There is an emerging trend for employers to suspend employees the moment any potential disciplinary issue arises. However, the result is that employees are often needlessly forced to be away from the workplace which can be both soul destroying for the employee and counter productive for the employer. Having an employee sitting at home on paid suspension for any length of time is a waste of resources. It can also be difficult for a suspended employee to return to the workplace (assuming their employment is not terminated).
There are also legal risks for employers. Unless there is a specific contractual term, there is no implied common law right to suspend an employee and an employee may be liable in damages for breach of contract. The terms of any award/enterprise agreement (EA) suspension provision should be carefully followed. If an employee is covered by an award/EA, they may be able to raise a dispute in the Fair Work Commission (FWC) taking issue with the need for suspension. If there is a suggestion that the suspension involves unlawful discrimination or workplace bullying or adverse action under the general protections provisions of the Fair Work Act, then the employer may find itself in the FWC (potentially facing a reverse onus of proof) or a discrimination tribunal or having to answer to the Fair Work Ombudsman.
To minimise risk, suspension should be reserved for the most serious of cases involving allegations of sexual harassment, extreme bullying, fraud, theft, assault, intoxication and the like. There should be initial evidence (not just mere suspicion) of wrongdoing and a real threat (not just a mere possibility) that:
- the employee will interfere with witnesses in any investigation; or
- the employee will sabotage employer assets such as IT resources; or
- the conduct will be repeated if the employee remains in the workplace.
Any suspension should be for the shortest possible period and the employee should be paid during the suspension period to minimise the risk of legal action. Clear communication should be given to the employee about why they are being suspended, the steps the employer will take to investigate the matter, the expected period of suspension and that no disciplinary decisions have been taken. There should be a point of contact for the employee, counselling should be made available and they should be advised of any delay. A measured approach will pay dividends in the long term.