​10 things to know about suspending an employee

Analysis

​10 things to know about suspending an employee

Ever had to suspend an employee? Alison Williams provides 10 practical tips for dealing with this issue.

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Ever had to suspend an employee? This employer's tale will provide you with practical tips when deciding whether or not suspending an employee at your workplace is appropriate.

You’ve just encountered one of your employees, Jason, smoking marijuana during work hours ‘behind the back shed’ at the workplace. This is the sort of conduct where you might want to suspend an employee while you collect your head and work out your next course of action. 

1. Can I suspend without pay?


In Australia it is rarely legal to suspend an employee without pay, especially when the employee has not had a chance to explain their actions.

However, it will usually be legal to ask the employee to leave work, as long as the employer pays them during the suspension. 

Some enterprise agreements, awards, employment contracts or policies may provide for suspension of employment (either with or without pay) in specified circumstances. Always check your award, agreement or contract before suspending an employee.

Even if these documents allow suspension without pay, it is not generally recommended as it can result in back-pay (for example if the employer conducts an investigation and the suspended employee is ultimately found to be innocent) or other ramifications for the employer. It can also imply a pre-judgment about whether the employee is guilty or not.

2. When would I suspend an employee?


An employer will usually look at suspending an employee after an act of misconduct or a serious allegation is raised that requires the employee not attend the workplace while the employer determines what to do.

‘Misconduct’ is usually understood as “an act done wilfully with a wrong intention”. While the Fair Work Regulations don’t define misconduct, they do define ‘serious misconduct’  as follows:
  • wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment
  • conduct that causes serious and imminent risk to the health and safety of a person, or the reputation, viability or profitability of the employer’s business
  • theft
  • fraud
  • assault
  • the employee being intoxicated (alcohol or drugs, other than prescribed drugs) at work
  • the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

3. Investigate prior to suspension


If you dismiss someone for serious misconduct, you don’t have to provide payment for notice of the termination which means you only have to pay them up to the date of their dismissal.

But before you get to instantly dismissing an employee you need to conduct an investigation. Which is where you might want to consider suspending Jason. Often the events surrounding a termination of employment for serious misconduct (or sometimes misconduct) are so serious that you do not want the employee in the workplace.

It is very common for suspensions to occur while investigations into misconduct or allegations are being carried out.

4. How to suspend an employee


Jason’s supervisor should immediately tell him not to work for the rest of the day and that he will be suspended pending an investigation. Jason should be informed about whether or not he will be paid during the suspension and he should be provided with a written letter confirming the suspension. 

As discussed above, suspension without pay is not generally recommended unless the employer has specific documentation and circumstances that allow it. You should seek legal advice before suspending an employee without pay.

5. Prepare for an investigation meeting with the employee


During the rest of the day, you should make a careful record of what has happened so that the incident/ allegations can be put to the employee in an investigation meeting. Any witnesses should also be interviewed and their answers recorded.

This may take more than a day. If this is the case, Jason should remain suspended until all documentation and interviews are complete. 

The quicker you conduct an investigation meeting with the employees in question, the quicker findings will be made and the suspension ends. This will save your business time and money.

6. Put the allegations to the employee


Jason should be asked to come into work once you have prepared the allegations that you wish to put to him. Tell him that he is entitled to bring a support person with him.
 
If Jason belongs to a union, he is allowed to invite a union representative to the meeting.

7. Listen to the employee's response


Once you have heard Jason’s response, you will need to make a decision on what is the appropriate response. End the meeting and either ask Jason to remain outside the meeting room and wait for your response, or if there is more follow up required, send Jason home. He will still be suspended, with pay, until the investigation is complete and you provide him with a formal response. 
  
You should clearly communicate to him whether or not he is still suspended after this meeting.  

8. Make a considered decision so you can end the suspension


We’re not going to go into the disciplinary/termination process in any detail in this article, but if Jason has not got a satisfactory explanation then you may decide to dismiss him. This might be the case if an employee has breached a company policy (such as a zero tolerance drug and alcohol policy) or is found to of engaged in serious misconduct (after the investigation concludes). 

Or you could decide to keep him on, but give him a formal warning that if there is a repeat incident then he will be dismissed, and possibly require him to undergo counselling to end his drug problem.  

If an investigation does not substantiate the alleged incident, you may not be in a position to give the employee a warning at all.

9. Still on suspension? Terminate or bring the employee back to work!


The period of suspension will generally end when Jason returns to work (either with or without a warning), or his employment is terminated for cause. 

Be careful. You need to cease any suspension once the investigation is complete. The employee cannot simply remain on suspension (without reason) after the investigation concludes and findings have been made.

10. Have a policy


Finally, ensure you have the right policies in place to deal with workplace issues.

Our sister site HR Advance provides a range of downloadable policies and documents. You can use the Record of Meeting document to create an immediate record of the meeting with an employee to discuss poor conduct.

Or there is a Show Cause Letter to Employee if you consider there are sufficient grounds to terminate an employee's employment. The purpose of this letter is to inform an employee that, while the employer has grounds to dismiss them, he/she is being given an opportunity to show cause as to why action should not be taken to terminate his/her employment.
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