As an employer, you may face situations where employees are difficult to manage. In serious circumstances, you might encounter an employee who steals from the business or is intimidating and threatening your other staff. If you believe that an employee might have engaged in serious misconduct, you may not want them in the office while you investigate the matter. This article will explain what to do if you find yourself in a situation where you need to suspend an employee. 

Suspension vs Termination

If you suspend an employee, they will need to leave the workplace temporarily and cannot undertake further duties during this time. But, their employment contract will still be in force. In comparison, if you terminate an employee, their contract with you will be completely over.

If you have proof of an employee committing gross misconduct in the workplace, you may want to terminate them on the spot. Gross misconduct might include:

  • theft;
  • fraud;
  • seriously breaching occupational health and safety procedures;
  • seriously breaching internal policies; and 
  • intimidating or threatening other staff.

However, before terminating an employee, you will need to check that you have legal grounds to do so. If you do not, you may end up facing an unfair dismissal claim from Fair Work

If someone has made allegations of serious misconduct against an employee, but you do not have enough proof to terminate them, you can suspend them instead. During the suspension, you can conduct a formal workplace investigation without the employee’s interference. 

Suspension With or Without Pay?

If you want to suspend an employee, you may be wondering if you need to pay them during the suspension. While there are some situations where you can suspend an employee without pay, many employers do not want to risk doing so. 

Suspending an employee without pay when they are entitled to receiving payment can have consequences. You risk having to repay the employees wages, as well as additional compensation for breaching their contract or modern award.

Therefore, if you are going to suspend your employee for a short period of time, it may be safer to place them on paid leave.

How Can I Suspend an Employee?

If you need to suspend an employee, you must first check their: 

By looking over these documents, you will better be able to understand:

  • whether you can suspend the employee;
  • whether you need to pay them during the suspension;
  • how to properly notify the employee of their suspension; and 
  • the relevant internal documentation to keep to evidence the suspension. 

By following this information and documenting every step of the suspension process, you will ensure that you have legally gone about the process.

What Do I Do During the Suspension?

If you have suspended an employee, you need to ensure that you follow the correct legal process while investigating the claims of their misconduct. Make sure to follow the investigation procedures which are outlined in your internal policies and document each step.

It may be advantageous to hire an external investigator if the allegation:

  • is serious;
  • concerns a senior employee; or 
  • concerns situations unfamiliar to your HR department.

An external investigator will reduce bias (or the appearance of bias) and will make sure that they follow a legally correct procedure. 

Once you have concluded an investigation, an investigation report will determine whether further disciplinary action against the suspended employee is necessary. The report should also include recommendations to prevent the same conduct arising in the future.

Key Takeaways

Where an allegation of serious misconduct has arisen against an employee, you may wish to remove that employee from the workplace while you investigate the claims. You will likely need to pay the employee while they are on suspension, to lower the risk of breaching your employment contract. While the employee is suspended, conduct a thorough investigation to understand what to do next. If you have any questions about suspending employees and conducting workplace investigations, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Blythe Dingwall

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