Do employers have the power to suspend employees from the workplace?
Published in: July 2016
It’s not uncommon for managers and employees to have disagreements on the odd occasion, but with that being said, most issues will be resolved in a civil manner and the usual workaday business will continue. Conversely, there may be circumstances in which a matter cannot be easily resolved, requiring the manager to either suspend the employee, or in more serious circumstances, suspend the contract of employment. Obviously, the question that needs to be answered is: Can employers suspend an employee, or contract of employment as a remedy?
Can an employee be lawfully suspended?
It should be noted first off that there exists no common law right to suspend an employee without pay for misconduct – even in instances where the behaviour would result in immediate dismissal under ordinary circumstances. However, an action of suspension may be included within the contact, award or statute.
If a contract, award or statute makes an allowance for an action of suspension, during the period of suspension, there is no duty to perform any work by an employee, and alternatively, there is no duty for an employer to pay wages. In Reid v Australian Institute of Marine and Power Engineers (1990) 33 IR 463, Pincus J referred to the comments of Lord Sterndale in Hanley v Pease and Partners Limited  1 KB 698 where is Lordship said:
“[I]f there is a power of suspension which is exercised, the whole contract is suspended, the obligations on both sides are suspended. It seems to me that is the inevitable meaning of suspension… The contract is suspended with regard to its performance by both sides, not only by one…”
If a contract, award or statute allows for suspension of an employee as a remedy, an employer must act reasonably during the period of suspension. Furthermore, although a suspended employee may not be required to fulfil their contractual duties, the existence of certain rights may still be in force, such as the right for an employer to dismiss an employee, or the right of an employee to resign.
What options are available to employees who have been unlawfully suspended from the workplace?
In instances where an action of suspension is not available to an employer through contract, award or statute, yet the employer still undertakes such an action against the employee, the action may be considered as a breach of contract and the employee may have the option of terminating the agreement.
An action of suspension that breaches an applicable award may provide the employee an opportunity to seek a remedy through the courts to recover any wages lost during the period of suspension. Additionally, damages for breach of contract may also be a remedy under certain circumstances.
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