Protection orders used to dodge disciplinary action at work

Protection orders intended to protect victims of harassment are allegedly being abused by employees to escape disciplinary action and challenge managerial authority, raising concerns about the use of criminal law in workplace disputes.

Rod Harper, head of the employment law department at Gottschalk Attorneys Inc, says the practice could expose managers to criminal prosecution for carrying out their duties, while interfering with established labour procedures.

Employees use protection orders to escape disciplinary cases

“Employees who are being correctly disciplined by managers for misconduct and poor performance are starting to rely on the obtaining of protection orders as a defence,” Harper said.

“Hence criminal law enters the workplace arena.”

The Protection from Harassment Act was introduced to safeguard people against threatening and abusive conduct, but Harper said its provisions were being invoked in disputes that would ordinarily be addressed through internal grievance procedures.

Protection orders may restrict communication, physical proximity and contact between individuals. Depending on the conditions imposed by a magistrate, a manager could find it difficult to supervise an employee, issue instructions or participate in disciplinary proceedings without risking a breach of the order.

A violation can carry criminal consequences, including arrest, prosecution and potentially imprisonment.

Violation can carry criminal consequences

Harper questioned how managers were expected to fulfil their responsibilities under such circumstances.

He is handling a case involving this issue and said employees were contractually obliged to comply with reasonable instructions, while managers had corresponding responsibilities to enforce workplace rules.

“Reasonable managerial conduct, performance management and enforcement of workplace rules do not constitute harassment,” Harper said.

“Raising one’s voice does not constitute harassment.” Managers can oppose these applications and present evidence of the employment relationship to the court.

Harper also questioned whether magistrates were sufficiently equipped to distinguish between legitimate management practices and conduct warranting protection under the legislation.

Magistrates often have little knowledge of employment law in private sector

“Magistrates often have little knowledge of employment law in the private sector,” he said.

“This is a serious development and the omissions in the Harassment Act permit this to take place.”

Managers can receive unexpected visits from police serving court documents requiring them to appear before a magistrate.

Where the disputed interaction occurred privately between an employee and supervisor, the court could be left to determine whose account was more credible.

But the legislation applies to workplace harassment and employees experiencing genuine intimidation or abuse remain entitled to seek protection.

Review grievance policies employers

“On occasions the complaint can be valid,” Harper said, although the courts could also be approached over conduct arising from ordinary workplace responsibilities.

He recommended employers review grievance policies to discourage unnecessary protection order applications before internal remedies have been considered.

Employers should also ordinarily provide legal assistance to managers facing proceedings arising from the legitimate performance of their duties.

“Employees should use the Act for its intended purpose, failure to do so may constitute misconduct,” said Harper.

Legal proceedings for damages against an employee could also be a potential remedy. Protection orders are safeguards for victims of genuine harassment,” he said.