Australia: Criminal offences outside of work: Can an employee be suspended?

Can an employer indefinitely suspend an employee who has been charged with a serious criminal offence for conduct that occurred outside of work?

That is the question facing the St George Illawarra Dragons at the moment with widespread calls for Dragons player Jack de Belin to be suspended indefinitely until the serious sexual assault charges against him have been heard in court. It has been alleged that just before Christmas, de Belin left his pregnant wife at home and met a young woman at a Wollongong night club whilst out with his friend Callan Sinclair. They then went back to de Belin’s cousin’s apartment where it is alleged de Belin sexually assaulted the woman before inviting Sinclair to “come have a go”.

As one of those calling for de Belin to be stood down, Sydney Morning Herald columnist Peter Fitzsimons questioned “ In what other field in the public domain, would someone facing those charges turn up for work and take their place with the blessing of their employer?” In answer to his question, Fitzsimons then provided that an employee in this situation would be stood down and given a chance to clear their name and to fight the charges. But is that really case?

I would argue no, because in general the law does not allow an employer to indefinitely suspend an employee. For an employer to suspend an employee, they will need to have a legal right to do so. There is no general right at common law for an employer to suspend an employee without pay for misconduct, even if that misconduct would justify summary dismissal. The employer must take an “all or nothing” approach and either terminate the employee or treat the employment contract as continuing. Even suspending an employee with pay has its limits and prior to any adverse action being taken against them the employee is entitled to procedural fairness.

The contract of employment itself may contain an express term which allows an employee to be suspended. I have not seen de Belin’s contract and it is possible such a term exists. However, it is generally incredibly rare for such an express term to permit the employer (like the Dragons) to suspend the employee indefinitely for conduct that occurred outside of work. It is more likely such an express term would allow for suspension whilst an investigation is held into conduct in the workplace or have some sort of “reasonableness” test. Again, the employee would still be entitled to procedural fairness, such as an opportunity to respond, prior to any adverse action being taken against them.

Where there is no express right to suspend an employee, employers also have the implied contractual right to give “lawful and reasonable directions” to their employees. In Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159, it was held that an employer can give a lawful and reasonable direction to an employee to not attend work on full pay whilst they investigate a complaint or alleged misconduct. However, where an employer gives a direction to the employee to not attend work indefinitely, this is unreasonable and therefore a breach of contract. The court further noted that in situations where the employee is highly skilled (a professional rugby league player such as de Belin would likely be considered this) that “it is less likely that the terms of the contract of employment import a term that the employer can, indefinitely, require the employee not to perform work.”

There may be also be an express right to suspend an employee in a workplace policy and in some enterprise agreements and modern awards. Again, this is more likely to be in situations where an investigation is being conducted, rather than for conduct that has occurred outside of work. However, this is not always the case, and the NRL may wish to consider implementing a policy similar to the Australian Olympic Committee which provides that a member of the Australian Olympic Team must not at any time be convicted or charged with a serious offence involving violence, drugs or alcohol, any sex offence or an offence relating to child abuse. This was used in 2008 to suspend swimmer Nick D’Arcy from the Beijing Olympics after he was charged with assault.

Put simply, Fitzsimons is wrong. Barring an express right to do so, an employer, like the Dragons, would likely be in breach of their contract with an employee, such as de Belin, if they were to indefinitely suspend them whilst they fight criminal charges. The alleged conduct of de Belin, if true, is quite sickening, and he will have his day in court. But until that happens, or until the NRL changes their policy, rightly or wrongly de Belin will continue to be allowed to don the Red V for the Dragons this season.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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