Australian workers are rather fortunate in many ways that there are vigorous laws in place to protect their rights. For instance, are you aware that there is no common law right to take disciplinary action against an employee by suspending, or standing down a worker without pay? Although, there are a number of scenarios where the right to suspend or stand down an employee is available, and you should always be aware of any situation that may allow an employer to undertake such actions.
Can an employee be suspended for misconduct?
Even if an employee has engaged in misconduct that warrants an action of instant dismissal, the employer does not have the right to suspend an employee under the common law. In a situation where the misconduct is serious enough for the employee to be dismissed, an employer must either dismiss the employee outright, or still retain their services with full contractual rights unimpaired.
In contrast, Crown employees can be suspended due to the Royal prerogative, but they still maintain a right to receive their salaries while being suspended.
When can an employee be lawfully suspended?
Employers can lawfully suspend an employee if there is a contractual, award, or statutory right available to carry out such actions against an employee. During the period of suspension, an employee does not have to perform any work, while an employer has no duty to pay any wages to an employee.
If there is a power vested in an employer to suspend an employee, the proper procedures for taking such action must still be exercised, or the suspension may be deemed as unlawful.
What remedies are available to an employee who has been unlawfully suspended?
Employees who have been unlawfully suspended have a number of remedies available to them and may include:
• termination of their contract due to a breach of either contract, statute or award
• a common law action to recover lost wages during the period of suspension
• damages for a breach of contract.
Can an employer lawfully stand down an employee?
Again, there is no common law right for an employer to stand down an employee – even during periods where there is no available work to be performed. In the event that there is no work for an employee to undertake, an employer must either give adequate notice, or they still must maintain the employee’s contract.
However, s 524(1) of the Fair Work Act (FWA) does allow a national system employer (a constitutional corporation or the Commonwealth) to stand down a national system employee under the following circumstances:
• industrial action not organised by an employer
• a breakdown of machinery or equipment when an employer cannot be reasonably held responsible for the breakdown
• work stoppage in which an employer cannot be reasonably held responsible.
Although, it’s vital to note that an employer cannot stand down an employee during a period of authorised leave.
What remedies are available for unlawful stand down?
If an employer stands down an employee unlawfully, the employee may apply for arbitration to Fair Work Australia. Furthermore, an employee can also take action for breach of contract or enterprise agreement as alternative remedies.
If you feel that you have any issue or concerns against your employer, always seek the proper legal advice.