Support person; unfair dismissal

A Full Bench of the Fair Work Commission has ruled that an employee is not entitled to be accompanied by a support person to an investigation about an incident and that if it is just that, an investigation about facts with no conclusion being reached about the implications, sub-sec 387 of the Fair Work Act is not invoked to trigger such an entitlement until there are discussions relating to a dismissal. Accordingly if an employer merely launches an investigation to determine relevant facts, and holds an open mind about the implications for a particular employee until those discussions are held, the absence of a support person is not relevant. The Full Bench also held that it is an error to “conflate” the application of the sub-sec 387 criteria, which need to be addressed quite separately.
 
BlueScope Steel (AIS) Pty Ltd v Agas (2014) FWCFB 5993 delivered on 18 September 2014