Union representative as a support person

Hi Bare Bones Consulting, can a union representative be a support person in a disciplinary meeting?

Short answer? Yes.  For those with extra time in lockdown looking for ways to kill time; read on.

We’ve written before on the role of a support person. A support person is someone an employee can nominate to attend a meeting (usually called by the employer to discuss concerns around performance or conduct) with them to provide emotional support and reassurance.

A support person can be a be a work colleague, friend, family member, industrial representative (aka union representative) or lawyer…although are circumstances where it may not be appropriate for a particular person to take on this role.

An industrial representative may represent their members in accordance with the industrial legislation and their union rules. This may involve asking clarifying questions, and, on occasion, advocating to ensure procedural fairness is afforded to the member. It is not the role of the industrial representative to provide direct evidence or defend an employee in respect to allegations relating to work performance or conduct; with these parameters being clarified by the Full Bench of the Fair Work Commission in Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613.

It’s crucial for any employer to recognise that it is unlawful to take adverse action against an employee because that employee sought to be sought to be represented by their union. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes. Need more info on this? Check out general protections rights here.

This does not mean that an employer is not able to discipline or dismiss an employee when their union representative is in the room but rather, that the employer can demonstrate that when the decision to take any adverse action was made, the employee’s desire to be represented by their union was not a reason for that decision.

Holding meetings with employees about a decline in their performance or conduct is rarely enjoyable. These meetings are however a necessary part of being an employer and like, many other experiences, the more you do them, the better you get. In saying that, knowing the right way to run performance meetings from the outset is key to gaining both confidence and competence in this key management skill. Our suggestion? Invest a little time and money in learning from the experts. We just happen to know one.