You know the drill. You direct an employee to attend a
performance or disciplinary meeting, and tell them they're
welcome to bring a support person. Next thing, the employee refuses
to attend at the directed time and seeks to reschedule based on
their lawyer's availability. What can you do next?
As we know, "any unreasonable refusal by an employer to
allow the 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 in any unfair dismissal
Importantly, an employer does not have an absolute obligation to
ensure the employee has a support person present. Rather,
unfairness may arise from unreasonable refusal.
In Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas
Link , the employer scheduled two meetings to discuss
allegations against an employee. The employee's representative
requested that those meetings be rescheduled. The employer
The FWC found that the employer had provided adequate notice of
the meetings, and the employee's requests to reschedule had
been made at relatively short notice. Therefore, the refusal was
Given the role of a support person, the fact that a lawyer is
not able to attend is no basis for rescheduling. In Victorian
Association for the Teaching of English Inc v Debra de Laps ,
the FWC clarified the role of a support person: to support, not act
as an 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 present the
employee's case, or to respond to issues raised by the employer
on the employee's behalf.
Although the Fair Work Act doesn't require
employers to notify employees that they can have a support person
present, it's always good practice to raise the option upfront.
And remember, support people are there to support, so their
presence at the meeting should not get in the way of an
employer's ability to hold a meeting with their employee. If
the support person is being disruptive, you're entitled to ask
them to leave.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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