Australia: Do not overlook the support person obligation: three key steps

Last Updated: 20 June 2018
Article by Brian Powles

Employers generally know that their must be a valid reason for dismissal, they must notify the employee of these reasons; provide opportunities for the employee to respond; and where the dismissal is performance based, provide warnings in most instances. However, employers often fail to consider the employee's right to request a support person. This is a mistake.

When determining whether a dismissal was harsh, unjust or unreasonable, the Commission will take into account whether or not the employer unreasonably refused the employee the opportunity to have a support person present at the meeting. This is more than just simple courtesy, or consideration for an employees well-being. An unreasonable refusal may, depending on the factual circumstances of the case, render a dismissal harsh, unjust or unfair. It is therefore crucial that employers understand their rights and obligations as to allowing for an employee to access a support person.

What is a support person and why are they important?

A support person is not an advocate. They do not attend disciplinary, investigative, or termination meetings to answer questions on behalf of the employee or to otherwise act as a representative of the employee. This means that employees do not have a right to request lawyers, union delegates, and union organisers to act in a representative capacity.

So, what does a support person do? To put it simply, they support. The traditional model of a disciplinary meeting will involve the employee on one side and, on the other side, supervisors, human resource managers, and, in some instances, company owners. This type of setting may create a power imbalance between the two 'sides'. A support person can provide emotional and psychological support to an employee in what can be a very stressful situation. The protection of an employee's right to request a support person therefore goes some way to correcting this imbalance.

Aside from being a source of emotional support, a support person may also have small role in assisting with the meeting. This typically manifests in the taking of notes in the meeting but can extend to acting as an intermediary for the employee to assist in the procedure of the meeting – for example telling the employer that the employee is too emotionally distraught to continue and requesting a break.

Having a support person in your workplace

The Fair Work Act does not require employers to give an employee a support person before going into a meeting. The wording of section 387(d) makes it clear that it is the unreasonable refusal of an employee's request for a support person that may cause the employer strife, not the failure to have a support person present in the meeting. The question inevitably becomes, how do I best protect the business?

1. Advise employees of their right to have a support person present

In Simson Joy Thomas Charivupurayidam v Lapa Armadale Pty Ltd T/A Lapa Brazilian Barbecue [2017] FWC 1503, the employee was found to have been unfairly dismissed. The Commission's comments on the support person provision are nonetheless illuminating. The employee argued that he was not aware that a meeting to be held between himself and the company would relate to his dismissal and that, as a result, he did not request a support person to be present. The employee nonetheless brought a support person into that meeting albeit without informing the company. The Commission found that the email sent to him by his employer referred to 'very serious allegations', and that, in the circumstances he should have known that the meeting could involve disciplinary consequences and that the presence of a support person would be in his interests.

These comments support the position that an employer does not have to explicitly state that an employee should have a support person present for the purposes of a disciplinary meeting. The very mention of possible consequences of that meeting, or the mention of serious allegations is sufficient. But even this is not necessary. It is nonetheless best practice to mention to employees before a meeting that they may have a support person present. Should an employee attend the disciplinary or termination meeting without a support person present and then commence unfair dismissal proceedings, they must clear a very high evidentiary hurdle to show that the employer unreasonably refused the presence of a support person.

2. Reiterate the purpose of a support person

Repeat to the employee at the start of the meeting that the support person is only there to support the employee in the meeting. Make it clear to the employee that the support person is not to interject to answer questions; is not to advocate; is not to speak on the employee's behalf; and is not to otherwise participate in the meeting in any manner other than to provide emotional and psychological support to the employee.

If the support person begins to do anything contrary to the instructions you have given, do not be afraid to halt the meeting and remind the support person of what they can, and cannot do. Remember that the meeting is between you and the employee, and not you and the support person. Do not be afraid to cease the meeting and remove the support person if they continue to interject despite having been provided an initial explanation and subsequent reminders of their obligations. Ensure that you take notes of when you ceased the meeting and the reasons why. This will protect your business should the employee argue that it was unreasonable to refuse the involvement of that support person. Continue the meeting after allowing the employee to ask for another support person. If there is no other support person available, attempt to reschedule the meeting so that the employee can organise for an alternative person to be present.

3. Require the support person to sign a confidentiality agreement

The confidentiality of disciplinary and termination meetings is of the utmost importance in ensuring that the business of the company is not disrupted and for ensuring general employee morale. You should therefore inform the parties to the meeting that everything discussed is to be kept confidential. But it is also good practice to get the support person and employee to sign a confidentiality agreement. The agreement should make it clear that matters relating to the meeting, and to the existence of the agreement itself, are to be kept confidential with the exception of disclosure under law and for the purposes of obtaining legal advice.

Conclusion

The Commission may look upon an employer's refusal to allow for an employee to have a support person present with as much seriousness as an employer's refusal to give reasons for a dismissal. They are viewed as falling under the same category of harshness. Employers should be proactive and ensure that employees are:

  • Aware of their right to request a support person.
  • Aware of what the support person can and cannot do
  • Aware that the employer can refuse to allow the support person further involvement in the meeting if they exceed the outlined scope of their role

Employers should also make sure that they, as a matter of best practice

  • Do not, at the outset, refuse the employee's request for a support person
  • Only refuse further involvement of the support person if that person starts to act as an advocate or representative

Following these simple steps will go a long way to ensuring that there is one less thing that you must worry about when beginning the termination process.

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.

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Brian Powles
 
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