Workplace investigations are often daunting for all parties involved and can be a stressful and emotional experience, particularly for the interviewee. It is a common and accepted practice for the interviewee to bring a support person to their interview to help them through the process.
There is a balancing act required though, as misconceptions around the role of the support person, particularly in the public sector, have recently arisen. It is important to establish clarity on the roles of everyone involved in the investigation to ensure the process is effective as a means of gathering information, while also being respectful to the people involved.
The investigator’s responsibility
It is not the role or responsibility of the investigator to ensure a support person accompanies an interviewee (even a Subject Officer) during their interview. It is not even the role or responsibility of the investigator to ensure an interviewee is aware of their right to have a support person present. This is often cited by interviewees as being one of the rules of natural justice, of which it is not.
The only area of responsibility we investigators have in this respect is that we cannot actively prevent or deny an interviewee from having a support person present (unless of course, the support person is not an appropriate one).
However, whilst not a principal of natural justice, I always convey to any investigators I train that it is considered investigative best practice to ensure all interviewees (not just Subject Officers) are aware of their right to have an appropriate support person present. I generally do this when arranging appointments for interviews.
Support person versus union representative
In Queensland there appears to be a commonly mistaken belief that there are different types or levels of support people. I have found myself arguing with representatives from various unions after I have commenced an interview and introduced the various parties present, identifying any support persons. I then routinely caution the support person that they must not answer questions or otherwise advocate on behalf of the interviewee. This has been met with a response of, “I am not here as a support person, I am here as [interviewee]’s union rep” and “I can advocate for my member” (or words to that effect).
This appears to have come about due to the following point on the Queensland Government Workplace Investigations web page:
“The role of an industrial representative.
An industrial representative has a role to represent their members in accordance with, and to the extent that industrial legislation and their union rules provide. This may involve asking clarifying questions and, on occasion, advocating to ensure that procedural fairness has been afforded to their member.
There will be occasions that only the employee can give evidence regarding matters or incidents. In a meeting, it is not the role of the industrial representative to provide direct evidence or defend an employee in respect of an allegation relating to workplace performance or conduct.”1
The ambiguity of this statement may be a contributing factor to the confusion. Let’s look at “…There will be occasions that only the employee can give evidence regarding matters or incidents…”. It is a basic rule of workplace investigations that only one person is interviewed at a time. Therefore, only the employee (the interviewee) can and should ever give evidence regarding matters or incidents (not just on “occasions”). That is the whole point of the interview. Only the employee was there at the time of the incident or can provide information about the matter at hand, and that is why they are being interviewed.
If a support person was also present during a particular incident being discussed then they are not an appropriate support person, as they too are a witness and should be interviewed separately. Likewise, if the support person has applicable information to contribute about a particular matter (as opposed to a specific incident, for example policy and procedure) they should also be interviewed separately.
I make it very clear when I am conducting an interview as a workplace investigator that there is no distinction between a union rep and a non-union rep - they are both support people within the context of the interview process. Interview technique and questioning should not alter at all when a support person announces they are a union rep. Both are afforded exactly the same rights and have exactly the same restrictions involved. There is no role for anyone in that process, other than the interviewer(s), interviewee and a support person.
However, I generally give support people some leeway, and will allow them to ask a clarifying question or two during an interview, but do not envisage a scenario in which a support person would need to advocate on behalf of the interviewee “to ensure that procedural fairness has been afforded”. I can only assume this text has been included on the Queensland Government website to protect interviewees from less scrupulous operators.
If you are looking for more clarification on the role of a support person, or for assistance with a workplace investigation, please contact your BDO advisor.