This article originally appeared
in Human Capital Magazine Online
Fairfax Media recently reported
that the manager of a Northern Territory depot caused controversy after allegedly “threatening to shoot” an employee.
The manager is alleged to have made the threats during a meeting, which included telling an electrician that he was going to be shot and to bring a bullet-proof vest to work.
Since the incident, the employee has reportedly been on leave, with a Power and Water spokeswoman confirming that the manager was also on leave pending an investigation.
The allegations call into question what an employer can and should do when faced with threats of violence towards employees in their workplace – particularly given various competing obligations regarding safety and fairness.
spoke to Bryony Binns, partner at Baker & McKenzie, who said that threats to use weapons or cause harm directed towards a particular person may amount to a criminal offence in some circumstances.
“The concept of assault is not limited to physical attacks – an immediate threat of physical violence may also amount to an assault in some jurisdictions,” she explained.
“If an employer becomes aware that one of their employees has made threats to another worker, they have a duty of care under work health and safety law to address the risk.”
She added that the biggest concern should always be to ensure safety – for the person on the receiving end of the threat and more generally within the workplace.
Binns also told HC
that if this behaviour occurs in the workplace, employers “generally don’t have a lot of time to waste”.
“In these cases, HR needs to be careful and recognise that they – and their lawyers – aren't security specialists,” she said.
“[Lawyers] are part of walking through the situation to deal with the impact of threatening behaviour, but it is important to get the appropriate experts involved as early as possible.”
“Depending upon the threat, police are generally the best to advise in these circumstances, so the best course of action would be to have a discussion with them as soon as possible upon becoming aware of an issue.”
If a security consultant is available – for example, an on-site security contractor or building security in a multi-tenant building – they could also shed some light on the best way to handle the employee who made the threat.
“You have to be careful about being confrontational (for example, when investigating whether or not alleged threats have been made), as you don’t know what the accused employee's state of mind may be,” Binns added.
“Sometimes, agitating the situation could pose a further safety risk.”
According to Binns, if a threat of gun violence has been made, HR must factor in the possibility that the individual has, or has access to, firearms.
“This is one of those scenarios where safety is the immediate thought, before thinking about other employment rights and obligations,” she explained.
“We have had a number of tragic incidents involving gun violence in Australia – around busy workplaces – over the last 12 months.
“Employers rightly take threats involving guns and other violence seriously. Police are also very responsive and concerned about threats.”
Binns also noted that threats of violence or intimidation are increasing via social media.
“There may also be instances where employers have to deal with instances where the threat is coming from a member of the public or a customer,” she added, saying that the threat of gun violence or other violence is not a new thing.
Employers operating in the banking industry, and other cash-handling industries, have had to focus on and greatly improve safety and security following fatalities associated with armed robberies.
Various guidelines for those industries have been developed by safety regulators.
“Employers need to be mindful that seeking the right kind of help early is important – this means that they won’t necessarily be thinking of the employment law issues first.”
Binns told HC
that there are several different areas of legislative focus when it comes to employment law and dealing with employee behaviour – from work health and safety laws, to obligations arising out of industrial instruments, and considerations around fair investigation and termination procedures.
“Compliance with one law affecting employment doesn’t necessarily excuse noncompliance with another,” she said.
“However, employers need to be pragmatic in approaching myriad obligations where there is serious risk, and focus on safety first.
“Where the risk is high – like a direct threat to someone’s life with a gun – you have to take it very seriously.”
“Employers have to be realistic about the fact that they may not be best placed to address the risk; it might be – for safety’s sake – best to have the police involved.”