A restraint order is a court order that allows an applicant to restrain the actions of another person. It prevents or places restrictions on the other person having face-to-face or verbal contact with the applicant.
What happens when this impacts the workplace?
It is a civil order, described in ways that include Apprehended Violence Order (AVO), Personal Intervention Order, and Restraining Order. Legislation in each state governs the issue of such orders, so the types and conditions of orders vary from state to state.
However, there are two general categories:
- Domestic – where there is a personal relationship between the parties, such as spouse, partner, boy/girlfriend, parent, children, other relatives.
- Personal order – where the parties are not personally related, such as neighbours and work colleagues.
How restraint orders can affect a workplace
Most orders relate to disputes that arise outside the workplace. However, the fact that they are intended to restrict or prevent communication or other interaction between two or more people means that some can affect the workplace as well. For example:
- Where two employees had a relationship that ends acrimoniously, and one obtains an order against the other. The order is likely to prevent them from working in the same work location.
- Where workplace bullying occurs that is highly threatening and “physical” in nature. If the restrained employee is a manager, the order may prevent him/her from physically attending the workplace and from communicating with one or more employees.
Another scenario is a domestic order when two relatives both work at the same workplace. If there are other family members or relatives who also work there, the situation may cause problems for them as well, even though they are not parties to the order.
Courts base their decisions on protecting the safety of the applicant for the order and rarely take into account any practical implications for an affected employer.
Requirements to obtain a restraint order
The criteria courts use to decide whether to issue restraint orders vary from state to state. The main test is either whether an applicant has genuine fears about the conduct of the other person, and/or whether the other person’s conduct is both threatening and likely to continue.
In each case, the applicant must meet only the “balance of probabilities” standard of proof. In New South Wales, this covers “intimidation” of the applicant and in Victoria, it includes “demeaning or derogatory comments”.
The above requirements may create the potential for some employees to attempt to use a restraint order (or the threat of one) to strengthen their bargaining position against their employer or an individual employee (eg the immediate manager). In some occupations, eg police or security, a restraint order could prevent an employee from working in the same industry at all.
What should you do?
What should an employer do if a restraint order is issued against an employee that restricts/prevents contact with one or more other employees?
Workplace health and safety legislation imposes a statutory duty to protect the safety and health of all employees and other people who attend the workplace. This will require taking steps to comply with the terms of the order by restricting or preventing contact between the parties.
Options may include:
- physically separating the employees by transferring one to another work location
- arranging for the restrained employee to work away from the usual workplace, eg working from home or otherwise remotely
- if possible, preventing email and telephone contact between the parties
- warning the restrained employee to comply with the order at the workplace, stating clearly that any breach of the order will result in action taken against him/her that may include dismissal (see below)
- making the managers of both employees aware of the order, and instructing them to take steps to ensure that it is enforced at the workplace.
Can you dismiss an employee subject to a restraint order?
The Fair Work Act 2009 (sec 387) states that an employer must have a valid reason for dismissing an employee relating to capacity or conduct, “including its effect on the safety and welfare of other employees”. It is arguable that a restraint order comes within the scope of that.
Depending on the individual circumstances of each case, it is also arguable that an employee’s inability to be physically present at the workplace would make it impossible for them to continue to perform the job and thus also provide a valid reason related to the capacity to work.
If an employee breaches the terms of a restraint order while in the course of employment, this will also amount to a valid reason for dismissal.
However, even if there is a valid reason, dismissal must still occur in a procedurally fair manner, otherwise, it could be held to be harsh, unjust or unreasonable, or not consistent with the Small Business Fair Dismissal Code, even if valid. It is therefore recommended to seriously evaluate alternative methods of arranging work (eg working from home, lateral job transfers, relocation) before deciding to dismiss.
The terms of a restraint order usually require immediate removal of the employee from the existing workplace. This may justify summary dismissal, but providing pay in lieu of notice of termination is a “safer” option. Also, consider suspending an employee on full pay to keep them away from the workplace until you make a final decision on what to do. Note that the affected employee can challenge a restraint order.
The employee’s past history, eg length of service and previous record of conduct, and also their current personal circumstances (eg age, prospects of finding other work, responsibility for dependants, etc) are also taken into account by courts and tribunals when deciding whether a dismissal was implemented unfairly, so consider these factors as well when deciding the terms on which the employee is dismissed.
