FWC explains role of support person

Posted by on May 3, 2021

During COVID-19 restrictions in Victoria, an employee made a complaint to her employer of bullying, sexual harassment and unpaid entitlements which became the subject of an investigation. She subsequently discussed information provided to her in confidence during her interview (conducted via MS Teams) with her support person (who also happened to be her live-in partner). The “support person” then sent a series of text messages to another witness (and former employee) in the investigation, using language that was described as “aggressive, threatening and intimidatory”.

The support person’s messages caused distress to the witness (whom he had known for 30 years) who immediately reported the interaction to the employer. The employer’s legal representative contacted the employee’s lawyer: confirming that the “support person” had contacted a witness; directing the employee cease discussing the matter with their support person; and, warning that disclosure of confidential information constituted serious misconduct.

During the investigation the employee had on multiple occasions been informed of the necessity to maintain confidentiality. She was requested to keep the investigation confidential and not discuss the matter with anyone other than her support person or legal adviser. When confirming the time for the interview, the employer again affirmed via email with the employee’s lawyers that ‘the content of the interview must remain confidential between the employee and you as her legal advisers.’

During the interview the following day, at the commencement of the interview the investigator addressed the employee: “I’m sure it’s been explained to you the discussion that we have today should remain confidential other than as between yourself and your lawyers.

After the interview and on the same day, the employer was made aware of the series of text messages the witness had received from the employee’s ”support person”/partner.

The employer then wrote to the employee’s lawyer stating that if it was established the employee had disclosed confidential information that this would constitute: a breach of a lawful and reasonable direction; behaviour inconsistent with her employment; conduct that caused serious and imminent risk to the health and safety of the witness; and, conduct that caused serious and imminent risk to the reputation of the employer.

The employee’s lawyer responded that the support person is their client’s partner and support person and that the client will continue to speak with their support person regarding the investigation. The lawyer assured the employer that both the employee and support person had been made aware of their obligations in respect of confidentiality, and as such was confident there would not be any further breaches.

The employee’s employment was then terminated. Among the reasons for termination were: they were warned not to breach confidentiality; they had disclosed confidential information to someone who was not their nominated support person but they had later claimed they were; and, they clearly intended to continue to make disclosures to their spouse which represents a wilful breach of their obligations.

The employee made an application for unfair dismissal to the Fair Work Commission. Clancy DP was satisfied the direction that the employee treat the investigation as confidential was lawful, but was not persuaded it was reasonable having regard to the circumstances of the case. It was apparent from the outset that both parties had engaged lawyers and wanted the benefit of legal advice. Clancy DP considered it neither reasonable nor realistic to require the employee to elect to confide in either one support person or her legal advisers acting in the capacity of support person(s), but not both. He found that none of the parties could have anticipated the behaviour of the support person which “detonated” the relationship between the parties.

Clancy DP provides useful summary of the role of a support person who has:

‘… an important and useful role to play when involved in investigatory and disciplinary matters in the workplace. While a support person is not an advocate per se and should not hijack a lawful and reasonable process or answer for an employee, I do not subscribe to the absolute view that they should only be seen and not heard. This is because there may be circumstances in which an employee might be experiencing difficulty in comprehending aspects of the process or an employer might be misconstruing an explanation and the support person present can help improve the quality of the dialogue. Above all, what is required is for all parties to a process and conversation to behave reasonably and respectfully. This means behaving in a civil manner and respecting each other’s rights and obligations.’

The employer’s view about whom the employee could confide in, was ultimately found to be unrealistic:

‘Similarly, I consider it is manifestly unreasonable and unrealistic to seek to insist that a person only consult with their lawyers but not a spouse, de facto partner or other individual upon whom they rely for advice and emotional support. Litigious and potentially litigious matters are emotionally draining and require consideration of complex issues. Decisions of significance need to be made. To have expected an individual to operate within the type of solitary vacuum the Respondent appears to have insisted upon was unreasonable. The reality is that with a disciplinary process or an investigation carried out by an external adviser, a circle of individuals may be party to the subject matter and matters arising.”

Clancy DP concluded that the employee’s disclosure of confidential information to their support person in all the circumstances did not constitute a valid reason for the termination of her employment. The employee could not in the circumstances of this case be held responsible for the actions of the support person. To read the case in full, see here.