Workplace investigations can be stressful, making the presence of a support person invaluable. However, confusion often arises about the distinctions between a support person and an advocate. Knowing these differences is essential for both employers and employees to ensure procedural fairness under Australian workplace laws.
What is a Support Person?
A support person primarily offers emotional and moral support during interviews or meetings in workplace investigations. Their role includes:
Taking notes during the meeting.
- Assisting the employee in understanding the process.
- Requesting breaks if the employee feels overwhelmed.
- Importantly, a support person is not there to speak on behalf of the employee or to present their case. They cannot disrupt the process or influence the investigation’s outcome.
What is an Advocate?
An advocate, on the other hand, actively represents an employee. This may involve speaking on their behalf, arguing their case, or negotiating outcomes. Advocates are often union representatives, lawyers, or industrial advocates. In most cases, the Fair Work Act does not require employers to allow an advocate during workplace investigations unless specified in an Enterprise Agreement or organisational policy.
Key Legal Considerations
Under Section 387 of the Fair Work Act 2009, an employer must not unreasonably refuse an employee’s request to have a support person present during dismissal-related discussions. However, the Act does not mandate allowing a support person to act as an advocate.
Failing to permit a support person can result in claims of procedural unfairness, potentially invalidating the outcomes of investigations or even leading to findings of unfair dismissal. Nonetheless, the Fair Work Commission (FWC) has clarified that the presence of an advocate is not a procedural necessity unless otherwise agreed.
Best Practices for Employers
To maintain procedural fairness, employers should:
- Inform Employees: Notify employees of their right to a support person.
- Define the Role: Clearly outline the responsibilities and limitations of a support person.
- Screen Appropriately: Ensure the chosen support person does not pose a conflict of interest, such as being involved in the investigation.
Choosing the Right Support
Employees can select anyone as a support person, including colleagues, family members, or union representatives. However, this individual must adhere to the role’s boundaries and not act disruptively or as an advocate.
Final Thoughts
The distinction between a support person and an advocate is critical for maintaining fairness and compliance in workplace investigations. Understanding these roles ensures that the process is respectful, balanced, and legally sound for all parties involved.
For more detailed guidance, consulting workplace policies or legal advice is recommended to navigate specific scenarios effectively.