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If you have an upcoming disciplinary meeting with your employee, they may request the company of a support person. A support person is not an advocate for your employee. Instead, a support person is there to provide your employee with emotional support in what is usually a confronting setting. This is because disciplinary meetings often address ongoing performance concerns and serious misconduct, which could result in your employee’s dismissal. You do not have to offer your employee a support person during disciplinary meetings as an employer. Nevertheless, you should be aware of the important role of supporting persons in disciplinary meetings.

This article will outline the role of a support person for your employees and when you may refuse one as the employer. 

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The Purpose of Support Persons

Firstly, a support person is not an advocate for your employee. That is to say, they do not represent your employee or speak on their behalf. Instead, they are present to provide your employee with emotional support in a confrontational setting.

At the beginning of a disciplinary meeting, you should reiterate the role of the support person to the present parties. It would be best to clarify that the support person can:

  • speak with your employee during the meeting to provide personal advice;
  • take notes;
  • ask questions about the processes of the meeting; and
  • ask to adjourn the meeting to speak privately with your employee.

However, a support person must not interrupt the meeting by answering questions or speaking on behalf of your employee. If the support person continues to interrupt, this may be grounds to pause the meeting. Furthermore, when the support person continues to disrupt the meeting, you can ask them to leave. However, it would be best to record any interruptions in the meeting minutes.

Can I Refuse a Support Person?

You do not have to offer your employee a support person as an employer. Instead, under the Fair Work Act, your obligations are not to unreasonably refuse your employee’s request to bring a support person. 

For example, in the case of Trembath v RACV Cape Schanck Resort, the Commissioner found that Ms Trembath’s employer reasonably refused her request for a support person. This was because Ms Trembath had asked a co-worker to be her support person and the co-worker was a management representative involved in the dismissal process.

However, there are certain cases where you may refuse a support person. For instance, you may do so if your employees use a support person who is a potential conflict of interest. If you refuse a particular support person, you should document your reasons for this refusal in writing. You should also give your employee ample time to select a more appropriate choice. This may include:

  • a friend; 
  • mentor; or
  •  union representative. 

If you unreasonably refuse a support person during disciplinary action, the Fair Work Commission (FWC) may find that you did not apply procedural fairness to your employee. This can result in your employee filing an unfair dismissal claim against you.

On the other hand, your employee might choose not to have a support person present. In this instance, you should record their decision in writing. Whilst the meeting can consequently go ahead without a support person, you should note that your employee is allowed to change their mind during the meeting.

Should I Still Offer A Support Person?

Even though you are not obligated to provide your employee with a support person, it is generally best to provide additional support during disciplinary meetings. Offering a support person to your employee can also assist you in defending your employee’s potential claims for compensation. 

In Jimenez v Platypus Pty Limited, the FWC criticised an employer for not making the reasons for a dismissal meeting clear to their employee. Consequently, their employee did not request a support person, which they might have done had they understood the seriousness of the meeting. If the employer had made a proactive offer for a support person, this might have provided evidence that they took reasonable management action when dismissing their employee.

Key Takeaways

As an employer, you do not need to offer a support person to your employees during disciplinary meetings. However, you must not unreasonably refuse your employee’s request for one. During a disciplinary meeting, a support person can: 

  • speak with your employee during the meeting; 
  • take notes;
  • ask questions about the processes of the meeting; and
  • ask to adjourn the meeting to speak privately with your employee.

However, a support person should not interrupt the meeting by speaking on behalf of your employee. When a support person continues to disrupt the meeting, you can ask them to leave.

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. Although an employee can choose a co-worker to be their support person, you might be able to reasonably refuse the request if this were to give rise to a conflict. 

What is a disciplinary meeting?

A disciplinary meeting often addresses serious issues in your employee’s employment. This can include ongoing performance concerns and serious misconduct, resulting in your employee’s dismissal. 

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