Expired certifications: can you suspend someone?

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Expired certifications: can you suspend someone?

Can you suspend employees without pay if their required certifications have expired? Paul Munro explains.

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Can we suspend employees without pay if their required certifications have expired?

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Q Our employees are required to have first aid, CPR and Blue Card (working with children) certifications. These can expire whilst in our employment. We track these in terms of expiry, but sometimes we cannot get an employee to complete the renewals in time. As such we are looking at standing down affected employees without pay when or until they get their certifications renewed and updated.

Can we suspend these employees because they are unable to perform their work because of statutory obligations?

A It is presumed the workers are employed full-time or part-time. Casual employees are employed by the hour and would not be paid for any period not worked.

The most suitable option to take will depend on the period of time in which the employee can have the relevant certification renewed or re-issued.

As the employees cannot perform their work without the necessary certification, the employer should investigate other alternatives.  Such a discussion should take place as soon as practicable after the employer becomes aware of expiration of certifications.

Possible options may include:
  • consulting with employees to consider alternative duties for the period the employee is not certified, such as clerical or office duties. This would require the agreement of the employee
  • determine whether other arrangements could be made that would enable employees to continue to perform the inherent requirements of the job
  • allow employees to take any accrued annual leave
  • direct employees to take any accrued rostered days off or time in lieu entitlements.
There is no general common law right that permits an employer to suspend an employee without pay, although such rights may arise under a contract of employment, the relevant statute or the modern award (where applicable). Having discovered the lack of certification, the employer cannot allow the employees to perform work, as it may breach statutory requirements, as well as insurance arrangements.

The employees could be advised that a lack of certification for an extended period may result in disciplinary action and, potentially, dismissal.

The bottom line: An employee cannot be suspended without pay unless otherwise provided by the contract of employment, the relevant statute or the applicable modern award.
 

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