Don’t Speak: When an employee’s support person goes rogue

You’ve heard of situations where an employee had a support person and they’ve either started arguing with you thinking they’re Harvey Specter from Suits, or they talk loudly over everyone else or they start making finger gun gestures at you in a threatening way.  No? Just us?

Hopefully you haven’t had those situations.  But it’s important as an employer to understand the role of the support person and what they can and cannot do.

Can you, in the words of Gwen Stefani, tell them “Don’t Speak”?

What is the purpose of a support person?

A support person is someone that an employee can bring along to a meeting to support them.  There are specific situations where a support person is recognised i.e. in a meeting involving potential termination of employment, and situations where a support person may be allowed but is not required.

In relation to a meeting where termination of employment is a potential outcome, in order to ascertain if a dismissal was unfair, the Fair Work Commission in Australia takes into account a number of factors. These include:

·         whether there was a valid reason for the dismissal related to the person’s capacity or conduct;

·         whether the person was notified of that reason;

· whether the person was given an opportunity to respond to that reason;

· any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

·         if due to unsatisfactory performance, whether the person had been warned;

·         the size of the employer’s enterprise impacting procedures;

·         the absence of dedicated HR expertise;

·         any other matters that the FWC considers relevant.

As outlined in the highlighted reasons above, it is highly recommended that employees are offered the opportunity to have a support person in attendance at any meeting which may result in the termination of their employment.

Other situations where a support person may be offered include during other disciplinary action or performance management meetings not involving termination, involvement in an investigation process, during any investigation meetings, or any meeting with an employee that could potentially be contentious.

Who can be a support person?

Essentially it is the employee’s decision who they wish to have as a support person, subject to any potential conflict of interest.  Many employees bring along a colleague, their spouse, family members, friends, union representatives and even lawyers.

An employer should consider whether the chosen support person may result in a conflict of interest.  For example, if an employee chooses to have a support person with them during an investigation interview, it cannot be another employee who is also a witness in that investigation.

While at times family members and spouses can be an awkward choice for a support person e.g. if you are putting allegations that they sexually harassed another employee in the business while their support person is their wife, or you are alleging that someone stole something and their support person is their mum, it is really up to the employee to choose who they wish to have as their support person.

Employees who are members of a union may ask a union representative, either from within the organisation or from the union to be their support person.  Employees can also ask a lawyer to be their support person, whether it’s a paid lawyer or their brother’s friend of a friend.  Employers often ask us if they should allow a lawyer as a support person.  There is no specific rule excluding lawyers.  The question is, as outlined above, whether the refusal to allow a specific support person is reasonable?

What is the role of the support person?

The role of the support person is to provide support to the employee during the meeting.  Their role is not to advocate or answer questions on behalf of the employee.

Don't speak I know just what you're sayin' So please stop explainin' Don't tell me 'cause it hurts

Don't speak I know what you're thinkin' I don't need your reasons Don't tell me 'cause it hurts

Don’t Speak by No Doubt

Perhaps Gwen Stefani had a point.  Often in meetings where an employee requires a support person, it is because they are being asked about something difficult e.g. a misconduct issue, poor performance, or their role is being made redundant.  An employee sometimes does not want to hear it because it hurts.  This is where a support person can be really helpful, to assist the employee to understand what is being discussed, and to ensure that they understand it.  There may also be clarifying questions that the support person can ask to assist the employee to fully understand the concerns being discussed and what is being asked of them in that meeting.

How to manage a difficult support person

What happens when the support person goes rogue? When they start answering questions on behalf of the employee or talking over people? Or starts behaving in a threatening or intimidating manner?

It is worth reminding the support person here of their role in the meeting.  While their input is valued, their role is to support the employee to answer questions, and not be their advocate.  While they can ask clarifying questions, it is not a cross-examination.

Rather than saying “Don’t speak, I know just what you’re sayin’”, remind them firmly but gently of their role.  You can also suggest a short break to allow the employee and their support person to confer and discuss while you leave the room.

If the matter escalates further, or there is a risk to health and safety, it may be that the meeting needs to be brought to an end and rescheduled, when emotions are less heightened.

Remember that the purpose of the meeting is, usually, to allow the employee to speak.  If a support person is preventing that, then (no doubt) you need to take action.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.