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NSW Fit For Work Policy - Suspension Without Pay?

Discussion in 'Employment Law Forum' started by David Stephenson, 13 May 2016.

  1. David Stephenson

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    Hi,

    I have been impacted by my employer’s Fit For Work Policy. Being stood down without pay for 5 days, waiting on the results of a drug test (see below – Failed FFW Test Stand Down Notice).

    I would like help on this matter as under common law an employer cannot suspend an employee without pay. As well as loss of income I have also received a Written Waring –which means during the next 12 months “any” breach of company policy, procedure or standard may result in further disciplinary action being undertaken, up to and including “termination” of employment.

    I strongly feel the action of my employer is unjust. Considering my only error was forgetting to update my medication declaration. My medication declaration was on company records for about the last 18 months. I had just forgotten to update it (required monthly) and there is no option of declaring prior to the test once you have been selected to be tested.


    I would like to know if I have any legal right on this matter.




    Undeclared Medication

    You have returned a non-negative result for undeclared medication. You will be stood down without pay until the results of your non-negative test are returned to xxx. Your Supervisor, Superintendent, and Manger will be notified that you will not be attending work today. Your Superintendent will notify you of the laboratory results from your sample. If the results return as negative you will be able to return to work and will be paid for the time stood down. If the results are non-negative but are consistent with your stated medication you will return to work and receive a written warning.

    FFW Breaches – Undeclared medication will result in a First Written Warning for 12 months
     
  2. Serge Gorval

    Serge Gorval Well-Known Member

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    There is no implied right under law to suspend an employee without an express right provided by an industrial instrument or contract of employment.

    The company policy may or may not form part of your contract. If not, then there is no right to suspend particularly without pay. This raises a repudiation claim whereby you can affirm the breach or choose to terminate the agreement and claim damages.

    Keep us updated on this one.
     
  3. David Stephenson

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    Thanks for your reply Serge.

    My employment contract states “Your employment arrangement include the requirement that you comply with any company policies as announced or varied from time to time”

    So I guess this means the policy forms part of my contract.

    Since my suspension it seems the policy is being reviewed, as another employee also had a similar breach and it was left to the manager’s discretion to allow them to remain at work whilst the non- negative test result was sent away for confirmation.

    Although I feel the company has not acted appropriately, I don’t think it will be in my best interest to pursue the matter.

    Your comment on the policy forming part of my employment contract is interesting as I have been having some discussion with the company about the redundancy clause in my contract. The contract references a redundancy policy (which was used in 2008) but now the official line is that they have no redundancy policy, therefore, they are using the NES which is substantially less.

    I would be interested in your thoughts. (As there would be a number of employee’s affected with the change to using the NES for redundancy payments)

    Kind Regards,
     
  4. Serge Gorval

    Serge Gorval Well-Known Member

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    Hi David

    It seems that the employer is cherry picking when it comes to following policy, on one hand, they are happy to suspend you per policy but on the other hand, favourable redundancy packages are ignored...

    This issue surrounding policies has been a hot topic of late. if the policy does for part of your contract then the employer cannot unilaterally vary it as it sees fit.

    I'm afraid I cant comment further without reading the actual policies and contract.

    take a look at Nikolich v Goldman Sachs J B Were Services Pty Ltd
     

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