EMPLOYEE PERFORMANCE AND DEVELOPMENT
Support persons help to ensure that an employee is supported emotionally, their rights are respected, and the process is fair. This guide provides clarity on an employee’s rights to a support person and a support person’s role during a meeting (such as disciplinary, underperformance, redundancy, show cause or dispute resolution process).
Legal Considerations
Are you aware of your obligation to allow a support person?
Under the Fair Work Act, an employer must not refuse an employee’s request to have a support person present. See Fair Work Act 2009 s.387(d)
There is no obligation to ‘offer’ a support person, however it is best practice to do so. The Fair Work Commission (FWC) may view the failure to offer a support person adversely in a hearing if other aspects of a procedural fair process have also been overlooked. When the FWC examines an unfair dismissal claim, it analyses whether the dismissal was “harsh, unjust, or unreasonable”.
Consider whether any refusal to reschedule a meeting is reasonable. Employees may require reasonable additional time to allow their elected support person to be present (such as a union representative).
See FWC Case Examples to determine what is considered ‘reasonable’.
Are you aware of the type of support person an employee can elect?
A support person can be a co-worker, union representative, legal representative or any other person chosen by the employee, as long as they are willing to act in that capacity. Employers can object to the choice of a support person only in certain circumstances (e.g., there is a conflict of interest, they disrupt the meeting or there are health and safety concerns for that support person).
Documentation
Are you aware of the advantage to offering a support person in writing?
As with any employee meeting, it is best practice to invite the employee to proceedings in writing, giving adequate notice and including details about the option to bring a support person. Issuing a letter in writing ensures that an employer has evidence of the intention to grant a procedural fair process.
Consider including the following in an invitation letter:
the option to bring a support person;
a request for the employee to advise on their elected support person and occupation prior to the meeting (especially if they are a union representative or lawyer);
any persons accompanying the employer in the meeting (e.g., a notetaker).
During the meeting
Are you aware of a support person’s role during a meeting?
The support person's role is generally to provide support and assistance to the employee during a formal meeting (such as a disciplinary, underperformance, redundancy, show cause or dispute resolution process). Typically, a support person is not required for informal conversations (such as performance appraisals).
A support person does not have the authority to advocate for the employee or disrupt proceedings, as their role is not to engage with the meeting, answer questions or speak on behalf of the employee. Instead, their role is to act as a (semi) silent, supportive bystander – they can offer advice to the employee throughout the meeting, ask clarifying questions, take notes or seek to adjourn the meeting to speak privately with the employee.
Often employees elect to have a lawyer or union representative present as their chosen support person. Consider that any refusal to allow these people to be present can be in breach of an employee’s general protections under the Fair Work Act (e.g, taking action against an employee for requesting a union or employer association to represent them).
If an employee brings a union or legal representative to a meeting, confirm at the beginning whether they intend to act as a support person or in a professional capacity. Despite their professional occupation, if they are there to act as a support person, they are not permitted to advocate on behalf of the employee.
There may be occasions where a union or legal representative seek to hold discussions to professionally represent an employee (e.g, following a letter of demand to hold discussions about an underpayment dispute). In these circumstances, an employer can request details about their representation prior to the meeting in writing and may choose to seek third-party legal representation themselves.
Enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. Seek further advice from Fair Work or a lawyer if you require clarity on such clauses or the role of a union representative in meetings.
Are you aware of how to handle a disruptive support person during a meeting?
Where a support person becomes confrontational and disruptive, it can be challenging to take back control of the meeting. However, an employer or representative can ask this person to cease the disruptive behaviour and reiterate the purpose of the meeting (e.g, to understand the employee’s views on each matter or allegation so that a fair outcome can be determined).
If the behaviour continues, you can pause the meeting until it is reasonable to continue. In some instances, it may be appropriate to ask the employee if they wish to proceed with their elected support person or continue the discussions alone. Ensure any disruptive behaviour or discussions with the employee are adequately recorded in the meeting minutes.
Further resources:
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