Restraining Order!!!!

[Midwest]

Hi All,
I currently have an employee (a) whom another employee (b) has taken a restraining order out against. Until heard this order prevents a from entering the workplace if b is there (which he is). I have advised A that he can not come to work until this is resolved unless b is off work (holidays or sick). A is now asking for policies etc to states this is legit?

Is it?

I put it down to the same as breaking down 5000km away on the weekend. If there is some reason you can not attend work that is not work related then you use your own leve entitlements or LWOP? (the incident happened at work and is being ivestigated through us as well). We probably would have suspended him with pay if the Restraining Order was not imposed but as it was it is not us preventing him attending work!!!

[Moz]

I'm no expert, so don't take this as advice, but surely it is not your responsibility to enforce the restraining order?

[Qld IR Consultant]

Well this is a tricky one. First off you cannot force the employee to breach the order by forcing A to come to work.

Do you have another site where A can work? Is there ability for A to work from home? Is there alternative duties available?

Also, it is a long shot, and must be approached carefully, but you could meet with B and speak to them about removing the order whilst the investigation takes place. If they are open to this, you can then manage them better by purely ensuring that their paths never cross, whilst you undertake the investigation.

Finally, if the situation is enough to have one of the parties take out an restraining order, I do suggest strongly that you engage a 3rd party with extensive investigation experience to do the workplace investigation.....

[Moz]

Also, it is a long shot, and must be approached carefully, but you could meet with B and speak to them about removing the order whilst the investigation takes place. If they are open to this, you can then manage them better by purely ensuring that their paths never cross, whilst you undertake the investigation.

Why take on that responsibility? The employer could only ensure their paths never cross at work, by suspending (a) and denying (a) entry to the premises. But the employer has absolutely no control over what happens outside the workplace.

Given that the restraining order has already been issued, surely it's already up to (a) to ensure their paths never cross?

My suggestion to the employer would be to suspend (a) on full pay and continue the investigation, as you suggest using someone with expertise in this area, because at the end of the day the employer could be liable if they were negligent in allowing (b) to be harassed,assaulted or whatever by (a). If the employer allowed the matter to escalate to the stage where (b) felt it was necessary to take out a restraining order it is quite likely that this is the case.

[Qld IR Consultant]

I was referring to having the employer only manage them at work.

Suspending one and not the other will make the situation worse. It shows the employer as openly siding (whether they do or not) with 1 over the other. Regardless of who took out the order, there is always 2 sides to every story.

Easiest way out would be to suspend both on full pay and complete the investigation quickly, but thoroughly.

[Midwest]

Thanks guys (guys being meant in a non gender specific term - being good HR staff and all )- we have no other options for work - ie offsite etc - they are both in a manual/maintenance type role so no offsite work available.

The restraining order states that A can not enter the premises where B resides or works.

Mediation will not work as B has advised he feels unsafe and has advised he will be stressed - we need to avoid Workers Comp claim that would inevitably follow.

It is not our role to enforce the order but is this not basically a frustration of contract? The employee is unable to attend work due to external reasons. If this is enforced (is only interim order until court hearing) then he is not able to enter the premises for up to 2 years.

Sticky one is correct!!

[Greg Schmidt]

I'm certainly no expert in this area, but my thoughts are...

It seems unusual that a court has issued such a wide-ranging restraining order. Employee A not only has to avoid B, A is effectively prevented from earning a wage while the restraining order applies. I presume (hope) that the court considered this before issuing the order.

Having said that, it appears that an external occurrence (the issuing of the restraining order) is currently preventing employee A from attending work. If this continues for the medium to long term this would be a frustration of contract. However, a dismissal might be considered harsh if the restraining order will only apply for a short period - in this case I'd suggest that you allow employee A to be absent on LWOP or (if he wants to use it) on Annual leave. You can't make a case that he's abandoned his employment because A has a legitimate reason for not attending work and has informed the employer about it.

If you have not already suspended the employee, then you can tell A that you understand why he's not attending work - but it is his responsibility to apply for leave if he cannot attend, not the employer's responsibility to suspend him with pay.

[hrjazz]

is this not basically a frustration of contract?

I don't see why not. If a person is legally prevented from coming to work and there are no alternatives (as you've stated), then the contract is frustrated as one party cannot honour their commitment (without actually needing to assign fault).

[ER-Enthusiast]

I would consider contacting any police officers involved in the application of the AVO, often they can include flexibility for these extreme circumstances.

I don't know that you can rightfully suspend someone without pay for non-employment related reasons, yes it isn't your fault as the employer nor is it the fault of the employee. We have to ensure procedural fairness in these processes.

Generally in these sorts of situations an AVO wouldn't be passed or it would have some flexibility because it isn't practiacble. I would try and investigate this a little more before reaching your decision.

[hrjazz]

I don't think suspension without pay is the primary issue, it's the fact someone is legally prevented from coming to work due to the AVO. If they did come to work, it appears they would be breaking the law so the employer can't condone this, or it will be culpable too.

Procedural fairness is imperative, but contract law requires the fulfillment of the contract. Frustration of contract doesn't look to who's fault it is, it is just a legal reality that one party cannot fulfil the role for whatever reason. The subsequent industrial law recognises the role of contract law, as long as the minimimum industrial standards are met (generally focussed around procedural fairness); these do not prevent frustration of contract if due process is followed.