Employer Wins the Right to Suspend Worker

Mr Burns claimed that his suspension from Randwick Meat Company on 21 November 2014 was unjustified.

Randwick were proposing Mr Burns be suspended based on an on-going investigation into Mr Burn’s conduct in the workplace. The seriousness of the allegations related to concerns about how Mr Burns might be using his workplace time to gather intelligence about customers and pricing which was not related to the carrying out of his duties. The allegations also related to whether he was using his time in a manner inconsistent with his fundamental duty of fidelity to his employer. Randwick were concerned the employment relationship could not function effectively while the allegations were being investigated hence the proposed suspension.

While considering the suspension proposal, Mr Burns reported sick and the question of suspension was put on hold.

When Mr Burns was cleared to return to work, Randwick needed to make a decision about how to treat him. They offered special paid leave, which Mr Burns rejected. Randwick felt that their only remaining option was to suspend him. In a letter to Mr Burns, Randwick said “until the allegations are resolved, we consider that there is a significant risk that confidential and sensitive information may be uplifted from the business.”  The suspension would be on full pay and not considered punitive.

Mr Burn’s lawyer’s position was that the suspension would be unlawful because Mr Burns did not have a written employment agreement and therefore no term on suspension had been mutally agreed.

Employment Relations Authority member, Mr Stapp, said that Mr Burns decision not to take special paid leave was his decision and it was not the reason for the suspension.

Mr Stapp said Randwick was entitled to make a proposal to suspend Mr Burns given the allegations made against him. Mr Burns was given an opportunity to respond to the proposal. Mr Burns and his representative disputed throughout that any suspension would be unlawful, however they never sought to test it, but relied instead on their own understanding of the law.

Mr Stapp found that the one serious allegation was enough to meet the threshold to consider the suspension was justified for the on-going investigation.

Mr Stapp upheld the suspension as a justified action that a fair and reasonable employer could make. Mr Burn’s claim of unjustified disadvantage action was dismissed.