As an employer, you will probably need to hold a disciplinary meeting with one of your employees at some point. Often, a support person accompanies an employee to a disciplinary meeting. Knowing the role of a support person in a disciplinary meeting and the law around an employee’s right to a support person will help to protect you from unfair dismissal claims. This article discusses the role of a support person in a disciplinary meeting.

The Fair Work Commission’s Approach

When the Fair Work Commission (the Commission) examines an unfair dismissal claim, it analyses whether the dismissal was “harsh, unjust, or unreasonable”. To ensure your compliance with the Fair Work Act 2009 (Cth), you cannot deny someone a support person at a meeting to discuss a dismissal, if the employee requests one.

If you deny an employee a support person, the Commission may find that you did not give the employee “procedural fairness” and, therefore, the dismissal was unfair. Although you do not have to offer the employee a support person under the Fair Work Act (you do not have to offer, but you cannot deny a request), it can be a good idea to tell the employee they can bring a support person with them. This way, it is extremely clear you are offering the employee procedural fairness.

A Support Person in a Disciplinary Meeting

You only have to allow a support person in a meeting if it is a disciplinary meeting. Disciplinary meetings are serious meetings between an employee and one or more of their managers. These meetings usually relate to the employee’s potential dismissal.  A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed.

A support person in a disciplinary meeting can provide moral support to the employee. They might be a friend, mentor, or union representative. During the meeting, they will often sit next to the employee and be available to chat about the meeting afterwards with the employee.

A support person should not attend routine meetings, such as annual appraisals.

How to Prepare for a Disciplinary Meeting With an Employee

Before the meeting, explain in writing that the employee may have a support person present and that it is up to the employee to choose this person. You should also mention that the role of the support person is purely to provide moral and emotional support, rather than answer questions on behalf of the employee.

Refusing a Support Person

You should only refuse an employee’s choice of support person if there is a potential conflict of interest. For example, the employee should not ask another employee also involved in the matter to be their support person. An external person, like a close friend, is more appropriate.

However, if you do refuse the initial choice of support person, ensure that you document your reasons in writing. You should also give the employee time to select a more appropriate choice. You should not choose a support person for the employee, or replace their initial choice with your own.

Some employees will elect not to have a support person. When this happens, it is important to have this decision recorded in writing. In this case, the meeting can go ahead without a support person. However, the employee is still allowed to change their mind and invite a support person to the meeting.

A Support Person’s Behaviour in the Meeting

The person leading the meeting should clarify at the outset that the support person should not speak on behalf of the employee. They can speak with the employee. If the support person starts answering questions, you should remind them that they cannot do this. You should record any interruptions in the minutes.

Excessive interruptions may be grounds to pause the meeting. If the support person continues with this behaviour, you can ask them to leave. However, you must always give the employee the chance to have a support person of their choosing present. Therefore, you should only eject the support person in extreme circumstances. You can offer the employee the opportunity to find an alternative person, or continue with the meeting, if appropriate.

If you deny an employee a support person in a disciplinary meeting, and terminate their employment, they may commence an unfair dismissal claim against you. This is just one of the factors relevant to an unfair dismissal claim. Therefore, you must allow a support person in any meetings relating to the employee’s dismissal.

Key Takeaways

An employee has the right to request a support person for disciplinary meetings. You should extend this opportunity to them in writing. You should give the employee appropriate time to choose their support person. In the meeting, the support person is only there to provide moral support. However, they play an important role in ensuring that the employee is not dismissed unfairly.

If you need further advice on whether a support person is necessary at a meeting with one of your employees, please get in touch with LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

You may also like to consider our Employment Advisory Service, which is designed to assist employers at every stage of the employment lifecycle and gives you access to a hands-on lawyer throughout the disciplinary process.

Jessica Anderson
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