When you suspend an employee, he or she is temporarily removed from the workplace and prevented from undertaking further duties. Basically it is a disciplinary measure. The suspension of an employee is usually utilised as a last resort, in circumstances where employers finds themselves at their wits’ end and can no longer stand idly by and watch an employee engaging in misconduct and or unsafe work practices. The series of occasions under which an employee has been suspended are too numerous to mention. However, a suspension has been found to be a permissible course of action when an employee engages in; fraud, theft, the contravention of occupational health and safety policies or intimidation tactics against their fellow colleagues.

Lawful suspension vs unlawful suspension

It is important to recognise that there are two types of suspension; lawful and unlawful.

A lawful suspension occurs when an employer is given an express right under a contract, statute or award to suspend an employee in specific circumstances. In such a case, the terms of the document will need to be carefully scrutinised to ascertain the precise nature and extent of the power, as well as any prerequisites that may need to be satisfied.

An unlawful suspension is one that comes about as a result of an improperly exercised right of suspension or in circumstances where the employer has no authorisation to suspend. This will be the case even if the employer acted defensively to a threatened campaign of disruption or where the employee has refused to perform their duties.

Suspending an employee for conduct that warrants a dismissal

Employers must be vigilant and practical when exercising any rights of suspension that they may have. If an employee engages in conduct that warrants a dismissal (as distinct from a suspension), the employer cannot lawfully suspend the employee. In such circumstances, the employer can choose to either terminate the engagement or keep it on foot and pursue a claim of damages against the worker. The employer cannot, however, suspend the employee and deny them the ability to earn wages as a disciplinary measure.

Effect of a lawful suspension

Where an employee has been validly suspended under an express power, during the period of suspension, the employee:

  • has no right to work;
  • is not entitled to be paid;
  • continues to be bound by their terms of engagement (including any non-competition, non-solicitation and privacy clauses); and
  • is liable to be dismissed.

Effect of an unlawful suspension and available remedies

Where an employee has been unlawfully suspended, the employer may be liable to pay the employee’s wages and other benefits during the period of suspension. Furthermore, an unlawful suspension may amount to a breach of contract or award and thus an employee may have recourse against the delinquent employer. In particular, an employee may seek:

  • damages for breach of contract;
  • injunctive relief; or
  • declaratory relief.

Conclusion

Would you like to know more about the employer’s right of suspension or your rights and responsibilities under the same. Our experienced team of LegalVision lawyers would be happy to help you with any queries that you may have.

Vanja Simic

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