Ten in the bin: Injunctions against suspensions from work

A suspension is a reasonable and lawful direction from an employer where, for the period of suspension, an employee will not be required to perform their duties in the usual manner they would normally be performed.

There are certain circumstances where employees may be suspended from work with pay, such as when an investigation is being conducted or in the context of a disciplinary process.

Ordinarily, the power to suspend an employee is a contractual term, but some awards or enterprise agreements may also set out the circumstances in which an employee can be stood down from work with pay.

However, the circumstances in which an employer can or should suspend an employee has proved controversial. For instance, in Milam v University of Melbourne [2019] FCA 171, a Professor at the University of Melbourne (the University) sought an injunction in the Federal Court of Australia to restrain the University from suspending her from her employment under the terms of its enterprise agreement.

In this matter, the University suspended the Professor pending a further investigation into preliminary allegations of misconduct, which had arisen after a preliminary inquiry into the University’s Faculty of Arts. The Professor was suspended from her duties as Head of the School and was only permitted to attend the University to carry out her teaching duties.

The Court was satisfied that there were grounds and factors in favour of granting the injunction – there was low risk that the Professor’s return to work would impact other employees, and there would be risk of harm to the Professor if the suspension continued. It was accepted that the ongoing suspension would impede or prevent the Professor from carrying out her work in leading a bid to secure grants to establish a Centre of Excellence at the University. Significantly, the Court was also of the view that the ongoing suspension would cause the Professor to suffer significant harm to her reputation.

Very recently, this issue of suspension has also been the subject of a dispute between the Australian Rugby League Commission (ARLC) and a player.

Following a summer of off-field transgressions, the National Rugby League (NRL) and the ARLC determined that it was appropriate to introduce a new “no-fault stand down” policy where players who are charged with serious indictable offences will be stood down with pay while their criminal matter proceeds through the courts.  While sidelined, players will only be permitted to train with their team.

A player who was stood down under this policy initially applied to the court for a temporary injunction against the new policy so that he could play in the upcoming NRL season. This application has now been withdrawn but the player will continue to challenge whether the “no-fault stand down” policy is valid.

In the sporting context, the discussion about the new policy raised concerns that the automatic suspension would unfairly deprive players of work and may diminish their ability to exercise their skills by:

  • restraining players from playing in matches;
  • reducing their access to opportunities of earning additional income;
  • preventing them from being selected for representative teams; and
  • not least of all, impacting on their ability to maintain their level of fitness and skill.

In addition, players may also lose the opportunity to play competitively in circumstances where, in protracted criminal matters, they are required to sit on the sidelines for an extended period of time.

It will be interesting to see how the courts consider the NRL’s “no-fault stand down” policy, particularly where an employer’s power to suspend an employee will depend on a range of factors.

For employers, there is a need to take particular care when suspending an employee from work. Employers need to consider whether it is reasonable in the circumstances to suspend an employee from work and if there are any policies which may apply.

 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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