Employees argue suspension unjustified after 20 months on payroll
The Employment Relations Authority (ERA) recently dealt with an interim reinstatement application involving four government agency employees who were moved from paid to unpaid suspension after being charged with criminal offences related to a workplace incident from 2023.
The workers argued that their employer's decision to cease their pay was unjustified, particularly since three of them had already been cleared by an internal investigation and were in the process of returning to work when they were arrested.
They sought interim reinstatement to the payroll while their criminal trial proceeded and their substantive personal grievance claims were determined.
The case raised important questions about employer obligations when employees face criminal charges arising from workplace incidents, and the balance between operational needs and employee rights during lengthy proceedings.
Workplace incident and investigation outcomes
In May 2023, the four workers were involved in an incident at their government agency workplace that led to a comprehensive internal investigation.
The employer commenced its investigation in August 2023, with three workers suspended on pay from 14 August. The second worker had already been suspended on pay from 17 July 2023 in relation to another matter.
An external workplace investigator was commissioned in September 2023 to consider the workers' involvement in the incident.
Following the investigation report, the employer wrote to three of the workers on 1 and 3 May 2024 respectively, stating that "the HR process" was complete, their actions did not amount to misconduct or serious misconduct, and no further formal action was required.
The letters outlined a return-to-work process, and in the following weeks, these workers started the reintegration process.
The workers had been cleared by the internal investigation and were actively returning to their duties when circumstances changed dramatically.
Criminal charges and bail conditions
On 29 May 2024, all four workers were arrested and charged in relation to the May 2023 workplace incident.
Three of them were attending training as part of their reintegration process when arrested, while the fourth was at home.
The charges resulted in bail conditions that prevented the workers from working at the employer's facilities or contacting each other.
The employer continued to pay the workers after their arrest, though there was limited communication about their employment status.
In early December 2024, the workers advised their manager that their trial was scheduled to begin in March 2026. By this time, they had been on paid suspension for over 20 months since the original workplace investigation began.
The workers' bail conditions remained unchanged as of the investigation meeting, preventing them from performing their usual work duties.
Their trial was scheduled for March 2026, meaning a significant period would pass before their legal matters were resolved.
Proposal for unpaid suspension
On 19 March 2025, the employer wrote to each worker proposing to move them onto unpaid suspension.
The employer outlined several reasons, including that the employment matter could not be progressed until the police investigation and court trial were concluded, the trial was scheduled a year away, and the workers had been on paid suspension for 20 months.
The union replied that there was "confusion and misunderstanding" and that they did not agree with the approach, stating:
"The members need to continue to be paid while this is worked through." The union noted that the workers "were cleared to be back to work by your own arranged external law firm investigation" and expressed concern about the decision to consider ceasing pay for suspended staff.
The employer sought to hold meetings to discuss the proposal, but the union requested delays due to other business commitments, including collective bargaining.
The union asked to postpone meetings until the week of 26 May 2025 to allow time to speak with the workers and obtain legal advice, but the employer refused to accommodate this delay.
ERA findings on 'unjustified disadvantage' claim
The ERA found that the workers had an arguable case for unjustified disadvantage, noting that "suspension, and particularly suspension without pay, may amount to an unjustifiable disadvantage."
The Authority observed that three workers had been told on 1 May 2024 that the "HR process" had ended with no disciplinary action, making it "arguable the August suspension was exhausted by 1 May for at least three of the applicants."
The ERA found it was "arguable the respondent could not in March 2025 rely on the employment matter as it related to the incident and the accompanying suspensions being extant when these three applicants were arrested and charged."
This was "particularly acute given the respondent had investigated the incident and found no grounds to proceed with disciplinary action."
The ERA also found the consultation process was arguably unfair, stating that "the refusal to accommodate the delay was arguably unreasonable and unfairly denied them an opportunity to respond fully to the proposal, the outcome of which was potentially serious for them and their families."
ERA orders reinstatement to the payroll
In assessing the balance of convenience, the ERA found that while interim reinstatement would create "a financial and operational burden for the respondent," the employer accepted it could practically carry this burden.
The Authority noted that the workers would exhaust their annual leave by the end of October 2025 if not reinstated to the payroll.
The ERA concluded that "the balance of convenience favours the applicants" because "the preservation of the position of the applications, on the payroll, was the last settled position between the parties."
The Authority assessed the employer as "able to bear the burden of reinstating the applicants to the payroll until the substantive claim is heard."
The ERA determined that "overall justice favours reinstatement of the applicants to the payroll," noting the workers were "facing trial for their part in an incident which occurred during their work duties and for which they were cleared following a workplace investigation."
The Authority ordered immediate reinstatement to the payroll and directed the parties to mediation, acknowledging the employer's responsibilities as "a steward of public funds" while prioritising the workers' rights during the lengthy legal proceedings.
