In recent times we have received a number of questions from employers about the entitlement of employees to have a support person at a disciplinary meeting and the role of the support person at the meeting.
These are a few of the commonly asked questions and the answers we offer:
- What is the entitlement to a support person?
Under the Fair Work Act, any unreasonable refusal by an employer to allow a person to have a support person present to assist at any discussions relating to dismissal, is a factor to which the Fair Work Commission must have regard to in any unfair dismissal proceedings.
Importantly an employer does not have an obligation to ensure the employee has a support person present. Rather, unfairness may arise if the employer unreasonably refuses a request from an employee to have a support person present.
- What happens if the employee wants to reschedule the meeting to suit the support person?
This may arise when an employer directs an employee to attend a performance or disciplinary meeting and tells them they are welcome to bring a support person. The employee seeks to reschedule based on the availability of their lawyer. How does the employer respond?
This was addressed in a recent case where the employer scheduled two meetings to discuss allegations against an employee. The employee’s representative requested that both those meetings be rescheduled and the employer refused.
The Fair Work Commission found that the employer had provided adequate notice of the meetings and the employee’s request to reschedule had been made on relatively short notice. Therefore, the refusal was not unreasonable.
Given the role of a support person, the fact a lawyer is not able to attend is no basis for rescheduling.
- What is the role of a support person?
The Fair Work Commission has confirmed that the role of a support person is to support and not to act as advocate.
Support people can take notes, consult with the employee should the employee require a break and provide emotional support to the employee. Support people are not there to support the employee’s case or to respond on the employee’s behalf to issues raised by the employer.
- What about confidentiality?
The employer may be concerned about the support person not being an employee of the company or that discussion in the workplace of matters raised will be disruptive to the business.
It is open to the employer to explain to the support person that the meeting and all matters raised are strictly confidential and not to be disclosed to any person. If the support person is an employee, they should be advised that a breach of confidentiality would give rise to a breach of their employment terms. If the support person is not an employee, the employer may require them to sign a confidentiality agreement under which they agree to be bound by obligations of confidentiality.
- Should a support person be offered?
Although the Fair Work Act does not require employers to notify employees that they can have a support person present, it is always good practice to raise the option.
- What if the support person disrupts the meeting?
Finally, the presence of the support person should not stand in the way of the employer’s ability to hold a meeting with their employee. If the support person does not comply with the employer’s reasonable requirements and is being disruptive, you are entitled to ask them to leave.