Workplace investigation support person
Workplace investigation support person – All you wanted to know about a support person but may have been too afraid to ask.
Workplace investigation support person – It should be noted that under Section 387 of the Fair Work Act, in subsection “(d) any unreasonable refusal by the employer to allow a person to have a support person present to assist at any discussions relating to dismissal may be considered as part of the criteria for considering harshness etc.” (Link to s387 FWA)
Although the FWA refers to unreasonable refusal, I recommend always offering a support person to an interviewee whether it is in relation to a disciplinary or performance related matter. If they refuse record the refusal.
So there is no positive obligation under the Fair Work Act to provide a support person, do yourself a favour and avoid the headache, offer and accommodate where possible. Remember while a workplace investigation maybe another day ending in a Y for you it can be very stressful for the interviewee and a support person may make the process easier for all parties.
What is a support person?
Someone who attends the interview to provide emotional support to the interviewee if need be.
What is the role of the support person?
Generally it is to sit down and be quiet. However a support person can ask questions of the interviewer and in most cases can provide advice to the interviewee if appropriate, but should not answer for the interviewee. They may also speak on behalf of the interviewee if that interviewee is not able to do so.
Who can be a support person?
An adult not involved in the interview or investigation.
Can you refuse the interviewee a support person?
The FWA talks about unreasonable refusal at s387 ss(d) and the case of Trembath v RACV Cape Schanck Resort provides some guidance around this issue (with thanks to Adele Garnett Associate at HopgoodGanim Lawyers for this reference)
Personally I recommend that you always offer a support person. I offer a support person in writing to all interviewees; complainants, witnesses and respondents. If they don’t bring one to interview I always remind them they that are able to do so and when we go live on to the audio recording (I always audio record interviews) one of my preamble questions is “I note that you do not have a support person present, are you happy to continue without a support person”
Can you decide who the support person is?
Generally, who are support people?
I have found that support people generally fit into 4 categories
1. Professionals, lawyers, union reps etc, these are usually good value, they know the rules, most are reasonable if they feel that the investigation will be conducted fairly and the investigator is a professional. Senior lawyers generally know the process and the rules, junior lawyers can be problematic if they get a bit enthusiastic, some quiet explanation usually helps.
It is important when dealing with professionals to show that you are equally as professional and that you are investigating the matter in an unbiased manner and not to be intimidated. Some union reps will try be overbearing, they just need to be advised to act in teh best interest of their member.
2. Co-workers, also not usually a problem however well ahead of time and in writing I always advise that the support person should not have any involvement in the matter.
3. Managers, can be problematic, I always ensure that if a manager is present he or she will have no part at all in the final decision making process, in my experience interviewees rarely go for that option. Managers who have any influence or involvement in the final decision making process, this includes having meetings or discussions or being asked for input about the matter with the final decision maker should not be a support person.
4. Family members, here is where problems can and do occur, firstly they don’t understand the role of the support person, they are more likely to overstep especially when support a respondent. I always ask a support person if they understand their role during introductions and live on the record.
Can you decide who the support is not?
Yes, a support person should not have any involvement in the matter under investigation, they should not be a co-complainant, a witness in the matter, definitely not a co-respondent. A child cannot be a support person nor should a person is apparently unsuitable due to any concerns around capacity.
Managers who have any influence or involvement in the final decision making process, this includes having meetings or discussions or being asked for input about the matter with the final decision maker.
In the case of union or other officials, if the proposed support person has been the support person for the other parties in an investigation they may not be suitable, however this may be cause difficulties if you are interviewing a number of people onsite there is only one union person available.
I don’t recommend having the same support person for the complainant/s and the respondents/s
What do I help the support person to ensure the interview proceeds without issues?
1. Clearly explain the process
2. Clearly explain their role.
3. Confirm with the support person that they understand their role and that they understand the boundaries.
4. Provide the support person with the opportunity to ask any questions they may have before the interview starts.
5. Remain patient and professional
What happens if the support person is prompting the interviewee?
This can actually be helpful at times as it is likely that they discussed the beforehand with the interviewee and the support person may be helping the interviewee to recall events. On many occasions I have heard a support person say “Don’t forget to tell him about……” after which I will want to hear it in the interviewees own words.
The interviewee may be nervous and could tend to forget certain details during the interview. Listen carefully, if it is getting out of hand stop the interview and ensure the support person is aware of their role and boundaries.
What happens if the support person is disruptive?
It is always wise to ensure that the support person is aware of their role and boundaries before commencing the interview. If the support person is disruptive during the interview I recommend the following:
- Stop the interview and remind the support person of their role and boundaries. You may have to do this more than once.
- If the interview is becoming unworkable, stop the interview and re-schedule it. It might be wise at this time to discuss the choice of support person with the interviewee.
- Ejection of the support person should be only considered as a last resort, it is very likely that the interview will not get very far after that and the interviewee may be come uncooperative if this occurs.
Can I eject a support person from the interview if they are becoming too disruptive?
Yes (see above) but I don’t recommend it. It could be considered as falling under s387 FWA ss (d). Stop the interview and re-schedule it, discuss the choice of support person with the interviewee.
Can the interviewer have a support person?
Yes and I recommend it if you have a feeling that the interviewee may be difficult.
What can my support person do?
That depends, if they are a co-interviewer they should be taking notes and then ask questions that you may have not or questions that help to clarify matters.
If they are simply there to support you I recommend that your support person should also be taking notes.
Having a support person can help to ensure that complaints are not made against you in regard to the manner in which the interview was conducted.
Why do I need to know about how to deal with a support person?
Workplace investigative interviewing is a skill. A successful interview will enable you to gather evidence that may be vital to the investigation.
Dealing with a support person in a professional manner is part of the job of a professional and skilled investigator.
What do I do if I am not confident?
Get some training, at AWPTI we offer a comprehensive Investigating Workplace Misconduct 2 day course (link to course) that includes a section on dealing with support persons, contact us if you would like more details via email at email@example.com or on 02 9674 4279
If you want to ‘Do it yourself” we also have range of HR Products that will guide you through the process – http://awpti.com.au/hr-products/
The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
You can contact me on 02 9674 4279 or firstname.lastname@example.org
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.
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