Managing workplaces where large numbers of employees need to interact, and where sometimes issues arise and things go wrong, is challenging for an employer.
In the case of Yvonne Lucas v Ashlor Trimming Service Pty Ltd, highly regarded Senior Deputy President of the Fair Work Commission Les Kaufman warned employers that even in the smallest of workplaces they must not take the easy way out by sacking the wrong person. Employers must follow the correct process when suspending one of their employees.
When faced with a conflict or issue, employers will often suspend one or two workers and tell them not to speak to anyone. This treatment feels as though the employees have been charged with a criminal offence where defendants are not to interfere with witnesses who may testify against them in a criminal trial. Just as retired judge Jennifer Coates told Premier Daniel Andrews that her inquiry did not stop him from answering questions about the breakdown in security in Victorian quarantine hotels, so too there is no rule of law which entitles employers to freeze out employees, not letting them speak to anyone.
It must be noted that employees are obliged to follow a direction not to speak to other employees where it is a reasonable lawful direction. However, that does necessarily justify the employer’s direction or conduct. These directions are often very distressing to employees, especially if they do not know what allegations might be made against them, and the suspension lasts for days or weeks. Such a direction does not demonstrate goodwill on the part of the employer in resolving the issues in dispute or under investigation.
Sometimes employees subject to a suspension may feel the need to resign to relieve their tension. If the employee resigns it is usually taken as a sign of guilt, rather than a sign they are unable to cope with the uncertainty created by their employer. When an employee resigns, they often burn their employment rights for all practical purposes. To argue constructive dismissal is a difficult row to hoe.
McDonald Murholme can often assist employees during the suspension period by providing legal advice, which is usually required at short notice.