Employer argues it was part of disciplinary process during investigation
The Fair Work Commission (FWC) recently dealt with an employee who claimed that his suspension from work amounted to a dismissal.
Olamide Otubaga joined Autism SA as a casual support worker in October 2020 and transitioned to a permanent part-time position in May 2022, with contracted hours of 36.75 per fortnight.
He reported to the program coordinator, who was responsible for creating work schedules. Generally, Otubaga's shifts were scheduled for weekdays, particularly on Wednesdays, Thursdays, and Fridays.
Autism SA offers support and related services for individuals on the autism spectrum and those who engage with or care for them. When a support worker is assigned to a client, it's typical to have two support workers on the same shift.
According to records, there were some prior disciplinary incidents. On 12 October 2021, Otubaga received formal counseling following a complaint from a colleague, which led to an investigation.
More recently, on 3 July 2023, he was issued a written warning following a complaint from a co-worker, also resulting in an investigation.
On 5 July 2023, the employer received another complaint from a colleague regarding Otubaga. An investigation was initiated, which included sending an allegations letter on 7 July, followed by a disciplinary meeting on 11 July.
The following day after the meeting, Otubaga was scheduled to provide support to a client, Client A. During that day, Client A's parents contacted the program coordinator to formally complain about Otubaga's behaviour.
They requested that he no longer be assigned to support Client A. The program coordinator then reported this complaint to her manager and the human resources department.
Both the manager and the HR believed that the complaint raised concerns that could potentially be considered as serious misconduct.
Consequently, they decided to suspend Otubaga with full pay while an investigation was carried out, in line with Autism SA's policy and procedure.
The employer prepared a suspension letter, and the management chose to inform Otubaga of his suspension once he had completed his work shift for the day.
Otubaga was briefly informed of the suspension in a phone call from on the late afternoon of 12 July. In accordance with their disciplinary procedures, his access to the employer's email system and the client's WhatsApp group chat features was revoked.
Otubaga would have worked on 13 July and 14, had he not been suspended. However, due to the suspension, he was removed from the scheduled shifts and consequently did not work.
The worker then filed an unfair dismissal claim, arguing he was fired on 12 July, with the dismissal taking effect on 13 July. He also said the employer’s decision was “predetermined.”
In its defence, the employer said that its decision to suspend Otubaga was not a dismissal.
It said that it did not bring the employment relationship to an end on that day or the day following, adding that it continued to pay Otubaga during the period of suspension and investigation.
During this period, it said that it communicated with Otubaga as its employee and held a meeting with him.
It said the "suspension and subsequent investigation were lawfully conducted in accordance with its established Disciplinary Management Policy and Procedure, which contemplated both suspension where potential issues of serious misconduct warranted investigation and payment of wages during an investigation period."
The Commission noted that the worker’s suspension was triggered by a client’s complaint against him, but it upheld the employer’s decision to conduct an investigation into the circumstances of the complaint.
It said that this was an expected outcome, adding that the “suspension was not a sham.”
“[The suspension] was a meaningful and deliberative process taken to permit an investigation into allegations of misconduct whilst managing the employer’s duty of care to its clients. It was a process expressly contemplated by the employer’s [procedures],” the Commission said.
The FWC also said that there was no termination since the worker “continued to be paid a salary for minimum contracted hours (this was not a payment in lieu of notice).”
“During this time, Autism SA investigated the complaints against Otubaga which had given rise to the suspension and then communicated with him by way of [an] allegations letter.”
As to the worker’s allegation that the dismissal was “predetermined,” the Commission said there was no evidence that there was predetermination, although it said the parties’ relationship “had become somewhat strained” due to the worker’s previous disciplinary warnings.
Furthermore, the FWC also commented on the worker’s absence from the roster. “It necessarily followed from the notice of suspension on 12 July 2023 that Otubaga would not be working the rostered shift on 13 July,” it said.
“The very nature of a suspension and its purpose meant that work as a support worker with clients would not be provided until the investigation was completed and the employer had decided on appropriate action,” it added.
Thus, the Commission said that the worker was not terminated at the employer’s initiative. His application was consequently dismissed.
