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As an employer, you may need to hold a disciplinary meeting with one of your employees to address ongoing performance concerns or an issue of misconduct. Under the Fair Work Act, you do not have to offer your employee a support person during disciplinary meetings. However, you cannot unreasonably refuse an employee’s request to have a support person present during a disciplinary meeting. Ultimately, 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 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 (FWC) examines an unfair dismissal claim, it analyses whether the dismissal was “harsh, unjust, or unreasonable”. Therefore, to ensure your compliance with the Fair Work Act, you cannot unreasonably refuse your employee’s request for a support person at a meeting to discuss a dismissal. While you do not have to offer your employee a support person, you cannot refuse a request for a support person without a justifiable reason. 

If you deny an employee a support person, the FWC may find that you did not follow the process of ‘procedural fairness’ and, therefore, the dismissal was unfair. Therefore, it can be a good idea to tell the employee they can bring a support person. This way, it is evident you are offering your 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. Additionally, they will be available to discuss 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, you should explain in writing that the employee may have a support person present and that it is up to the employee to choose this person. It would be best if you made it clear that the role of their 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 involved in the matter to be their support person. Instead, like a close friend, an external person is more appropriate.

In the case of Trembath v RACV Cape Schanck Resort, the FWC found that the employer’s refusal of a support person was reasonable. This refusal was because the employee had asked a co-worker to be their support person. However, this co-worker was a management representative involved in the dismissal process.

If you refuse the initial choice of a support person, ensure that you document your reasons in writing. In addition, 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 essential to have this decision in writing. In this case, the meeting can go ahead without a support person. However, the employee may still 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. Remember, a support person is not an advocate for your employee. Instead, a support person is there to provide your employee with emotional and moral support in what is usually a confronting meeting. Whilst a support person can speak with the employee, the support person should not answer questions on your employee’s behalf. If they do so, you should remind them of their role and record any interruptions in the minutes.

Moreover, excessive interruptions may be grounds to pause the meeting. If the support person continues this behaviour, you can ask them to leave. However, it would help if you always gave the employee the chance to have a support person of their choosing present. Therefore, you should only eject the support person in extreme circumstances. Then, 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

A support person should not speak on behalf of your employee during disciplinary meetings. Instead, they are present to provide your employee with emotional and moral support. If the support person consistently interrupts the meeting by answering questions, this is grounds for you to pause the meeting. You should ensure that you record these interruptions in the meeting minutes. Ultimately, whilst you do not have to provide your employee with a support person during disciplinary meetings, it would be wise to do so regardless. This is because when you dismiss your employee, giving them the option for a support person can exhibit procedural fairness.  

If you want to learn more about the role of support persons in disciplinary meetings, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

Who can be a support person? 

A support person can be a friend, family member, counsellor or union representative. 

Can I refuse a request for a support person?

Under the Fair Work Act, you cannot unreasonably refuse a request for a support person. In this sense, you should only refuse an employee’s request for a support person if there is a potential conflict of interest. For example, where your employee chooses a co-worker or management representative who is involved in the disciplinary matter. 

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