Being told not to come to work is unsettling, especially if you do not know why or for how long. Two very different things are often confused:
- Suspension: your employer tells you to stay away from work, usually while it investigates allegations about you. It is a step in a disciplinary process.
- Stand down: your employer stops you working, usually without pay, because there is no useful work for you to do for reasons outside the employer's control, such as a breakdown or a stoppage. It is not about anything you have done.
Deadline: If a suspension ends in dismissal, you have 21 days from the day the dismissal takes effect to lodge an unfair dismissal or general protections claim. Keep a record of every date.
Suspension During an Investigation
Employers often suspend an employee while they investigate serious allegations, for example to protect witnesses, preserve evidence or keep people apart. A suspension is not a finding that you did anything wrong, and it should not be treated as a punishment.
Pay. Suspensions pending an investigation are commonly on full pay. Whether an employer can suspend you without pay depends on what your contract, award or enterprise agreement says. If nothing gives your employer that right, stopping your pay may be unlawful, and the unpaid wages may be recoverable. The law in this area is not fully settled, so get advice if your pay has been stopped.
Length. A suspension should last only as long as reasonably needed. A suspension that drags on for months without progress, or without you being told the allegations, can itself become part of the unfairness if you are later dismissed.
Adverse action. In some circumstances, a suspension can be adverse action under the general protections. If you were suspended because you made a complaint, raised a safety issue, took leave, or because of a protected attribute, you may have a general protections claim even though you have not been dismissed.
What to Do If You Are Suspended
- Ask for it in writing. Ask your employer to confirm the reason for the suspension, the allegations, whether you will be paid, how long it is expected to last, and what you can and cannot do.
- Follow reasonable directions. You are still employed. If you are told not to contact colleagues or access systems while the investigation runs, comply, and ask if you are unsure what is allowed.
- Do not contact witnesses or the complainant about the allegations, even to "clear the air". It can be treated as interfering with the investigation.
- Keep records. Note the date and what you were told, and keep copies of all correspondence.
- Stay available. You may be asked to attend an interview. You can ask to bring a support person to meetings about possible dismissal.
- Look after yourself. See your GP if you need to, and use your employer's employee assistance program if it has one.
- Do not resign in haste. Resigning ends your ability to bring most dismissal claims. See resigning or being forced to resign.
- Get advice early, especially before any interview or written response. See our page on show cause letters.
Stand Downs Under the Fair Work Act
A stand down is different. Under s 524 of the Fair Work Act 2009 (Cth), an employer can stand an employee down without pay for a period when the employee cannot usefully be employed because of:
- industrial action, other than industrial action organised or taken by the employer;
- a breakdown of machinery or equipment, if the employer cannot reasonably be held responsible for it; or
- a stoppage of work for any cause for which the employer cannot reasonably be held responsible.
The Act's stand down rules do not apply if your enterprise agreement or contract has its own stand down provisions for that situation; those apply instead. As the Fair Work Ombudsman puts it, employers “can't stand an employee down just because the business is quiet or there isn't enough work”. See the Ombudsman's page on stand downs.
If there is a dispute about a stand down, you (or your union, or a Fair Work inspector) can apply to the Fair Work Commission to deal with it.
If your employer has simply stopped giving you shifts or pay without a lawful stand down, that may be an underpayment, a change to your position that amounts to adverse action, or, in some cases, a dismissal. Get advice promptly, because if it is a dismissal, the 21 days are already running.
WA State System and Public Sector
If you work in the WA state system, different rules apply. In particular, WA public sector employees can be suspended under the disciplinary provisions of the Public Sector Management Act 1994 (WA) and related instruments. See our pages on public sector employees and the WA state system.
How We Can Help
We can review your situation, tell you whether your suspension or stand down is lawful, help you ask the right questions in writing, recover pay that should not have been withheld, and prepare you for any interview or show cause process. Contact us for a free discussion.