Resources: Blogs

Should I stay or should I go


Employee suspended without pay later terminated due to absence from work

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.

Employers can often find themselves in a difficult position when they are advised by an employee that they have been charged with a non-work related criminal offence and may be unable to attend for work.

In our previous blog, we suggested caution about acting too quickly in these situations and discussed the need for employers to consider the individual circumstances of employees and to seek legal advice before making any decisions about whether the employee should return to work or their continued future employment.

The legal system, however, can be a drawn out and lengthy process, and employers may be eager to act before criminal proceedings are finalised. In Lynch v Reward Supply Pty Ltd T/A Reward Hospitality [2018] FWC 969, the Fair Work Commission (FWC) reinstated an employee who was unfairly dismissed because of his absence from work pending the outcome of his criminal matter.

In May 2017, the employee was arrested on non-work related criminal charges and was held in custody until July 2017, when he was granted bail. When the employee was arrested, his partner notified the employer of his circumstances. The employer advised that the employee would be placed on leave without pay.

When the employee was granted bail, he advised the employer that he was ready to work and that he was going to defend the charges against him. The employer did not want the employee to return to work and suspended him without pay pending the outcome of the criminal charges.

However, in October 2017, the employer advised the employee that it was intending to terminate his employment because of his absence from work on unpaid leave for more than five months and asked him to ”show cause” as to why his employment should not be terminated. The employer did not receive any response and accordingly terminated the employment, effective 31 October 2017.

This “show cause” letter was sent to the employee by regular post and email. The employee argued he did not see the letter until November 2017 after the deadline and that the employer should have made contact with his partner when it did not hear from him.

The FWC held that the employee’s dismissal was harsh, unjustified and unreasonable. Commissioner Bissett held that the employee’s absence could not be a valid reason for dismissal – the employee was ready, willing and able to work and was only absent from work because the employer had suspended him without pay pending the outcome of the criminal proceedings. As there was no valid reason for the dismissal, it was held that the employee had not been notified of the reason for the dismissal.

Commissioner Bissett was also not satisfied that the employee had been given an opportunity to respond – as the letter was sent by regular post, the employee was not given enough time to respond. She commented that, at least, the letter should have been sent with some tracking and with priority.

The FWC made orders for the employee be reinstated to his position, dismissing the employer’s concerns that it needed to provide a safe workplace for employees. The FWC also noted that it was up to the employer whether to continue to suspend the employee without pay.

Lessons for employers

When employees are absent for an extended period of time due to non-work-related circumstances, it can create uncertainty for employers particularly in relation to staffing arrangements. However, where absences are approved, or are the result of a direction from the employer, such absence cannot be relied upon as a reason for termination of employment. In this case, while the employer did not terminate the employee because of his non-work criminal charges, it did not have a valid reason to terminate his employment because of his authorised absence from work.


Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

Failure to warn employee renders dismissal unfair

Template lesson

Many businesses, and in particular small businesses employers subscribe to human resources information systems which offer access to template letters and policies to provide a ready-made solution or to manage human resources administration.


Employer’s withdrawal of role constituted dismissal from employment

Late withdrawal

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.


Employee’s exaggerated complaints created psychosocial risk

False alarm

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.


First Intractable bargaining order made by the Full Bench

How did it end?

Enterprise agreement making under the Fair Work Act 2009 (Cth) requires bargaining representatives to bargain in good faith. Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), the Fair Work Commission was provided with new powers to arbitrate and issue a workplace determination to resolve intractable disputes about terms and conditions of proposed enterprise agreement in circumstances where there are no reasonable prospects of the parties reaching an agreement.


Federal Court finds employee was not demoted due to his exercise of workplace rights

The final decision

Employees are protected from adverse action because they have exercised, or propose to exercise, the workplace right to make a “complaint” or “inquiry” in relation to their employment within the meaning of section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth).


Employer successfully rebuts presumption in adverse action claim

Return to sender

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.


Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in workplace law and sports law.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.