was also reasonable as Dr Avenia understood that it would not be indefinite.

Was Dr Avenia legally required to attend investigation meetings?  

The second question that the Federal Court of Australia had to answer was whether RTHF was legally entitled to require Dr Avenia to attend investigation meetings. The court also had to determine whether the company had violated its contractual duties while attempting to undertake a disciplinary and investigatory process.

Dr Avenia was directed to attend several investigation meetings. The court found that it was unreasonable to direct him to the first meeting. This was because the suspension letter he received prior did not outline the details of the allegations made against him. This left Dr Avenia perplexed as to how to respond.

However, RTHF had stated that he did not have to issue a response in this meeting. Rather, the meeting’s purpose was to outline the bullying allegations in more detail. After this was communicated to Dr Avenia, it was therefore reasonable for him to attend any further meetings.  

Federal Court of Australia rejects General Protections claim

Ultimately, the Federal Court of Australia ruled that RTHF had not committed adverse action against Dr Avenia. Nor that it had dismissed him for exercising a workplace right. The court found that the company had sincerely tried to resolve staff complaints about Dr Avenia’s alleged bullying. And that RTHF had grounds to dismiss him.

Dr Avenia’s General Protections claim was therefore dismissed.

What if my rights are violated while on suspension?

There are a number of ways to seek justice if your rights have been violated while on suspension.

If the workplace investigation is ongoing, you can take action via the Fair Work Commission to prevent unjust disciplinary action or termination through (Form F8C).

If the workplace investigation has concluded and you have returned to work unfavourably, you may also be able to pursue a General Protections Application.

If the workplace investigation has concluded and you have been dismissed from your employment, you may be eligible for an Unfair Dismissal Application (Form F2) or a General Protections (Involving Dismissal) Application (Form F8).

Through this application, you may seek to have the issue resolved and return to a safe work environment. Or seek an exit package consisting of compensation and resignation. This can be done within 21 calendar days from the date the dismissal took effect.

This application helps you seek compensation and restore your employment record by having the termination turned into a resignation. Then you only have to worry about how to interview after the end of employment.

Unfair Dismissal and General Protections applications – What’s the difference?

Both unfair dismissal and General Protections applications can be made when an employee is dismissed. But they are far from being the same.

With an unfair dismissal application, the Fair Work Commission aims to determine if the employee’s dismissal was harsh, unjust or unreasonable. In general terms, an unfair dismissal claim will determine if the employee deserved to get dismissed. Whether they received appropriate warnings. And if they were afforded procedural fairness prior to being dismissed.

With a General Protections application, the Fair Work Commission aims to determine if an employer has taken adverse action against an employee. Namely, due to the employee exercising a workplace right or taking part in an industrial activity.

An adverse action could be that they were dismissed. But it can also include a wide range of other actions. For instance, demoting the employee. To be eligible to make a General Protections claim, the final adverse action by the employer must be a dismissal of the employee.

A General Protections claim will also determine if the employee was discriminated against based on their sex, race, religion or other protected characteristic. There are also significant differences in the eligibility criteria of unfair dismissal and General Protections claims.

Wrapping up

Handling conflicts in the workplace and settling cases of employees’ serious misconduct is no small feat. This decision should not be made on the number of strikes (warnings) an employee receives. Disciplinary actions must be fair to both parties. And an employer should only resort to a suspension when all alternative means have been exhausted.

Even as a suspended employee, you have rights and you should ensure they are not breached. Outright suspension of an employee without giving them a fair chance to respond to the allegations can constitute a constructive dismissal case. In constructive dismissal, the onus of proof lies with the employee. You will need to prove that your employer breached a fundamental part of the employment contract by suspending you.

Whatever allegations you might be facing in a workplace investigation, it is important to seek help early in the process. Making a General Protections application through the Fair Work Commission can help you seek compensation. It can also help you restore your employment record by having your termination turned into a resignation.

The Fair Work Commission tribunal serves as a middleman for cases between employers and their employees. As an employee on suspension, we at A Whole New Approach can help you if you feel that your rights have been infringed. If it feels like you might soon be facing a constructive dismissal, we can provide the guidance you need to take action through the Fair Work Commission.

Why choose us? Because we have over two decades of experience helping Australian workers fight for their rights. Out team of experts have lodged over 16,000 General Protections or unfair dismissal applications through the Fair Work Commission.

Plus, we offer a no win, no fee service. And you first consultation with us is completely free and confidential. Call us now on 1300 766 700 to take action and ensure your employer does not violate your rights while on suspension.