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If an employee has been underperforming, or there is some other concern with the execution of their duties, an employer may have to organise a disciplinary meeting with the employee to address these issues.

In that situation an employee will typically have the right to bring a support person to this meeting.  It is crucial for employers to be aware of the law surrounding support persons in disciplinary interviews to ensure that they fulfil all their legal obligations to avoid unfair dismissal claims. This article will address the role of support persons in disciplinary meetings, and the obligations of employers.

 

Role of a Support Person

 

Support persons are only permitted at meetings which are of a disciplinary nature, and these include meetings to discuss an employee’s impending dismissal. Disciplinary meetings are regarded as quite serious, and typically involve the employee and at least one manager. Given the serious nature of these meetings, they can be quite confronting for employees.  For that reason, bringing a support person may help them.  A support person’s main function is to provide moral support to the employee during the meeting not to argue the employee’s case.

 

What a support person can do

 

The support person can be selected by the employee and may potentially be a friend, partner, union representative or mentor. During the meeting the support person can:

  • Sit next to the employee;
  • Speak with the employee (if necessary); and
  • Be available to speak with the employee following the meeting.

 

What a support person can’t do

 

A support person cannot:

  • Attend meetings of a non-disciplinary nature, such as annual appraisal meetings;
  • Speak on behalf of the employee;
  • Unduly interrupt the meeting.

Prior to the meeting, the employer should notify the employee in writing of their right to a support person of their choice. 

The employer should make it clear that a support person cannot speak on behalf of the employee. If this occurs during the meeting, the employer should provide the support person with a warning and make a record of any interruptions in the minutes of the meeting. Excessive interruptions may provide the right to ask a support person to leave, however this should only be done in extreme circumstances, as it has the potential to expose you to unfair dismissal claims. If you do elect to do this, you should offer the employee the option to either seek another support person or continue with the meeting.

If you deny an employee a support person in a disciplinary meeting to discuss their termination, they may be able to launch an unfair dismissal claim against you. If the Fair Work Commission (FWC) finds that a case has been established, you may be ordered to pay compensation to the employee.

 

The Fair Work Commission

 

In determining whether a dismissal was unfair, the FWC will look at, in addition to other things, whether the dismissal was harsh, unjust, or unreasonable. Amongst other obligations, employers must not deny an employee’s request to bring a support person to the meeting to discuss their dismissal, in line with the Fair Work Act 2009 (Cth).

If you do not allow the employee a support person at the meeting to discuss their dismissal, and then subsequently dismiss them, the FWC may potentially find that you acted unreasonably and did not provide “procedural fairness”.

Procedural fairness refers to acting in a just, unbiased manner during a decision-making process. Whilst there is no positive duty to offer the employee a support person under the Fair Work Act, you cannot deny an employee’s request for one. In this way, to ensure that you are protected from potential unfair dismissal claims, it may be beneficial to notify the employee of their right to bring a support person.

 

Can Employers Refuse a Support Person?

 

Employers should only reject an employee’s choice of support person if there is likely to be a conflict of interest. For example, if the chosen support person is also involved in the matter to be discussed in the meeting, this may not be beneficial.  For this reason, the preferred approach is to notify the employee to select an external person such as a union representative.

If you refuse an employee’s choice of support person, you should provide them with a letter outlining your reasons for this and keep a copy of this. You should also provide the employee with an opportunity to select another support person.

It is important that you do not select a support person for the employee, as this must be a decision made by them.

It should also be noted that it is acceptable to proceed with the meeting without a support person if the employee so chooses. This decision of the employee should also be recorded in writing. If an employee changes their mind and wishes to have a support person then they should be provided with an opportunity to select one and bring them to the meeting.

 

Key Takeaways

 

  • It is important that in disciplinary meetings (meetings of a serious nature), you provide the employee with an opportunity to select and bring a support person.
  • Support persons can only provide moral support, and do not act as a representative or speaker for the employee.
  • If you deny an employee’s request to bring a support person to a meeting to discuss their dismissal, you risk having an unfair dismissal claim filed against you.

If you need advice about unfair dismissal claims or the rights and obligations in relation to support persons, our specialist employment lawyers can help. Contact Lord Commercial Lawyers on 9600 0162 or email us at info@lordlaw.com.au or fill out the form on this page.

 

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