A Tale of Two Suspensions: The Costly Mistake and the Textbook Success
- maryline627
- Jul 17
- 4 min read
This week alone, I handled two cases that perfectly illustrate the absolute extremes of suspension under New Zealand employment law. They are live examples of how a single operational decision can either set a company up for a defeat or protect the workplace relationship entirely.
The contrast between them highlights exactly why both employers and employees need to know the rules of engagement. At the end of the day, whether I am representing a worker or a business, everybody wants what is fair, without it costing a fortune in legal fees or dragging on for months.
Here is what went down in my office this week.
Case 1: The Textbook "What NOT to Do"
The first case I took on this week was a textbook masterclass in how to guarantee an expensive loss at the Employment Relations Authority (ERA).
An employer grew concerned about an issue and reacted completely on impulse. There was no justifiable operational reason to remove the employee from the workplace. Yet, without warning, management locked him out of all IT systems, confiscated his laptop and phone, and physically escorted him off the premises in front of his colleagues. To top it off, they tried to bypass the law by telling him he was just being put on "special leave."
This is a classic de facto suspension executed with zero due process. Because the heavy handed execution effectively made it impossible for him to do his job or return to work, it amounts to a textbook win at the ERA—not just for unjustified suspension, but potentially for a dismissal as well.
Case 2: The Textbook "Perfect Execution"
The second case I handled this week was the exact opposite. The employer did everything beautifully.
Instead of reacting aggressively, they formally proposed to place the employee on paid special leave. They clearly explained the reasons behind the proposal, explicitly stating they wanted to give him the time and space away from the workplace to consider the allegations and seek legal representation if he wished. Crucially, they gave him a genuine opportunity to attend a meeting and provide feedback on the proposal before any decision was made.
Because the process was collaborative and non aggressive, the employment relationship remained intact. This approach is vital: if the underlying allegations end up not being upheld, you want the employee to be able to return to work feeling like they were treated fairly, rather than feeling like they were targeted or are being pushed out.
What is a Suspension Generally Used For?
A suspension is not a punishment or a disciplinary pre-determination; it is a temporary holding pattern. It is generally used to protect the integrity of an investigation or to manage an immediate risk.
How this looks varies wildly depending on the industry:
Teaching / Education: If a safety complaint is made against a teacher involving a student, the school may propose a suspension. The primary driver here is safeguarding obligations to vulnerable individuals while the facts are verified.
Construction: If a worker is suspected of being under the influence on site, an employer might stand them down immediately. The driver here is managing critical health and safety risks on a high hazard site.
Corporate / Office Environment: In an office, physical safety is rarely the issue. Instead, suspension is usually proposed to prevent witness interference or evidence tampering; such as an employee altering digital files or ledgers during an active IT or financial fraud investigation.
The Employer’s Perspective: Don't Fall into the Traps
If you are an employer, Case 1 proves that rushing to stand someone down is a legal minefield.
Look for Alternatives First
Before suspending, you must actively consider if the risks can be managed with a lighter touch. Could they work from home? Could you restrict their access to specific software, or reassign them to a different project temporarily? If a viable alternative exists and you ignore it, the suspension is highly likely to be deemed unlawful.
The Consultation
You cannot simply hand an employee a letter that says "You are suspended." You must propose it, provide the reasons why you think it's necessary, and genuinely ask for their feedback before deciding.
The "Special Leave" Mask
Do not try to disguise a forced stand down as "special leave" to circumvent consultation. If the employee does not volunteer for that leave, and you are barring them from work, the law looks at the reality of the situation. If the criteria don't fit, it is a de facto suspension, and the ERA will penalise you for it.
The Employee’s Perspective: Knowing Your Strategy
If you are an employee facing this situation, knowing what the employer is legally obligated to do is important.
You Have the Right to Challenge It
When a suspension is proposed, you are legally entitled to submit feedback. You can challenge their reasoning directly. For example, if they claim you will interfere with office witnesses, you can offer to work remotely from home with restricted email access, removing the risk without the heavy stigma of a formal suspension.
Requesting Special Leave Strategically
However, sometimes being away from the workplace is actually in your best interest. Facing heavy allegations is incredibly stressful, and trying to work while preparing for a disciplinary meeting can be overwhelming.
In this scenario, a smart strategic move is to request that the time away be mutually re characterised as Paid Special Leave.
Why is this important?
It controls the narrative: A formal suspension carries a heavy professional stigma among your peers. Paid special leave reads as a neutral, mutual administrative agreement.
It buys you breathing room: It gives you the psychological space you need to gather your thoughts, get legal counsel, and build your defence in a low stress environment.
Finding the Fair Path Forward
Employment disputes are inherently emotional, but dragging them out through the ERA wastes time, destroys workplace culture, and burns through thousands of dollars in legal fees. Whether you are proposing a stand-down or responding to one, prioritising genuine communication and procedural fairness is the only way to find a pragmatic, cost effective resolution.
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