Protection Orders Allegedly Misused to Sidestep Workplace Discipline

Concerns Over Protection Orders in the Workplace

A growing concern has emerged in South Africa’s workplaces: protection orders, initially designed to safeguard victims of harassment, are allegedly being used by some employees to evade disciplinary action. This trend is raising complex legal and procedural questions about the boundaries of criminal law within employment relationships.

Protection Orders Meant for Safety, Now in Labour Disputes

The Protection from Harassment Act was implemented to offer legal recourse against threatening or abusive behaviour. However, experts warn that its application is increasingly extending into disputes traditionally managed through workplace grievance and disciplinary channels, rather than in the criminal courts.

Rod Harper, head of the employment law department at Gottschalk Attorneys Inc, warns that employees who face disciplinary cases for misconduct or poor performance may try to use these orders as a defence. “Employees who are being correctly disciplined… are starting to rely on the obtaining of protection orders as a defence,” Harper notes, suggesting this brings criminal law procedures into a realm typically governed by internal company policy.

Impact on Managers and Workplace Procedures

The consequences for management and human resources can be serious. Protection orders can restrict communication, physical proximity, or even any form of contact between an employee and a manager. If such an order is granted by a magistrate, managers may find themselves unable to effectively supervise employees, give instructions, or handle disciplinary processes without risking legal repercussions.

Violation of a protection order can have criminal consequences, including possible arrest, prosecution, or imprisonment. These risks can create a chilling effect on normal managerial duties and complicate routine workplace procedures.

“Reasonable managerial conduct, performance management and enforcement of workplace rules do not constitute harassment,” said Harper. “Raising one’s voice does not constitute harassment.”

Despite this, managers have reported receiving police visits to serve court documents summoning them to magistrate’s hearings, sometimes as a result of ordinary workplace interactions.

The Legal Grey Area

One of the primary issues lies in how these cases are adjudicated. Magistrates may lack specialist knowledge of private sector employment law, leading to complications when determining whether conduct is legitimate management or genuine harassment.

When a conflict arises from a private interaction between manager and employee, courts must judge whose account is more credible. This ambiguity can further complicate efforts to resolve workplace discipline cases fairly and efficiently.

Legitimate Harassment Still Recognised

While there is growing attention on the misuse of protection orders, the Act still serves an important role in genuine cases of intimidation, harassment, or abuse within the workplace. Employees facing real threats or mistreatment retain the right to seek protection through the courts.

Harper cautions, however, that while some complaints are valid, courts are sometimes approached over conduct that stems from ordinary managerial responsibilities. This can undermine both the intent of the law and effective workplace management.

Reviewing Workplace Grievance Policies

To address these problems, employers are encouraged to review and strengthen internal grievance policies to ensure that employees have effective avenues for raising concerns before resorting to legal mechanisms designed for serious harassment.

• Employers can discourage unnecessary legal action by handling disputes transparently and promptly.
• Companies are advised to provide legal support to managers facing orders stemming from their legitimate duties.
• Legal recourse for damages may be available if protection orders are misused improperly.

Harper concludes that the ultimate goal should be to use the Protection from Harassment Act for its intended purpose: providing a safeguard for genuine victims of workplace harassment.

The discussion around protection orders and their intersection with workplace discipline is likely to intensify as employers, legal professionals, and policymakers consider the best path forward. The integrity of both labour law and laws protecting against harassment are at stake, demanding careful attention from all sides to maintain a fair and safe working environment.