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Case Summary

Can you suspend an employee during an investigation if there is no contractual clause?

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

There are only a few ways that permit you to suspend an employee who is the subject of misconduct allegations:

  1. Express or implied contractual right in the contract;

  2. Where a formal disciplinary investigation is conducted and a suspension is required under law; or

  3. A right under common law.

Nina Hoang
Published:

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Determining what rights exist when an employer chose to suspend an employee, before an investigation had started

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 [2017] 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.

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Lessons for Employers

  • Your must immediately suspend an employee if you are aware of any serious allegations which place other employees at risk.
  • The suspension must be on full pay so as to not disadvantage the employee or give the impression of a biased investigation.
  • The suspension must be carried out through lawful and reasonable direction.
  • The suspension cannot be indefinite – you must conduct the investigation as soon as possible and discuss the outcome with the employee. Long delays will be considered unjust and not procedurally fair.

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Managing Principal - Victoria

Principal Lawyer and Head of Workplace