Workplace Investigation Suspending employees

Workplace Investigation Suspending employees – Can you suspend and employee during a workplace investigation? The following should be considered by the employer:

* The seriousness of the alleged behaviours and/or conduct of the respondent
* The risk of the respondent interfering with the investigation process (E.G contacting witnesses) and/or continuing to victimise the complainant
* The risks to the business of having the respondent remain in the workplace during the investigation

In the case of Avenia v Railway & Transport Health Fund Ltd [2017] FCA 859, the court found that an employer was able to lawfully suspend an employee during the course of a workplace investigation, despite there being no express suspension clause in the written contract.

The FCA held that at common law an employer has a right to temporarily suspend an employee on full pay for as long as is necessary to undertake and conclude an investigation. This includes situations where the employer is reasonably determining the issues or examining the evidence relevant to the alleged misconduct. The case confirms a direction to suspend an employee on full pay will be reasonable in circumstances where it is taken to enquire into or investigate allegations of inappropriate behaviour.

If suspension is not the preferred option as an alternative and if practical, consideration could be given to introducing changed working arrangements and/or locations so as to minimise or remove the potential for contact between the complainant and the perpetrator during the investigation period.

It is important to note that any investigation conducted while an employee is suspended must be thorough, timely and professional to be considered as reasonable.

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