Being interviewed as part of a workplace investigation can be a stressful, emotional and intimidating experience for all parties – the complainant, the respondent and witnesses. Being able to bring along a support to attend the interview with them can be comforting for participants. But is also important to establish some clear ground rules, to ensure everyone understands and respects their role in the process.
In this post, we answer the some common questions about how to deal with support people when conducting a workplace investigation.
1. What is the role of a support person?
The role of the support person is to look after the psychological wellbeing of the interviewee, but not to advocate for them or represent them. The support person may, for example, request a break in proceedings if they see the interviewee becoming tired or distressed or confused. They can just ‘be there’ as an independent set of eyes and ears, and be able to debrief with the interviewee afterward. The support person is a mostly silent observer of proceedings. The role of a support person should be clearly defined in your policy.
2. Do I have to offer a support person?
The legislative requirement is that a request for a support person cannot be unreasonably refused. There is no legal obligation to offer a support person to all parties.
Despite this, best practice in workplace investigations is to always offer all parties the opportunity to fill this role. Many people will decide that they don’t need a support person, but it is critical for due process that you have made the offer and recorded the interviewee’s acceptance or non-acceptance of the offer to bring a support person along.
3. What is the difference between a support person and a representative?
Sometimes, an Enterprise Agreement or policy offers complainants or respondents the opportunity to be represented in the process (for example by a union official or lawyer). In this case, the representative may speak for the interviewee. This is generally not the preference of the investigator who wants to hear from the person present at the events, in their own words and in a spontaneous manner so as to best evaluate the material on offer.
It is important to note that this is a different role to a support person.
There is no general legal requirement to allow an advocate or representative into the interview (see Victorian Association for the Teaching of English Inc. v de Laps [2014] FWCFB 613).
4. Who can be a support person?
It is usually the case that employees can select a support person of their choice – subject to the scope of the employer policy.
From a best-practice perspective, we recommend that your policy excludes the following from being a support person:
- anyone who might be needed to provide independent witness data;
- anyone who is likely to be interpreted as showing employer preference for one party rather than the other (for example a senior manager or Board member of the same organisation supporting one party);
- anyone who will be required to make decisions about the outcomes from the investigation;
- anyone who is known personally to the investigator.
The employee can, of course, still elect to bring a union delegate as a support person if your policy permits. However in this case, their role is not to represent. Most officials are well aware of the distinction and operate accordingly.
It is important to ask the interviewee to provide you with the name of the support person before they turn up to the interview, so that the investigator can check that the proposed support person is not a potential witness, known personally to the investigator or otherwise inappropriate.
When choosing a support person, it is important not to impose a choice on the interviewee and to ensure that the support person is in a position to provide actual support to an interviewee.
A decision late last year in Leanne Trembath v RACV Cape Schanck Resort [2017] FWC 4727 explored this issue. The employer had concerns regarding Ms Trembath’s compliance with their cashiering policy and invited her to a meeting. Ms Trembath was also invited to bring a support person. The employer explained that they believed that the support person Ms Trembath had elected represented a conflict of interest and instead the employer elected for the Resort Manager to be the support person. The FWC was very scathing of the Resort Manager being the support person and stated:
“By no means could [the resort manager] be regarded as someone who could give Ms Trembath ‘support’ in any capacities implied by that word.”
5. What are the confidentiality obligations for support people?
Support people should be asked to maintain the same level of confidentiality as the interviewee. Support people (and interviewees for that matter) should be provided with clear information about their role and the expectation that they keep the matter discussed at interview private and confidential. (see CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336).
6. How much intervention should investigations allow from support people during an interview?
In order to get off on the right foot during an interview, it is important that there is a shared understanding of the role of the support person.
If the support person breaks out of their support role and starts intervening in proceedings, you need to make a determination as to whether their interventions are generally helping or hindering your process.
Pre-empting the interviewee’s answers, amending the interviewee’s answers or cross questioning the investigator about their questions are some indications of unhelpful intervention.
When this first occurs, we suggest that you politely remind the support person of their role in the process and restate the need for you to hear the interviewee respond on their own behalf in their own words, as this is the most compelling evidence.
You may need to reconfirm that you cannot accept the responses of someone who was not witness to the matters in question. (By definition, the support person role should not be filled by someone who has independent witness information you may need to collect).
If intervention continues, you can suggest to the interviewee that you call a break for them to converse privately with their support person. If interference continues thereafter, you may need to advise the interviewee that you will need to reschedule the interview as it is being derailed and request that the interviewee finds an alternative support person who is prepared to participate in that role as defined.
Another practical way to deal with the issue of a support person who continues to speak in an interview is to politely ask them to not interrupt when you are taking evidence from the interviewee but to offer them a chance to put forward their comments or questions at the end of the interview. This at least allows you to get the evidence directly from the interviewee and provides a chance for the support person to be heard as well.
There are, however, support person interventions that can assist the process and which can be accommodated. This includes posing questions to the interviewee pertinent to what you are asking. (“Did you want to tell the investigator about the letter”) or focussing observations (“I’m not sure that you answered the investigator’s question very clearly there”). There are also occasions where the support person does have expertise in a policy or procedure and offers to clarify this and you may elect to allow that, as relevant to the matter. In these cases, you may elect to allow the interventions.
7. What if the support person is not available?
Another commonly occurring problem is that the support person ‘of choice’ is not available in a reasonable time frame. In general, the employee does not have the right to unreasonably delay the investigation process in order to have a specific individual in this role and should be directed to find an alternate if there is not reasonable availability of their support person of choice.
Best Practice in Workplace Investigations
If you would like to know more about how to conduct an effective workplace investigation, then come along to our next one day ‘Conducting Workplace Investigations’ training course, talk to us about arranging in house training or purchase a copy of our book “Workplace Investigations”, recently published by Wolters Kluwer.
About Jodie Fox
Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.
Worklogic offers a range of services to help you develop effective employment policies and effective code of conduct and training programs for your organisation. If you need help in this area, contact Jodie for an obligation free consultation via email or call (03) 9981 6558.
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