Employers are obligated to investigate misconduct (particularly allegations involving harassment or bullying) under statutory requirements of doing what is reasonable practicability to provide a safe workplace under safety legislation and the implied contractual term that employers must provide safe places of work.
In the case of Avenia v Railway & Transport Health Fund Ltd  FCA 859 the Court determined that in addition there was a common law right to suspend through issuing a lawful and reasonable direction so long as the following elements are satisfied:
- The employer must have ‘bona fide’ view that the direction is necessary to perform the investigation if the allegations are of risk to the safety and welfare of staff, or necessary to fulfill its duties to provide a safe workplace.
- The direction must be temporary – only for the length that is necessary to complete the investigation.
Based on this it was a lawful suspension even though it occurred before a formal investigation commenced. Employers must remember that they have underlying obligations under safety and employment law to protect employees from any harassment or bullying, while at the same time they must comply with procedural fairness obligations to the alleged perpetrator – an impartial investigation addresses all of this but can only be conducted if the alleged perpetrator is stood down pending the outcome of the investigation.