In BlueScope Steel (AIS) Pty Ltd v Nejat (Paul) Agas [2014] FWCFB 5993 it highlights the role of a support person during workplace investigations.
Facts
The Fair Work Commission Full Bench recently determined an appeal regarding whether the dismissal of a BlueScope Steel employee, was harsh unjust or unreasonable. The termination was triggered by an incident involving the operation of an overhead crane resulting in damage of approximately $10,000 to the BlueScope product.
Of particular relevance to the decision – and interest to employers generally – was whether the employee was denied procedural fairness by not having a support person present during an investigation meeting into the crane incident.
Held
The Full Bench held that there is no onus on an employer to offer an employee the opportunity to have a support person present at meetings relating to a dismissal.
While the Fair Work Act sets out the following criteria to be considered when determining whether a dismissal is unfair:
“Any unreasonable refusal by the employer to allow the [employee] to have a support person present to assist at any discussions relating to dismissal” (section 387)
There is no obligation on the employer to offer it when a request is not made by the employee.
In the case of this particular employee, as he did not at any point request a support person, BlueScope could not logically have refused his request (whether unreasonably or otherwise). There was therefore no denial of procedural fairness.
Interestingly, the Full Bench also held that a meeting about an incident investigation is not necessarily a meeting “relating to dismissal” in any event. That is, BlueScope may have had grounds to refuse the request for a support person even if it was made by the employee, and even if the refusal was unreasonable, because the meeting related to the investigation not the dismissal (which occurred at a later meeting).
This decision indicates that there is no strict obligation on an employer to offer employees a support person during an investigation meeting, or even a dismissal meeting.
Lessons
This decision indicates that there is no strict obligation on an employer to offer employees a support person during an investigation meeting, or even a dismissal meeting.
This may be of assistance to employers in some situations. However, as a general approach to good workplace practices, EI strongly recommends that employers continue to invite support persons to meetings unless there are overwhelming reasons not to do so. This is especially recommended where the employee is of some particular vulnerability (such as because of their age, or language skills), or where there is a real prospect of the employee misinterpreting the discussions taking place at the meeting.
It is important to keep in mind that a support person is merely there to provide support – not advocacy. If you are concerned that a particular support person may railroad a meeting then you are entirely within your rights to reign them in. Sometimes this will be easier said than done and there may be occasions where it will be best to seek to avoid their involvement at all, and the Full Bench’s decision assists with taking such a stance. But as a matter of standard workplace practice, we would continue to recommend the involvement of support persons on most occasions.