05 May 2021
Formal, independent investigations into workplace issues are becoming increasingly common. Such investigations can be extremely stressful for employees and executives whether they are the complainant or the respondent.
In Goss v Health Generation Pty Ltd  FWC 1751, the Fair Work Commission (Commission) decided that a direction to an employee that she could not discuss the contents of an investigation meeting with her partner was unreasonable, and dismissing her for doing so was unfair.
The Commission also expressed that a support person can help to improve the quality of dialogue in an investigation meeting and is not merely there to be “seen and not heard”.
Ms Goss was employed by Health Generation as the Director of Client Relations. During her employment, she raised allegations about sexual harassment, bullying and unpaid entitlements. Health Generation appointed an independent investigator to look into the allegations. Ms Goss was invited to an interview and the investigator confirmed that she was entitled to have a support person and asked her to choose between her lawyers or another support person. Ms Goss chose to attend the interview with a lawyer. The investigator then issued a direction that the content of the interview must remain confidential between Ms Goss and her legal advisers.
Following the interview, Ms Goss confided in her partner about what was discussed and disclosed to him information that the investigator had heard from another witness. Ms Goss’ partner then sent a series of abusive messages to that witness. Ms Goss’ evidence was that she had expressly requested to her partner that he not contact the witness, but he did so anyway. She also led evidence from a psychologist about the role of her partner in providing her with emotional support. The psychologist gave evidence that precluding Ms Goss from communicating with her partner placed her at significant risk of harm.
The employer terminated Ms Goss’ employment for serious misconduct. Broadly, the reason given was that her partner was not her nominated support person and that disclosing the contents of the investigation meeting to him was a breach of a ‘reasonable and lawful’ direction.
Deputy President Clancy was highly critical of the text messages sent by Ms Goss’ partner, but ultimately considered that there was not a valid reason for dismissal because the confidentiality direction was unreasonable. The Deputy President relevantly stated:
“... 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.”
As there was no valid reason for dismissal, the dismissal was found to be unfair.
Deputy President Clancy also gave his view about the role of a support person in investigatory or disciplinary matters at paragraph  of the decision:
“Support persons have 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...”
While this commentary did not ultimately determine the case, we expect that practitioners may rely on this passage in future on the issue of procedural fairness during investigations or disciplinary meetings.
What does this case mean?
The decision emphasises the importance of employees and executives having access to advice and emotional support during an investigation, and that they cannot be expected to make significant decisions in a “solitary vacuum”.
This case should give employees and executives some comfort that seeking emotional support from a trusted confidant while participating in an investigation will not necessarily create grounds for dismissal, despite employer directions to keep the matter confidential.
However, care should be taken before applying this decision to all investigation or disciplinary matters. Each case will ultimately turn on its own facts. Relevant considerations, in this case, included that the partner was, in fact, providing Ms Goss with ongoing emotional support and that she needed emotional support at the time. There was also no evidence apparent from the decision that Ms Goss had discussed the investigation with anyone other than her partner and her lawyers.
The decision does, however, put employers on notice that they should think carefully about the breadth of any confidentiality directions and consider whether such a direction may hinder an employee from seeking important emotional support.
Authors: Evan Willis & James Stedman
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.