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.
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.
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:
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.
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.
To ensure best practice in disciplinary or investigative processes, the following steps should be undertaken:
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.
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