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Support person – workplace investigation - All you wanted to know about a support person but were too afraid to ask

June 7, 2017

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.”

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.

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.

Please note under some EBA’s the support person mostly union representatives are provided with the authority to advocate on the employee’s behalf. If that is the case you can rest assured that the union rep will let you know.

Who can be a support person?
An adult not involved in the interview or investigation.

Can you refuse the interviewee a support person?
No, not unless you want to fall foul of s387 ss(d).

Can you decide who the support person can be?

Can you decide who the support is not?
Yes, if the person is a witness in the matter, a co-respondent, a child or if the person is apparently unsuitable. In the case of union officials or other officials, if the proposed support person has been the support person for the other party in an investigation.

What happens if the support person is prompting the interviewee?
This can actually be helpful as they may have discussed the matter beforehand and the support person may be helping the interviewee to recall events. 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:

  1. Stop the interview and ensure the support person is aware of their role and boundaries. You may have to do this more than once
  2. 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

Can I eject a support person from the interview if they are becoming too disruptive?
Yes 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.

This is general information only and does not constitute legal or any other form of advice. If you would like assistance with a workplace matter such as this, or if you require the services of an independent investigator, contact Phil O’Toole at Centium. Centium has conducted many workplace and employment related investigations and can share lessons learnt and good practices observed across industry.

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