By Charles Power

You do not have a right to suspend an employee without pay unless provision is made for this right in legislation, the employment contract, or an applicable award or enterprise agreement.

This rule applies even if an employee has engaged in misconduct which would justify summary or immediate dismissal.

If you unlawfully suspend an employee without pay, the employee may assert that you have repudiated the employment contract, i.e. displayed an intention not to be bound by the contract, or to fulfil it only in a manner substantially inconsistent with its contractual obligations.

If the employee accepts that repudiation and communicates that acceptance to you, the employment contract and the employment relationship will come to an immediate end.

In that case, if the employee is covered by the Fair Work Act 2009 (Cth) unfair dismissal laws, he or she will be able to claim you dismissed them. That is because the termination of their employment was at the employer’s initiative.

The applicant in Devi v Doutta Galla Aged Services Limited (2018) made such a claim. The employee was on a student visa and studying nursing. A condition of the visa was that the employee does not work more than 40 hours a fortnight. This was reflected in the employee’s employment contract.

After an investigation, her employer concluded the employee had breached her student visa conditions by working in excess of 40 hours a fortnight.

The employer then concluded the employee’s ongoing right to work under her current visa was invalid, and until such time as it received confirmation in writing from the Department of Immigration and Border Protection that the employee could continue to work, she could work her contracted hours, but should not be paid.

She was also required to ‘self-report’ the breach of the working conditions of the student visa to the Department.

The employee treated the employee’s unlawful suspension as a repudiation of the employment contract. She accepted the repudiation and made an unfair dismissal claim.

The Fair Work Commission (FWC) ruled the employee’s conduct would not have been sufficiently serious to provide a valid reason for dismissal.

This would only have been the case if the employee had been found by the Department to have breached her visa conditions. There was a question as to whether the hours’ limitation applied to all the hours worked by the employee when her university course was out of session.

The FWC observed that the employer will contravene the Migration Act if it allows an employee to work in breach of his or her visa condition.

However, the fact an employee performs work outside of the contracted hours without the employer’s knowledge or consent, in breach of the employee’s visa condition is unlikely to expose the employer to liability, particularly if the employer took reasonable steps at reasonable times to verify the employee was not in breach of the work-related condition solely because of doing the work.

In this case, the FWC ruled that the employee had the right to work in Australia. She held a valid visa with a working hours’ restriction as a condition and had provided proof of a valid visa to the employer prior to commencing employment.

There is no evidence that the Department or the Minister has determined that the employee had worked in breach of her visa condition, or lost the right to work in Australia.

The employer had wrongfully formed a view as to the consequences of the additional hours it says the employee worked; she had become an ‘illegal worker’.

In fact, there was no legal impediment to or consequence for, the employer permitting the employee to work the hours for which she and it had contracted.

The FWC ruled the employer was wrong to believe that a breach of visa condition automatically affected the validity of the visa. Moreover, it was unreasonable to require the employee to ‘dob herself in’ to the Department.

The contract expressly provided that it would ‘automatically’ terminate if there is any change to the employee’s visa status, immigration status or right to work in Australia. However there was no evidence of any change to the employee’s visa status or immigration status, and the employee retained the right to work in Australia pursuant to a valid and operative student visa.