Being told you’ve been stood down while your employer investigates a complaint is destabilising. You’re still on the payroll but not at your desk, unsure whether you’ll return, what you can say, or how long the limbo will last. In this article, we’ll walk through what being stood down with pay pending an investigation means, when your employer can do it, whether you should be paid, what your entitlements are, and how to protect your position.
What being stood down with pay pending an investigation actually means
A stand-down is a period where your employer keeps you away from work. Two very different mechanisms go by that name, and it matters which one applies to you.
The first is the section 524 stand-down under the Fair Work Act 2009 (Cth). It applies when a stoppage of work your employer isn’t responsible for means they can’t usefully employ you, and they don’t have to pay you for it. Our section 524 guide covers it.
The second, and the situation this article is about, is a suspension pending investigation. Your employer directs you not to attend work while they investigate a complaint or an alleged incident. There is no specific section of the Fair Work Act that authorises this kind of suspension. It’s a discretionary decision your employer makes under your employment contract, subject to the general protections regime. You will usually be paid. That is best practice and the default position, but it is not guaranteed.
The two look similar from the outside. You’re not at work, and you’re waiting. But if your employer is investigating you rather than responding to a stoppage of work, you’re in the second category, paid or not.
When you’re told you’ve been stood down, the instinct is often to defend yourself immediately, over text, over email, in the car park with a colleague. That instinct can make things much worse before you understand what’s being alleged.
When your employer can stand you down pending investigation
Your employer can direct you not to attend work if two conditions are met.
First, the direction has to fall within your employment contract or a workplace policy that binds them. Most contracts and policies expressly reserve this right. If yours is silent, your employer can still usually direct you to stay away while they investigate, provided your pay and other benefits continue. This rests on their long-standing ability to give lawful and reasonable directions in the ordinary course of employment. Stopping your pay is a different question. That needs an express power: your contract, a modern award, an enterprise agreement, or a statutory scheme, as some public sector rules allow. If your pay has stopped, ask which of those your employer relies on.
Second, the direction has to be reasonable. That looks at the seriousness of what’s being investigated, whether your presence would compromise it, and whether there’s a real risk to safety, confidentiality, or the integrity of the process. A stand-down for serious misconduct or a safety risk is usually reasonable. One for a trivial matter, or one that drags on far longer than the investigation needs, is not.
If you believe your employer is using suspension as a pretext, for example to remove you after you raised a complaint, took parental leave, or exercised a workplace right, that may amount to adverse action under the Fair Work Act‘s general protections. Get advice before you respond in writing.
Your entitlements during the stand-down
If you’re on full pay, your usual entitlements continue. In practice this means:
- Your ordinary wages are paid on your usual pay cycle.
- Your superannuation continues to be paid on those wages.
- Your annual leave and personal (sick) leave continue to accrue.
- Continuous service for the purposes of long service leave and other length-of-service entitlements is unbroken.
- Any contractual benefits tied to your employment, including bonuses, allowances and insurances, continue unless the contract says otherwise.
If any of these are stopped or reduced, ask your employer to point to the clause, award or agreement term they’re relying on. If they can’t, it may be an underpayment. If they can, your entitlements shift: superannuation is paid on what you earn, so it stops with your wages, and whether leave keeps accruing depends on the instrument. Your continuous service isn’t broken either way.
What you can and can’t do during the stand-down
The hardest part is often not knowing what you’re allowed to do. Things you can do:
- You can seek legal advice. Nothing prevents you from talking to an employment lawyer, and usually you should.
- You can see a doctor or psychologist, and you can talk to your union if you’re a member.
- You can tell your family or a trusted support person that you’ve been stood down. Your employer cannot forbid that.
Things you generally cannot do:
- You cannot breach confidentiality obligations you have already agreed to. Your contract almost certainly contains confidentiality clauses, and your general duties continue while you’re suspended. The investigation itself is separate: there’s no automatic obligation to keep it confidential unless your employer directs you to, which they usually will. That direction is normally lawful and reasonable, so follow it. Don’t discuss the allegations with colleagues, share internal documents, or post about it on social media.
- You cannot access work systems for non-work purposes. If you’ve been told not to log in, don’t.
- You cannot approach witnesses. Even a well-meant message to a colleague asking “what did you hear?” can be characterised as trying to influence the investigation, and it usually makes things worse.
Can you look for another job? Nothing in the Fair Work Act stops you. But most contracts require you not to take on outside work that competes or conflicts with your employment. If you accept a role with a competitor while still employed, you may be in breach even before you start. Get advice before you sign anything.
If you’re unsure about what you’re allowed to say, do, or agree to during a paid stand-down, don’t guess. Call us on 1300 882 386 or email wehelp@jfmlaw.com.au for a preliminary view before you take a step that’s hard to undo.
Reasonable time frames and what to do if the investigation drags
There is no statutory time limit for a workplace investigation. But the reasonableness requirement means it cannot run indefinitely while you’re stood down, and if you’re not being paid, that limit is tighter. The Fair Work Commission has repeatedly criticised employers for delays, particularly where they clearly harmed the person under investigation.
As a rough guide, straightforward investigations should finish within a few weeks; complex ones may take one to three months. Beyond that, the delay should be justified by genuine complexity or witness availability, not employer inertia.
If your stand-down has run past a reasonable time, you have options:
- Ask, in writing, for a status update and an expected timeframe. Note the date you were stood down and today’s date. You can ask what’s been completed and what’s outstanding, though not to see witness statements.
- Raise concerns about the delay through your employer’s grievance process, if one exists.
- Seek legal advice if the delay is causing real harm to your health, your career, or your standing at work.
Common outcomes and how to protect your position
Investigations resolve in a handful of ways, each with different consequences:
- No findings, or findings in your favour. You return to work. Your employer should confirm the outcome in writing and say what, if anything, goes on your file.
- Findings of low-level conduct concerns. You may receive a warning or a formal follow-up. If you disagree, our guide to workplace investigations employee rights walks through the process.
- Findings that lead to a disciplinary meeting. You’ll be invited to respond to the findings and show cause why disciplinary action shouldn’t be taken. Our tips on attending disciplinary meetings are worth reading first.
- Findings that lead to termination. The stand-down ends because your employment ends. You may have grounds for an unfair dismissal or general protections application. Strict time limits apply: an unfair dismissal application must be lodged within 21 days of the dismissal taking effect.
Adam Elisha was dismissed after an investigation that departed from the disciplinary procedure written into his contract. In Elisha v Vision Australia Ltd [2024] HCA 50 the High Court awarded him damages for the psychiatric injury that flawed process caused. We wrote about what Elisha means for employees.
The takeaway: if the process feels irregular, keep a written record of what happens and when. It may matter later.
Practical steps you can take now
Whether it just started or has run for weeks, four things to do now:
- Ask for the stand-down direction in writing. It should say what is being investigated, the expected duration, whether you’ll be paid and under what authority if not, and any restrictions.
- Keep a dated log of every communication with your employer, including emails, calls and meetings.
- Save copies of your contract, position description, any applicable award or enterprise agreement, and relevant workplace policies to a personal device before your access is cut off.
- Get a preliminary legal view. A short conversation early can prevent decisions that are hard to reverse.
When to seek legal advice
The most valuable time to speak to a lawyer is early: before you respond in writing to allegations, before an investigation interview, and well before any decision is made. A short conversation early often saves cost and stress.
Contact us or make a booking online for a time that suits you, we provide a free 10-minute consult and give our preliminary view on your matter.
1300 882 386 or email wehelp@jfmlaw.com.au.
You’ll finish the call with a clear next step, no obligation.
