The role of a support person in workplace investigations and disciplinary proceedings

As most business owners and HR professionals would be aware, the hallmark of any compliant workplace investigation or disciplinary proceeding is ensuring ‘procedural fairness’. Affording procedural fairness to an employee includes, among other things, not unreasonably refusing a support person.

Where an employee is terminated and lodges an unfair dismissal claim, the Fair Work Commission (Commission), in determining whether the dismissal was harsh, unjust, or unreasonable, will take into account whether or not the employee was given the opportunity to bring a support person. As such, it is crucial for persons conducting workplace investigations and disciplinary proceedings to understand the role of a support person and when they must be afforded to an employee.

What is a support person?

A support person is a person selected by an employee to offer assistance and guidance during a workplace investigation or disciplinary proceedings.

Who can the employee bring as a support person?

An employee may select a support person from a range of options including, a family member, friend, colleague, lawyer, union representative, or any other nominated person.

However, for the reasons outlined below, it may not always be appropriate for an employee to ask a colleague to act as their support person.

Do I have to offer my employee the ability to bring a support person?

Relevantly, the Fair Work Act 2009 (Cth) (FW Act) simply outlines that an employer must not unreasonably refuse an employee’s request to have a support person present.

However, the FW Act does not impose a positive duty on the employer to offer the employee the opportunity to have a support person.

Notwithstanding the above, even where the employee subject to disciplinary proceedings has not requested a support person, it is considered best practice to advise them of their right to have a support person present. However, in the context of interviewing a witness during a workplace investigation, offering a support person is not necessary.

How much time do I need to give to an employee to arrange a support person?

While there is no prescribed statutory timeframe, the amount of notice given to an employee to arrange a support person should be reasonable. What is considered a ‘reasonable’ timeframe will vary in each scenario. However, 24 to 48 hours’ notice of any workplace investigation, disciplinary or show cause meeting will typically be considered a reasonable span of time for the employee to make arrangements with respect to a support person.

When can I reasonably refuse a support person?

The following scenarios may arise where it would be considered reasonable to refuse an employee’s support person, including, but not limited to:

1. the nominated support person is not available to attend the meeting for an extended period of time;
2. the nominated support person is a party to the issues being addressed in the meeting; and/or
3. the nominated support person is a senior staff member involved in the decision-making process.

The case of Leanne Trembath v RACV Cape Schanck Resort [2017] FWC 4727, highlighted a reasonable refusal of a support person. In this case, the employee requested to have her colleague, a senior staff member, present as her support person at a disciplinary meeting. Given the support person was a management representative involved in the dismissal process, the employer refused the employee’s support person. The Commission found the employer’s refusal of the support person to be reasonable.

What if I unreasonably refuse my employee’s support person?

Unreasonably refusing an employee’s nominated support person during a workplace investigation may render the investigation procedurally unfair.

Should the workplace investigation or disciplinary proceedings result in termination of employment, unreasonably refusing a support person can be at the business’ detriment. If the employee seeks to lodge an unfair dismissal claim after being dismissed, the Commission may consider the dismissal to be harsh, unjust, or unreasonable where a support person was unreasonably refused.

In the case of Laker v Bendigo and Adelaide Bank Limited [2010] FWA 5713, the employee was terminated for performance issues and had requested that the disciplinary proceedings be rescheduled to allow for the attendance of a union representative. The employer refused to reschedule the meeting. The Commission held the employer’s refusal of a support person to be unreasonable as rescheduling the meeting would not have disadvantaged the employer.

What is the role of a support person?

The support person’s responsibility is to offer emotional support to the employee who is being interviewed or disciplined. They may assist by taking notes, explaining, or clarifying questions for the employee, and requesting brief breaks. It is important to note that a support person is generally not in attendance to advocate on a person’s behalf. Specifically, a support person should not respond to questions on behalf of the employee or otherwise, disrupt the investigation proceedings.

What if the support person disrupts the meeting?

Unfortunately, a support person may become hostile and seek to disrupt the meeting. However, there are some simple ways to minimise the risk of this occurring.

Firstly, it is essential to let the employee know what their nominated support person’s role is (i.e., providing emotional support), prior to the meeting. Such information could be detailed in the meeting invitation. Secondly, at the commencement of the meeting, it is recommended to address the support person in attendance and advise that they can only provide emotional support and cannot answer questions on behalf of the employee.

In the event that the support person begins to advocate for the employee, the employer can pause the meeting and remind the support person of their role and provide them with another opportunity to comply. Alternatively, if the support person persists in acting as an advocate, the meeting can be rescheduled and the employee can be requested to choose a different support person.

Want To Know More?

If you want to learn more about the role of a support person, and effective workplace investigation practices, come along to our ‘Workplace Investigations Masterclass’ webinar on 31 May 2023, presented by Legal Practice Director, Lindsay Carroll. You can register here.

Alternatively, please contact NRA Legal on 1800 572 679.