By The KW Lawyers Team
A paid suspension and being stood down involve an entirely different set of circumstances.
If you have been stood down with pay pending a workplace investigation, you are almost always entitled to your full ordinary pay throughout. Unless you are a casual or subject to a specific set of circumstances, your employer should keep paying you for the time you are kept away (Legal Aid NSW). A paid suspension, on the other hand, is not a stand-down under the Fair Work Act, and it is not yet a finding that you did anything wrong.
In this article, we will explain the core differences between a paid suspension and being stood down by your employer.
Suspensions and stand-downs: the fundamental difference
A stood-down-with-pay suspension is when your employer tells you not to attend work, usually on full pay, while it investigates a complaint or allegation about your conduct. During this period, you typically remain employed and keep your wage, while being kept out of the workplace. However, as we will explain below, certain workplace agreements and contracts can still allow an employer to withhold your pay.
These circumstances differ from a “stand-down”, even though the two phrases can be used interchangeably. As noted by the Fair Work Commission, “employers may be able to stand down employees” in two specific circumstances. These are “under an award, enterprise agreement or employment contract, or under the general Fair Work Act provisions” (Fair Work Commission).
A stand-down typically occurs when an employee can no longer be usefully employed because of something outside of their employer’s control, such as equipment breaking down, industrial action, or a stoppage of work (Fair Work Commission).
Is full pay the default while you are suspended pending investigation?
Unless you are a casual or subject to certain industry awards, conditions, or contract stipulations, your employer should still pay you for the time you are not at work.
In most cases, this is the default for an investigation. An unpaid stand-down provisions only reach situations where useful work has genuinely stopped for a reason beyond the employer’s control (Fair Work), and they only apply where your enterprise agreement or contract does not already deal with stand-downs (Fair Work Ombudsman). An allegation against you is not a stoppage of work, so the no-pay rule, in a majority of cases, does not apply.
That is why some courts and tribunals treat a paid suspension as the safe option. In one matter in Western Australia, an employee facing serious allegations was stood down on full pay pending the outcome of the investigation, under an enterprise agreement clause that said any such suspension “must be on full pay” (Industrial Magistrates Court of Western Australia).
When can an employer lawfully stop your pay or make it unpaid?
Suspension without pay is the exception, not the rule. Generally, an employer can only suspend you without pay if there is a clear legal or contractual basis to do so. Therefore, the practical question is whether one of those specific exceptions applies to your situation.
You can start by reviewing your own documents, or contact a work contract lawyer to get a second opinion. Some awards or enterprise agreements allow an employer to suspend an employee without pay in defined situations, so you should check the award or enterprise agreement that covers you.
The same principle can apply to your employment contract. Some contracts include express provisions dealing with suspension or pay during workplace investigations, while others do not. If your contract, award or enterprise agreement contains a clause about unpaid suspension, it is important to understand exactly when it applies.
How long can a paid suspension pending investigation reasonably last?
There is no fixed maximum number of days for a paid suspension pending investigation. In many cases, the suspension lasts for as long as the employer reasonably needs to investigate the allegations and make a decision.
What matters is whether the process is being conducted in a timely and genuine way. A suspension is generally intended to be temporary and connected to the investigation itself, rather than becoming an indefinite arrangement with no clear progress.
Courts and tribunals have recognised that suspension clauses are often tied to the period during which an investigation is actually underway. Once the investigation has concluded and a decision has been made, different rights and obligations may apply depending on the contract, enterprise agreement, or workplace policy involved.
If a suspension continues for an extended period with little communication, it may be reasonable to ask for an update, a likely timeframe, and confirmation of the next steps in the process.
Have you recently been suspended with pay? Not sure what to do next? Please read our recent article on what to do while you are suspended pending a workplace investigation.
Does being stood down with pay mean you are about to be dismissed?
Not necessarily. A paid suspension pending investigation is generally not the same thing as a finding that misconduct occurred.
Employers often use suspension as a temporary measure while they gather information, speak to witnesses, and assess what happened. The purpose may be to allow the investigation to proceed without disruption, rather than to signal that dismissal is inevitable.
Whether employment is ultimately terminated will usually depend on the outcome of the investigation and whether the employer follows a fair process. That process should ordinarily include giving the employee an opportunity to respond to the allegations and present their version of events.
Many investigations conclude without dismissal, while others may lead to different outcomes depending on the facts and the workplace rules that apply.
Can your employer force you to use annual leave instead of paying you?
Generally, no. A paid suspension is not a period of leave, and a direction to burn your own annual or personal leave instead of paying your ordinary wage is usually not permitted. Leave is something you take; suspension is something done to you.
As noted above, it is also important to distinguish a paid suspension from a genuine stand-down under the Fair Work Act. During a paid suspension pending investigation, employees will often remain employed and continue receiving their ordinary pay while they are directed not to attend work. Whether an employer can instead require an employee to use annual leave will depend on the employment contract, award, enterprise agreement, and the circumstances of the suspension.
Different considerations can apply during a lawful stand-down for a stoppage of work under the Fair Work Act. In those situations, employees and employers may agree to use accrued annual leave while the stand-down continues. That is a separate legal framework from a suspension pending a workplace investigation.
If you are directed to take annual leave while you are suspended pending an investigation, it is worth checking your contract, award or enterprise agreement to understand whether the direction is permitted in your particular circumstances.
What should you do from the day the suspension letter arrives?
If you are suspended pending a workplace investigation, try not to assume the outcome has already been decided. A suspension is often used to allow an employer to investigate allegations while keeping the workplace running smoothly. It is not, by itself, a finding that misconduct has occurred.
During the suspension, continue to cooperate with the investigation. This may include attending investigation meetings, answering questions, and providing your account of what happened. You should also make sure you understand the allegations being investigated so you have a fair opportunity to respond.
If you have concerns about the suspension, the investigation process, or your rights while you are away from work, it is worth seeking legal advice as early as possible. Getting advice before the investigation concludes can help you understand your options and ensure you are prepared for the next steps.
Whether a suspension ultimately leads to disciplinary action or a return to work will depend on the outcome of the investigation and the process your employer follows.
Need Legal Advice? Contact KW Lawyers for Reliable Employment Contract Services
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Prepared by KW Lawyers (Melbourne & Brisbane). This article is general information about Australian employment law, not legal advice, and does not create a lawyer–client relationship. For advice on your situation, speak with a qualified employment lawyer.