Role of a support person

While the principle of procedural fairness affords an employee the right to a support person in discussions that may be viewed as adverse to the employee’s interests, the offering of a support person by the employer is more best practice than legal requirement.

Section 387 of the Fair Work Act contains the criteria which the Fair Work Commission must take into account in determining whether a dismissal is unfair. One of those matters is ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’.

One interpretation of this sentence is that the onus is on the employee to choose whether or not they wish to bring along a support person – the employer is under no obligation to ensure one is provided. If the aim of the discussion is reconciliation or performance improvement, it may appear that a support person is not necessary. If however, there is a possibility that the performance management process may lead to dismissal if the outcome is not positive, the opportunity to bring along a support person should still be offered as best practice.

It’s relevant to recognise that if a support person is refused, and the proceedings subsequently lead to a dismissal, there could be a basis for an unfair dismissal claim on the grounds of ‘harsh, unjust, or unreasonable’ termination.

Some key takeaways on this topic:

• It is good practice to notify your employee that they may bring a support person, even though you are not necessarily required to do this
• You should not unreasonably refuse the presence of a support person for your employee
• Communicate the role of a support person directly to them and the employee they are supporting, including the directive that all matters discussed in the meeting are confidential and it is therefore inappropriate for anyone present at the meeting to discuss these matters with any other persons, or reveal the information in any other manner.

One final reminder….the obligation to allow a support person or representative in disciplinary matters may arise out of an employment contract, award, agreement or policy so make sure you dot your i’s and cross your t’s by doing your homework before inviting an employee to a performance or disciplinary discussion.

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