Employees are entitled to have a support person present during a meeting related to performance management, investigations and disciplinary action. Failure to afford an employee a support person in a meeting in relation to a dismissal can result in the dismissal being deemed unfair due to the employee not being afforded procedural fairness.
Where an employer dismisses an employee, and an employee subsequently lodges an unfair dismissal claim, the Fair Work Commission will consider whether there was an unreasonable denial of a support person at any discussions relating to the dismissal in order to assess whether the dismissal was harsh, unjust or unreasonable. Therefore, it is particularly important for employers to understand the role of a support person and when they must be afforded to an employee.
Can an employer deny a request for a support person?
There may be occasions where it is appropriate to deny a support person selected by the employee, including when the support person is:
in a more senior role than the person conducting the meeting;
involved in the issues being addressed in the meeting; or
someone who may be disruptive to the process, such as an ex-employee.
If you deny a selected support person, you must make it clear that the employee is able to select a more appropriate support person to avoid breaching the Fair Work Act.
The role of a support person
It is important to confirm to the support person at the outset of the meeting what their role is in the meeting. It should be explained to the support person that they are present in the meeting for emotional support only and they are not to act as an advocate for the employee. The employee must answer the questions themselves, not the support person.
The law is not yet settled in relation to the role of a union official during meetings with an employee. However, the underlying principle remains that an employee is entitled to be a member of a trade union and have that union represent them in workplace disputes. As such, denying an employee to have a union official as a support person would likely result in the Fair Work Commission confirming that the employee was not afforded procedural fairness. With that in mind, although the union official may be able to make comments or ask questions in regards to the process, the employee must answer all direct questions which relate to the dispute.
Notify the employee of an intention to have a meeting and the ability for them to bring a support person;
Clearly outline to the support person what their role is;
Allow the support person to support the employee in the meeting whilst ensuring that they are not acting as an advocate or talking on behalf of the employee; and
Be aware of any additional obligations which may arise under an enterprise agreement.
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