It is one of those areas of workplace investigations that causes no end of confusion.
This article will discuss the finer points of having a support person present during a workplace investigation.
Though, before we get to that, we need to understand what a support person is.
Section 387(d) of the Fair Work Act 2009 states
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 been further clarified by the Full Bench decision in the V.A.T.E v de Laps  FWCFB 613
In layman’s terms, a support person is there to ‘support’ the person, not be their ‘advocate’
What Can They Do?
What ‘support’ can they provide?
They can provide an activity that ‘supports’ the person they are there for.
This could be things like:
- taking notes
- seeking clarification on questions asked
- requesting break(s)
- helping the employee to formulate an answer
- or generally, any activity that ‘assists’ or ‘supports’ the person.
The only thing they can’t do is ‘advocate’ or talk on the person’s behalf.
Should You Offer One?
There is nothing in current legislation that says you MUST provide one.
This means that the decision is up to you. Though if you don’t be prepared for the process to be interrupted if the employee decides they do want one.
While it may be a hassle in the short term, in the long term, letting the employee know that they can have one could help things down the track.
Who Can Be One?
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. Most of the time, the support person is a union official.
They can even be a lawyer, though they will need to be careful that what they say isn’t viewed as legal advice or advocating for the employee.
Who Can’t Be One?
When deciding that a nominated person is not suitable to be a support person, you need to consider whether that refusale is reasonable.
Remember an unreasonable refusal will have implications if the investigation results in termination.
Your refusal would be considered reasonable if:
The person is a witness to the ‘event’
The person is a ‘co-accused’ to the complaint.
The person’s presence will cause doubt on the integrity of the investigation.
What If They Are Disruptive?
This is where the experience and confidence of the investigator come into play.
There may be occasions where the support person is being disruptive.
In these instances, it acceptable to decide that the support person is no longer suitable to act in that role.
If this is going to happen, I would suggest giving the employee a few warnings that if the support continues, they will be asked to leave.
The same also applies if the support person is acting as an advocate and speaking on the employees behalf.
It would also be wise to advise the employee that having a support person who isn’t disrupting the process, is in their best interests.
Remember, if you do do this, make sure it passes the ‘reasonable person test’.
How Many Can An Employee Have?
Ultimately, it is up to the person conducting the meeting as to how many are there.
Though, to make the process as efficient and as painless as possible, there should really only be four people there.
- The investigator,
- a company representative,
- the employee, and
- their support person.
Remember, when you conduct a workplace investigation, you need to be mindful of how what you are doing will appear to a tribunal or commission.
If it will hold up to their scrutiny, you are on the right path.
If it won’t, ask for help.