For an employee who is on the receiving end of disciplinary action, performance management or a workplace investigation, it is an upsetting, and even a potentially traumatic experience.
Every employee involved in such a process is entitled to have a support person present during any meetings or interviews.
A failure to afford an employee a support person can result in the process being deemed a breach of procedural fairness, and the outcome may be declared invalid upon review.
what is the role of a support person?
The role of the support person in any interview or meeting is to provide moral and emotional support, ensure that the process is fair, and to assist with communication – they are not required, or permitted, to act as an advocate, put forward a version of events or make an argument on behalf of the employee.
While support persons are entitled to ask some questions about the process, it is crucial that they don’t respond or answer questions in terms of the substance of the matter, on behalf of the employee.
A person engaged as a translator cannot generally act as a support person at the same time.
CAN AN EMPLOYER DENY A REQUEST FOR A SPECIFIC SUPPORT PERSON?
Only in certain exceptional circumstances the employer can refuse to have a specific person sit in as a support person.
These circumstances include where the requested support person:
- Holds a more senior role in the organisation than the person who is conducting the interview – thereby creating a risk of undue influence or pressure by the support person on the interviewer;
- Could be disruptive to the process or has their own agenda (such as a former employee or somebody who is known to be on bad terms with management or the executive);
- Is involved with the subject matter of the investigation or may be witness to some of the events. A person who is involved in the investigation in some way cannot be seen to be neutral and it is not desirable for a potential witness to have access to the respondent’s evidence.
Although employers may be able to object to a specific support person who has been requested, they are required to advise employees of their right to select a different person.
tHE ATTITUDE OF THE FAIR WORK COMMISSION
When determining cases of unfair dismissal, one of the factors the Fair Work Commission considers is whether the employee was unreasonably denied the right to have a support person present during any interviews.
Best practice for employers
To ensure best practice in disciplinary or investigative processes, the following steps should be undertaken:
- Employees must be advised of their right to select a support person for any relevant meeting
- Employees must have the opportunity for the meeting to be organised, within reason, at a time when the support person is available
- The support person must receive a clear explanation of their role – that is, to provide moral support only.
- The employer must take into account any additional considerations that could apply, such as those involved in an Enterprise Agreement or similar negotiated agreement with the employee.
Offering employees a support person to attend any meetings and interviews related to disciplinary action, performance management, or workplace investigation with them, is crucial to the fair outcome of these processes.
For more detailed information on conducting interviews, you can purchase a copy of our book Investigative Interviewing: A Guide for Workplace Investigators. If you’re conducting a workplace investigation and need assistance, contact WISE Workplace today.
Content retrieved from: http://www.wiseworkplace.com.au/_blog/WISE_Blog/post/stand-by-me-the-role-of-the-support-person/.