I’ll be there for you: The Support Person in the Disciplinary Process

Employees often argue that they have a “right” to a support person when they are invited to attend a “show cause” or termination meeting.  Do employees have this “right”? Should a disciplinary meeting go ahead if the employee does not bring a support person?

One of the key criteria that the Fair Work Commission (FWC) will consider when deciding whether the termination of an employee’s employment was “harsh, unjust or unreasonable” is if there was “any unreasonable refusal by the employer to allow the person to have a support person present” (as per section 387 of the Fair Work Act 2009 (Cth) (FW Act)).

Under these provisions, there is no obligation on employers to provide a support person or for there to be a support person present at disciplinary meetings, only that employers must not unreasonably refuse an employee wishing to have a support person present. However, as a matter of best practice, employers should advise prior to the meeting that the employee has the option to bring a support person and if they elect to do so, ask them to identify who it is prior to the meeting and whether or not they are a lawyer or union representative.

What is the role of a support person?

A support person can only do as the name indicates – “support” the employee. They can take notes at the meeting and generally assist in discussions (this would be particularly applicable for employees who are from non English speaking backgrounds). However, the support person cannot advocate on behalf the employee, that is, they should not answer questions on behalf of the employee, provide explanations or make submissions for the employee.

In the recent decision of David Wates v Goodyear Australia Pty Ltd [2016] FWC 1991, Commissioner Cambridge remarked that the Applicant’s support person (who was a Senator for NSW) was “overtly interventionist”.

Who can be a support person?

There are no strict rules as to who an employee can choose to be their support person. A support person can be (and usually is) a union representative / delegate, family member or friend, or another employee. It is also not uncommon for employees to insist that they have a lawyer as their support person. A Full Bench of the FWC held in Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 there was no obligation to allow the support person to be an advocate and that refusal was not procedurally unfair. While a lawyer can be a support person, they are limited to the role they can perform and cannot advocate on behalf of the employee.

Tips for employers

Where an employee’s employment is at risk of termination, best practice is to encourage the employee to bring a support person to the disciplinary meeting. Where possible, accommodate an employee’s request to reschedule the meeting to allow their support person to be present.

At commencement of the meeting, employers may wish to clarify to all in attendance of what the support person can and cannot do. Where a support person is “overtly interventionist”, employers should consider suspending the meeting.

Ensuring that an employee is afforded procedural fairness, including not refusing a support person in the disciplinary process will assist employers to mitigate claims that any termination of employment was “harsh, unjust or unreasonable”. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

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