become one of the latest corporations to launch a domestic violence policy
, the fact that employers are doing more than ever to support victims of domestic violence is indisputable.
But what can HR do to accommodate an Apprehended Violence Order (AVO) when both of the individuals it applies to are your company’s employees?
“If we had call from an employer where an employee had arrived saying that they had taken out an AVO against a colleague, the first advice we would give them would
be to ask for a copy of the order so that they can see that it has been made by a court and what its terms are,” Patricia Ryan, principal at The Workplace employment lawyers, told HC
She explained that it is vital that employers know exactly what the restrictions are upon the restrained person.
“Another matter of interest would be whether the order was made by consent without admissions – sometimes the person against who the order was sought will consent to the terms in order to avoid inflaming a situation,” she added.
“A lot of AVOs are only temporarily enforceable rather than being open-ended.
“They often arise out of personal relationships that are going on outside of work – for example, if somebody is having an affair with someone else’s partner.
“There might be reasons someone would consent; they may themselves be fearful of the person making the order – just make sure you’re aware of all the facts.”
According to Ryan, the company’s obligations arise out of two areas.
Firstly, employers are obligated to comply with the AVO itself.
“So if the order states that the restrained person cannot come within 50 metres of the other person, unless there’s an exclusion from that within the workplace – which is uncommon –, then the employer must take action to ensure that it is complied with,” Ryan told HC
She added that the employer’s other obligation is around health and safety.
“Under health and safety legislation, employers must provide a safe environment for all employees,” Ryan said.
“In complying with the AVO, the safety obligations under the workplace health and safety legislation extend to cover all other employees, the restrained person as well as the individual who has the order.”
Ryan said that she would advise employers to look at this from a risk assessment matrix.
“What are the risks?” she said.
“Finding out would involve interviewing the involved employees about what happened in order to determine how serious the issue is, and what the risks of something further happening are.
“Based on the findings from that, we would then recommend that the employer does everything they can to comply but also to keep both employees in the workplace.”
Accommodating both employees
Ryan told HC
that there are usually several ways of accommodating all of the involved parties.
“This may involve looking at whether you are able to arrange the workplace in way that the two people are not together so that you can comply with the order,” she said.
“For example, does the company have other worksites? Could the employee work from home or some other place? Does the order prohibit all contact, or just face to face contact? Do you need to prevent contact between them by phone, text and email?”
She also emphasised the importance of keeping both employees informed.
“The restrained employee would need to receive direction that the employer expected them to comply with order, and that if they failed to do so it could result in disciplinary action that could lead to the termination of their employment,” Ryan said.
“Employers also need to remember that an AVO is a document containing sensitive and personal information.
“Therefore, consent would need to be obtained from both of the involved parties to let them approve letting their manager know about the order and the steps the employer is taking to comply with it.
“This could involve seeking permission to let each relevant manager know, as the employees’ direct managers could be different.”
Ryan advised HR to keep the information on a ‘need to know basis’.
“But you must tell employees who is going to be notified about the AVO to avoid breaching the confidentiality of their personal information,” she stressed.
So what happens if accommodating the terms of the order is simply not an option?
“If you have a workplace where working from home or other alternatives can’t work, then the employer may need to consider putting the restricted employee on a period of either paid or unpaid leave,” Ryan suggested.
“That employee might tell you they are going to challenge the order, and be hoping it might be in place for a short period only or be revoked – in that case, interim measures might need to be taken.”
Opting for termination
Ryan outlined the risks involved in choosing to terminate the employment of an employee in response to an AVO.
“If the employer decided that they had no option but to terminate the restricted employee, the Fair Work Act states that they must prove they have a reason to terminate that is related to the conduct or capacity of the employee – including the effect of that conduct on the health, safety and welfare of others – and that they have no
alternative in light of the AVO,” she said.
“The matters I’ve dealt with that have involved AVOs have always had employers who offered alternatives – they had different teams within their workplace, or alternative worksites, so they could redeploy one of the employees to be outside of the physical limitations.”
She added that she has also worked on cases involving casual employees, whose employers rostered those involved so that they never had to work together.
“There are many options that may make it difficult for the employer to argue that they can’t take any steps to comply with an AVO, while keeping the restrained employee at work,” Ryan said.
“Unless the risk assessment showed the AVO supported a pattern of behaviour from the restricted employee, or an unmanageable risk, that termination should be a last resort.
“Try and make this work so that accommodation is the starting point – consider all of the options, and don’t act in haste. Get the facts right.”
Industry specific issues
Another issue that might be relevant is whether an AVO might make it impossible for an employer to keep the restricted individual.
“For example, in the security or law enforcement industries, agencies need to look at the appropriateness of continuing to employ the individual while the AVO is valid,” Ryan said.
“Other employers that this might affect are in child-related work.
“If an AVO is taken out against someone restricting them from contacting the children of the affected employee who obtained the AVO, for example, and they are in child-related employment, then their employer might have to look at their responsibilities in an extra risk assessment to determine whether they are still appropriate.”
Should the restricted employee always be the one to adjust?
Ryan said that occasionally the employer has reason to believe that although the AVO was granted, it is not a reflection of the employee’s character.
“For example, they might suspect that the employee who sought the order had some vindictive motives in doing so – the employer may know more about facts that could lead to those conclusions,” she told HC
“The employer could seek to have the AVO amended to make it more applicable to their workplace, but they would need good grounds for that.
“For example, the employer might have concerns about the conduct of the employee who got the order – they may believe they did it to protect their own position.”
Ryan added that it may purely be practical for the employee with the order to move, just because of the nature of their work. If the restrained employee was a receptionist, but the employee with the order was largely out on the road in a sales role, it may be practical to suggest they relocate their sales person.
“It’s not actually a punishment; it’s part of the risk assessment process,” she explained.
“Look at the employee’s contractual rights – they may have a term in their employment agreement that states although their usual place of work is in a specific location, it may also be in any other location where the employer directs.”
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