Employers usually know that they have to allow an employee to
have a support person accompany them whilst they are being
counselled. However, what is less clear is the role of that support
person in the meeting.
Last week, the Full Bench handed down a decision that clarified
what the role of the support person is. Simply put they are not
there to act as an advocate. The role of support person is to take
notes on the employee's behalf and to act as a sounding board
for the employee, but their role is not to extend any further than
This is different where there is a union representative
involved. A union representative, is able to intercede on behalf of
employees, however this must be done appropriately and
If a support person insists on being an advocate, you are
entitled to curtail the meeting, explain the process and give them
another opportunity. If an employee lacks the ability to properly
communicate through a meeting for example they may have language or
disability issues, then it would be seen as fairer to allow someone
to advocate on their behalf.
In the case concerned, the Full Bench decided that an Executive
Director who was undergoing disciplinary counselling was entitled
to have a support person but not entitled to have an advocate on
their behalf in their meeting.
We always recommend that employers in the letter inviting the
employee to the final disciplinary meeting have a statement to the
"Of course, you are entitled
to bring a support person with you to the meeting."
Then you have clear evidence of your compliance with that
practice. If an employee chooses not to bring one then proceed
regardless. However if an employee wants to delay a meeting by a
day or so to have one present, it can be risky to refuse such a
request and press on. However, the Full Bench went on to say that a
request by an employee to delay the meeting for four days in order
to have someone available was unreasonable and the employer did not
have to agree to it.
In this month's Update, we focus on two decisions of the Federal Circuit Court in which the court made significant penalty orders in response to an employer's adverse action in breach of the Fair Work Act 2009 (Cth).
These are questions that should be covered to produce some of the best employment contracts and workplace policies.
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