Under the Public Service Act 2008 (the PS Act) employees can be suspended from the workplace in certain circumstances. These circumstances are:
- the proper and efficient management of a department might be prejudiced if a public service officer is not suspended (section 137)
- the decision maker reasonably believes a public service employee is liable for discipline (section 189).
The Chief Executive or delegated officer must consider all alternative duties prior to making the decision to suspend an employee, including whether an employee can be assigned alternative duties at an alternative work location or at their home.
Planning for how a matter will be progressed to conclusion is essential so that strategies are in place to manage a suspension.
Employee suspension process
A complaint is received, the alleged conduct or performance issue is identified, and initial information gathered. Whilst the matter is being worked through, will the employee:
- remain in role?
- be assigned to alternative duties or an alternative workplace?
- be suspended?
When making the decision on whether to suspend, agencies should consider:
- who is the appropriate decision maker.
- whether the decision maker has the correct delegation.
- whether the allegation or information gathered is reliable, relevant, and sufficient to make an informed decision on the appropriate course of action to be taken.
- the provision of the PS Act being relied upon to suspend the employee.
- the most appropriate person to keep in contact with the employee during their suspension.
- whether the suspension should be with pay or without pay.
A decision to suspend an employee with pay can occur under section 137 or section 189 of the PS Act. There is no requirement to seek a response from the employee before any decision to suspend the employee with pay, however the decision maker must provide in writing to the employee:
- when the suspension starts and ends – this must be a statement of the period of suspension by reference to either dates or in terms of its duration. Agencies must state an end date in their suspension notices or express the period of the suspension in terms of a specified number of weeks or months. Agencies must not either:
- state that the suspension will end by reference to events, such as “until this disciplinary process is finalised”, or
- include the words “unless otherwise determined” when stating the period of the suspension.
- the remuneration that will be paid to the employee for the duration of the suspension.
- the effect that alternative employment will have on the employee’s remuneration during the suspension.
Suspensions without pay should only be used in limited circumstances and where the decision to do so will withstand scrutiny. Suspensions without pay can only occur under section 189 of the PS Act and is subject to the principles of natural justice.
Suspension without pay should only be considered in situations where an agency cannot conclude a process in a timely way due to the existence of external factors beyond the agency’s control (for example, where delays are due to concurrent criminal proceedings), and it is not in the public interest for an employee to remain on suspension with pay.
The decision to suspend an officer from duty without pay will usually occur after an officer has already been on a period of suspension with pay. Factors that may lead to the consideration of suspension without pay may include a change or significant delay to expected timeframes for resolution, for example, criminal proceedings or the emergence of significant new factors relevant to the decision to suspend from duty which require consideration (for example, a licence required to perform duties has been revoked).
Factors to consider may include:
- the nature and seriousness of the allegation or allegations (noting that the allegation in the first place must be serious to justify a decision to suspend).
- whether the employee is subject to criminal charges or other external considerations not under the control of the agency that will delay the agency’s investigation and disciplinary process.
- whether any professional registration or licence that the employee is required to have to perform their duties has been suspended or cancelled for example, a Blue card.
- whether the employee would be unable to perform their normal duties even if not suspended.
- the financial impact of the employee of being suspended without pay, noting it is likely that every suspension without pay will have a financial impact and this needs to be weighed against other factors that support suspension without pay.
- whether the allegation or allegations would seriously diminish public confidence in the agency and/or the employee’s position would be seriously diminished if the employee was not suspended without pay (note, it is not necessary for the allegation to be public knowledge or for it to actually diminish public confidence).
- any submissions made by the employee when responding to the ‘show cause’.
The principles of natural justice apply when considering suspending an employee without pay. The employee must be given the opportunity to respond to the proposed suspension without pay prior to the decision being made by the delegate. This can occur through a ‘show cause’ process at the time of notification of the initial suspension on normal remuneration, or at any subsequent stage during the suspension.
Reviewing the decision regularly is important to ensure the decision to suspend (with or without pay) remains appropriate. A decision maker should consider if there is new information that may affect or change the previous decisions and document their decision making, including what was taken into account, when changing or affirming the decision.
When an employee is suspended, the final outcome at the conclusion of the suspension will be either:
- suspension is lifted and the employee returns to normal duties, or
- suspension is lifted and management or discipline action is taken, or
- suspension is lifted during or at the conclusion of a disciplinary process, or
- the employee separates by resignation or termination.
Record keeping is essential to document why a certain decision was made. An employee can challenge a decision to suspend them, and the decision maker may be required to give evidence about their reasons for deciding to suspend the employee.
Detailing the decision making process will also help to explain the decision and assist future decision making across the agency.
The following scenarios provide just some examples of the applicable suspension provisions where the risk has not been able to be managed through placing the employee on alternative duties or in an alternative workplace:
|Scenario||Section 137||Section 189 (paid)||Section 189 (unpaid)|
|Concerns exist surrounding the safety of the work environment whilst a matter is being worked through||✔|
|Concerns exist that evidence relevant to allegation against an employee may be tampered with||✔|
|A reasonable belief that an employee’s poor behaviour is due to a medical condition||✔|
|An investigation has commenced into serious allegations against the employee||✔|
|If proven, the conduct would lead to a serious disciplinary penalty being applied||✔|
|Serious allegations of misconduct including sexual harassment, fraud or assault||✔|
|Criminal charges have been laid against the employee and the discipline process is being held pending the outcome of the charges||✔|
|A serious discipline matter is prevented from being finalised for an extended period due to an external factor outside of the agency’s control||✔|