Australia: Support persons and disciplinary meetings - top questions by employers answered

Last Updated: 13 October 2017
Article by Adele Garnett and Andrew Tobin

One factor the Fair Work Commission takes into account when deciding if a dismissal was unfair is whether the employer unreasonably refused to allow the former employee to have a support person present to assist at any discussions relating to dismissal. 1

How this works in reality can be difficult for employers. This article answers the top questions we deal with in relation to the participation of support persons in important (and often stressful) employment related discussions. This includes; do employers have to offer a support person; can employers refuse a particular support person, and; how to manage an "overly enthusiastic" or obstructive support person.

Do employers have an obligation to offer a support person to an employee?

There is no positive obligation under the Fair Work Act 2009 on employers to offer an employee a support person during discussions, whether or not these concern, or might lead to, dismissal. 2 The obligation on employers is to not unreasonably refuse a request made by an employee, to be assisted by a support person at any discussions relating to dismissal.

If there is no positive obligation, should employers offer them to employees?

There are three reasons why an employer should offer a support person for disciplinary meetings even though it is not specifically required.

Firstly, it is generally seen as fair and best practice to provide employees with the opportunity to have external support in important employment-related discussions. These discussions can be very stressful for employees and a support person can actually be of assistance, particularly where an employee is, or may become, upset.

Secondly, in the unfair dismissal case of Jimenez v Platypus Pty Limited 3, the employer was heavily criticised on this point even though the employee had not requested a support person. The circumstances were that the employee was not informed of the purpose of the meeting – set up by the employer to discuss allegations of serious misconduct – and in fact, was led to believe that the meeting was to give the employee good news.

The Commission held that as the employee was not aware of the reason for the meeting, he did not request a support person – when he might have done had he been able to properly appreciate the seriousness of the situation. By actually offering a support person, an employer avoids being questioned in relation to support persons in any unfair dismissal application.

Thirdly, offering a support person provides the employer with an opportunity to inform the employee who will be acceptable as a support person – allowing an employer to more cleanly refuse any unsuitable person – which leads to the next question we are frequently asked.

Can an employer refuse a particular support person?

In short, the answer is yes. The recent unfair dismissal case of Trembath v RACV Cape Schanck Resort 4 provides some guidance as to when it would be considered "reasonable" to do so.

In that case, Ms Trembath asked a co-worker to be her support person in a meeting to discuss allegations of serious misconduct against her. However, the employer refused to allow Ms Trembath's nominated support person to be involved in the meeting on the basis that the co-worker, having been involved in the factual circumstances, would themselves have an interest in the meeting, resulting in a conflict of interest.

Commissioner Wilson agreed that this was a "reasonable" refusal by the employer to allow the employee her preferred support person.

At the time of the refusal, the employer offered to either delay the meeting, or stated that Ms Trembath could involve a Mr Roche as her support person – Ms Trembath agreed to have Mr Roche.

Interestingly, Commissioner Wilson expressed more serious concerns over the choice of Mr Roche as a support person, because Mr Roche was a representative of the employer's management and, subsequently, significantly involved in the dismissal process. The Commissioner commented, 'By no means could he be regarded as someone who would give Ms Trembath "support" in any of the capacities implied by that word; whether as an advisor, counsellor or representative'.

While Commissioner Wilson did not make a finding that the employer unreasonably refused Ms Trembath a support person on this basis, two points can be taken from this case:

  • It is not unreasonable to restrict co-workers from being support persons if they will or might have any involvement in the matter at hand (e.g. as a witness in an investigation or formal hearing of any kind). In that case, there is a risk that any evidence they might later give will be seen to have been compromised by things they have seen and heard in relevant meetings.
  • It is rarely (if ever) a good idea to have management involved as a support person. This is because they are unlikely to actually provide the support an employee needs in these situations on account of a hopeless conflict between the role a support person is supposed to perform and their management role, as representative of the employer.

Regardless, in many situations it is best (and not unreasonable) not to have co-workers involved as support persons, simply from a workplace confidentiality point of view.

So how should employers manage an employee's support person choice? Ideally, the employee should be informed of any parameters surrounding their choice of a support person upfront (for example, not someone who might be a witness, not a co-worker) to avoid any delays or controversy. The employee should also be requested to advise, in advance, who their support person will be so that any issues can be addressed prior to the meeting. If an inappropriate support person is presented, the employee should be given a reasonable opportunity to find an alternative.

How to manage an "overly enthusiastic" or obstructive support person

The Fair Work Commission cases do not provide a great deal of guidance on the role of a support person, other than to say that they are "not an advocate". 5 Generally, it is reasonable to expect a support person to:

  • take notes;
  • assist with clarifying the process, questions asked, or responses given; and
  • quietly prompt or give advice to the employee, including requesting a break if needed;

but only to the extent that their input doesn't overly disrupt the meeting.

As a first step to managing their presence, a support person should be acknowledged and they should be reminded that their role is as a support person, not as an advocate. It is also important to remind them of the need for confidentiality.

Some recommendations for managing an overly enthusiastic support person include:

  • If at any point the support person appears to be advocating, or is becoming argumentative or obstructive, they should be reminded that they are "here for support only, and not to be an advocate". The employee and their support person could also be offered a short break (e.g. about 5-10 minutes) to confer.
  • If the support person starts answering for the employee (beyond what is helpful/clarifying), another strategy might be to say, "I need [the employee] to answer this".
  • If they become too obstructive, the support person should be warned that if they continue to advocate, they will be asked to leave.
  • As a last resort, if the behaviour continues, the support person should be asked to leave the meeting on the basis that they are being obstructive, and not carrying out the role of the support person. The meeting can then continue with the employee (perhaps after a short break to allow the employee to "regroup" if required). If the employee objects to continuing, it will depend on the circumstances as to how this should be handled – with a focus on what is fair and reasonable. Possibilities include giving the employee an opportunity to locate an alternative support person; pressing on with the meeting regardless (without a support person); or, giving the employee the option to respond to allegations in writing.

Unless a support person is being obstructive or difficult, it is generally advisable to allow some leeway on "advocating" during disciplinary meetings. It will often be easier to communicate with a reasonable advocate than with a difficult employee. In the vast majority of situations, having a support person involved does not present any additional issues for the employer to manage and, as noted above, can actually assist.

Footnotes

1 Section 387(d) Fair Work Act 2009.

2 See the Explanatory Memorandum to the Fair Work Act 2009, paragraph 1542.

3 [2016] FWC 5141.

4 [2017] FWC 4727.

5 Victorian Association for the Teaching of English Inc v de Laps [2014] FWCFB 613.

© HopgoodGanim Lawyers

Award-winning law firm HopgoodGanim offers commercially-focused advice, coupled with reliable and responsive service, to clients throughout Australia and across international borders.

2015 AFR Beaton Client Choice Awards:
Best Law Firm (revenue $50m - $200m)
Best Professional Services Firm (revenue $50m - $200m)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Adele Garnett
Andrew Tobin
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.