Can I be suspended from work before facing an inquiry or allegation?

Can I be suspended from work before facing an inquiry or allegation?

Suspensions in the workplace

If you work in the Australian Public Service (APS), your employment is subject to the Public Service Regulations 1999. These regulations stipulate that an employee can be suspended if, firstly, there are reasonable grounds to believe that the employee has, or may have, breached the code of conduct, and secondly, it is in the interest of the public or Agency.

 

Is my suspension lawful?

Just because your employer has an apparent right to suspend employees, this does not mean that your suspension is necessarily lawful. Employers must make sure that they follow the correct procedures relating to suspensions which are usually outlined in the relevant employment contract or governing award. For example, there may be a requirement that the suspension be reviewed at reasonable intervals. If the employer fails to do so, the suspension may be unlawful, and you may wish to seek legal advice about the available legal remedies.

On the other hand, it may be the case that your employer had a recognised right to suspend you, however the reason for suspension is unlawful. This could arise if your employer suspends you for exercising a workplace right. For example, every employee has a right under the Fair Work Act 2009 (Cth) to take paid sick leave when not fit for work due to personal illness or injury. If your boss has suspended you because you took 3 days of paid sick leave, the suspension could amount to the taking of adverse action against your workplace right. In this scenario, you should seek legal advice in relation to your eligibility to make a general protections application.

 

Will I continue to be paid while suspended?

In most cases, an employee who has been lawfully suspended will not be entitled to continue receiving payment for the period of the suspension.

Nevertheless, there are certain industries in which employers are empowered to suspend employees either with or without remuneration. In the aforementioned example of the APS, Agency Heads have the option of suspending employees with pay. The APS website provides a list of non-exhaustive factors that can be taken into account by the Agency Heads when making the decision to suspend with or without pay. These factors include the seriousness of the alleged misconduct, the estimated duration of the misconduct action, and any likely financial hardship the employee will suffer.

If you have been suspended without pay despite your employer having the option to suspend you with pay, it may be worthwhile seeking legal advice as to whether you are entitled to be paid while suspended.

 

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