Workplace Investigations and the Support Person (Updated 2019)

Support person.

It is one of those areas of workplace investigations that causes no end of confusion.

When I first wrote this article, I had the belief that during a workplace investigation, the employee is only able to bring in a support person.

Lately, my thoughts have changed on that one, and this article will go some way towards explaining my current thinking on the matter.

Now be warned, while it does go against current thinking, it may not necessarily be wrong.

How Things Are At The Moment

The current consensus with regards to workplace investigations is that the employee attending the meeting is able to have a support person present.

The support person is only there to provide support, nothing else.

Some say that it is only limited to emotional “support”, while others aren’t too sure.

They use the de Laps v VATE case to justify their thinking. (More on that one later).

There are also some who say that having a Union official is also perfectly acceptable.

And, there are others who really have no idea and choose to wing it.

Why We Are All Wrong

The reasoning for only allowing a support person to attend a workplace investigation meeting comes from s387(d) of the Fair Work Act 2009 (Cth)

any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

This has led to people drawing the long bow that because a workplace investigation may lead to dismissal, that the above section applies.

Except, if it is a properly conducted workplace investigation, the disciplinary or dismissal process will be totally separate from it.

The workplace investigation is simply the gathering of information to compile a present a final report indicating whether the allegations have been substantiated or not.

The workplace investigator shouldn’t be the person who decides whether the employee is dismissed, or what discipline actions they face.

Therefore, the above section of the Fair Work Act doesn’t apply.

Court Cases

Two cases in particular have a bearing on the role of a support person.

de Laps v VATE

The de Laps v Victorian Association for the Teaching of English Inc (VATE) case (2013 FWC 4163) is used as reaffirming the view that only a support person is allowed to attend a workplace investigation meeting.

In this case, Ms de Laps wanted to attend a meeting with her lawyer, and that request was refused.

In the initial unfair dismissal application, Commissioner Ryan stated:

[112] In this regard I have specifically taken into account whether the action of resigning was an appropriate response given the very clear alternative response available to Ms de Laps of continuing her employment and attending the meeting that had been scheduled for 17 December 2012 I do not consider that the approach adopted by VATE in its communications with Ms de Laps between 10 December 2012 and 13 December 2012 was designed to accord procedural fairness to Ms de Laps. Whilst a list of 22 allegations was given to Ms de Laps on 13 December 2012 the lack of disclosure by VATE of the material they already had in their possession together with the tight timeframe of having a meeting on 17 December 2012 and together with the refusal to allow Ms de Laps to have an advocate at the meeting on 17 December 2012 all strongly point to a process that was not intended to be fair.

Though in the Full Bench appeal (2014 FWCFB 613), the following was said

[52] Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”. 46 Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.

Which I find interesting because the proposed meeting on 17 December 2012 was essentially the commencement of a workplace investigation into allegations agains Ms de Laps.

And, no mention of termination was made in the letter from VATE that Ms de Laps’ employment would be terminated. Only that depending on the outcome, termination may be a result.

2. Depending on the outcome and to ensure you understand the seriousness of the situation we advise that disciplinary action may be taken against you including the termination of your employment (either summarily or with notice), you may be issued with a formal warning or put on a formal performance improvement plan.

(Paragraph 45 – [2014] FWCFB 613) 

Vong v Sika Australia

This case is also one that is regularly mistakenly cited as having an impact on the attendance of a “support person”.

In this one, it is about the role of a Union official’s attendance during a dispute and disciplinary meeting.

It is also worth noting, that when it comes to disputes or disciplinary meetings, that an enterprise agreement may state that the employee is entitled to be represented by someone.

For example, a clause from a recently approved ETU enterprise agreement, under the Discipline clause.

Employees are entitled to be represented by a representative of their choice during the disciplinary process, should they so choose.

So, Who Can Be One?

Now that I have confused things even further than they were before, who can be a support person?

Essentially, anyone can be a support person for a workplace investigation meeting.

While the person can be an employee, they don’t need to be one.

They can be a friend, or family member.

They can even be a clown. (Though the making of balloon animals, and faces is likely to be viewed as being disruptive).

Most of the time, the support person is a Union official. (Normally, I would advise you that care needs to be taken in this part to make sure that the Union official isn’t representing the member. Though I won’t be doing that now).

They can even be a lawyer. (Personally, I would advise against having a lawyer attend a workplace investigation meeting, as their presence may change the nature of the investigation).

What Does It All Mean?

Ultimately, whether the support person is just that, or something else really depends on the competence and abilities of the workplace investigator.

The workplace investigator is the one who sets the tone for the meeting, and should be the one who is in control of it. (Don’t let the support person control the meeting, apart from suggesting that breaks need to be taken).

This is why regular training sessions are important, regardless of how long the person has been a workplace investigator for, and how many they have done.

And, most importantly, seek help.

Updated: 14 October 2019

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