Protection orders used to dodge disciplinary action at work
Protection orders intended to protect victims of harassment are allegedly being abused by employees to escape disciplinary action.
Attorneys who assist clients in improperly utilizing the Protection from Harassment Act to intimidate journalists or hinder criminal investigations may face disciplinary measures from their profession and, in certain instances, face criminal charges, according to Myron Mer, a director at Fluxmans Attorneys. Mer emphasized that legal practitioners must uphold an independent duty to the courts and cannot merely follow their clients' instructions when submitting applications under the Act.
The warning comes as there is growing concern that the use of protection orders is being exploited to stifle public scrutiny, interfere with investigations, and impede workplace disciplinary procedures. An attorney cannot justify their actions by solely relying on the client's instructions, Mer stated. Legal practitioners are expected to exercise their own professional judgment, verify the legitimacy of allegations, and avoid misleading the courts.
This obligation is particularly crucial when applications are submitted without notifying the respondents, allowing courts to impose interim restrictions before hearing both sides. Mer stressed that applications brought without notice require careful consideration and full disclosure of material facts, including unfavorable ones.
Existing legislation already outlines consequences for the intentional abuse of the Act. Section 16 permits courts to impose costs against parties who engage in frivolous, vexatious, or unreasonable conduct. Attorneys could face complaints to the Legal Practice Council, disciplinary actions, and, in justified cases, personal costs orders.
However, Mer cautioned that obtaining a tactical advantage does not inherently equate to misconduct, nor does an unsuccessful application necessarily imply dishonesty on the part of the attorney or applicant. The key factors in determining misconduct include whether the application has a genuine factual and legal basis and whether the proceedings are pursued for an improper purpose.
Mer called for increased scrutiny of applications, expedited contested hearings, and consistent consequences for individuals found to be engaging in dishonesty or deliberate abuse. He stressed that the protection afforded by the Act should remain available to those genuinely harassed while ensuring the process is not used as a shield from lawful scrutiny, investigation, or accountability.
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