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Taking out an intervention order against a patient

Taking out an intervention order against a patient

Nick White

When a member has to take out an intervention order against a patient, what is the employer’s responsibility towards the member ­– or does it become a private matter, even though it commenced at work?

Under the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’), an employer must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to health. In addition, contracts of employment contain an implied term that the employer will take reasonable care for the safety of its employees. These duties continue to apply regardless of whether an intervention order has been made to protect an employee from a patient.

The ANMF believes occupational violence and aggression is unacceptable and should be prevented wherever possible. All members have the right to work without being subjected to violence and aggression.

An employee’s application for an intervention order against a patient is, in a sense, a ‘private matter’ between the employee and patient – that is, the employer would not be a party to the court proceeding and the court order would not be binding on the employer. But all of the employer’s usual duties to the employee, including those under the OHS Act, continue to apply.

In Moghimi v Eliana Construction and Developing Group Pty Ltd [2015] FWC 4864, Ms Moghimi and her partner both worked for the same employer. They worked in the same open plan office, but they did not perform common tasks and Ms Moghimi did not have to directly interact with her partner to complete her work tasks. Ms Moghimi was a victim of domestic violence, and an intervention order was issued against her partner.

The Fair Work Commission found that Ms Moghimi was then dismissed because the employer believed that the intervention order meant that she could no longer work in the office. The Commission was not satisfied that this was a valid reason. Among other things, the Commission found that the dismissal was unfair in circumstances that had nothing to do with Ms Moghimi’s conduct and performance, and everything to do with the conduct of another employee (Ms Moghimi’s partner). The Commission stated at [44]:

I accept that there are limits to the extent to which an employer can be expected to accommodate the private lives of employees. Ultimately employees have to be capable of performing the inherent requirements of their jobs. When seeking to accommodate the reasonable needs of employees the impact on the business will be a consideration. However, I am satisfied that Eliana did not explore all available options and discuss these matters over a reasonable period of time with those affected.

Appeals by the employer to a Full Bench of the Commission and the Federal Court were dismissed.

While the circumstances in the Moghimi case were quite different to those that are likely to arise between an employee and a patient, the case illustrates that an employer cannot simply dismiss an intervention order as a private matter between the parties. Employers should explore all available options, discuss these matters over a reasonable period of time with those affected, and seek to accommodate the effect of the intervention order.

In addition to an intervention order, an employee could be eligible to apply to the Fair Work Commission for an order to prevent them from being bullied at work by the patient. This option may be available where the patient repeatedly behaves unreasonably towards the employee and the behaviour creates a risk to health and safety. If the employee has suffered any injury or illness because of the patient’s conduct, they should seek legal advice about their rights under the WorkCover scheme.