Apprehended violence orders, personal intervention orders, restraining orders … whatever the label, each state has legislation in place to allow a party to obtain an order to restrain the actions of another person. These are civil orders made by a court, restricting a person’s behaviour. For simplicity I will use the term restraining order to describe court orders of this general nature.
There are two types of restraining order: domestic and personal. A domestic order is relevant if there is a domestic relationship between the parties, such as husband and wife, boyfriend and girlfriend, or parent and child. A personal order covers everyone else, neighbours, parents of warring children, ex friends and … co-workers.
Queensland is the only jurisdiction in Australia that does not have legislation in place to grant a person an order if harassed by an individual who is not domestically related in some way.
Impact on the workplace
Restraining orders are not very prevalent in Australian workplaces, but given their infiltration into just about every other part of our societal lives, it is only a matter of time before they have an impact on the workplace to a much greater degree.
For example, imagine two employees of your company commencing a relationship. Six months later, things have gone pear-shaped and one wants out. The other refuses to end the relationship, allegations of threats are made, and suddenly there is a restraining order in place restricting one of the couple attending the other’s workplace. You have lost an employee potentially integral to your organisation’s operations.
As another example, let’s say your CEO is rather autocratic and belligerent in their manner in addressing employees. The CEO has been known to swear at employees, make general threats and get right up in a person’s face when chastising them. Apart from such behaviour being a clear example of workplace bullying, it could also form grounds for the making of a restraining order. If an order is made, the court may impose restrictions on the CEO that effectively stop him doing his job. Suddenly you have a CEO who is not allowed to attend head office and is forced to work out of another location or from home, and is not permitted to communicate with one of his department heads or a senior employee.
In both case scenarios, the impact on the effective operations of an organisation could be extremely harmful.
Courts won’t have a moral problem restricting a person from attending a workplace if it is required to protect an applicant. Every day courts restrict people in relation to much more important things than work, by way of restraining orders. Every day they stop people from living in their homes, and they prevent people living with, seeing or even communicating with their kids, by way of an order.
Making a restraining order
The basis on which a restraining order can be made varies according to the state jurisdiction. For an order to be made in New South Wales, the court has to be convinced that a person has fears in relation to another person’s behaviour and that there are grounds for those fears. The first tier is a subjective test: does the applicant have fear in relation to the defendant’s behaviour? The second tier is an objective test: would a reasonable person, having experienced what the applicant did, have that fear? This can be the more difficult leg for an applicant to prove.
In South Australia, like in New South Wales, the test is based on an applicant’s fears. In Victoria, Tasmania and Western Australia the test revolves around the defendant’s behaviour, and whether the harassing behaviour is likely to continue.
In each jurisdiction in Australia, the standard of proof is the lesser ‘on the balance of probabilities’ standard, rather than the higher criminal standard of ‘beyond a reasonable doubt’. In New South Wales, the court needs only to find that the defendant’s conduct ‘intimidated’ the applicant to establish grounds for an order to be made. In Victoria, ‘demeaning or derogatory’ comments form the definition of harassment and the basis for an order being made.
Regrettably, some applicants use rest-raining orders as a means of obtaining a benefit against the defendant. I have acted for both police officers and security guards in such proceedings who almost certainly would be unable to continue to work in their chosen fields if a restraining order was made against them. Their partner applicants knew this at the time.
Who is to say that a vexatious or unscrupulous employee in the future may not use a restraining order as a means of leveraging their position against their boss specifically or the company generally? This is even more likely given that some state acts virtually protect applicants from any costs order, so their application has to be considered by the court to be vexatious or frivolous for costs to be awarded against them. The defendants are offered no such similar protection.
Employers and their human resource teams need to be aware of the very significant impact that restraining orders can have on an organisation and devise procedures and training programs to effectively deal with the situation when it inevitably happens in the future