Unfortunately in our roles as employers, there will likely come a time when we have to deal with some sort of performance management, disciplinary issue, or internal investigation. These situations are never pleasant, often tense, and incredibly stressful. In addition to managing your people, it is important to understand your legal requirements and avoid potentially blowing up the situation. One area in which there is often confusion is the rights of the employee to representation and support.
Under the Fair Work Act 2009 (Section 387[1] ), an employer may not unreasonably refuse for an employee to have a support person present during a disciplinary meeting or workplace investigation. The onus in this case is on the employee to choose whether or not they wish to bring along a support person – the employer is under no obligation to ensure one is provided. However, should the employee choose to do so, the employer must not unreasonably refuse the request – which may include rescheduling the meeting to make reasonable allowance for the chosen support person to attend. As best practice the employer can request that the employee advise them in advance of who their support person is, as it may often be another employee and consideration of this fact may need to be taken, for example if the interview is regarding a confidential investigation or to make allowance for shifts.
If the support person is refused, and the proceedings subsequently lead to a dismissal, there could be a basis for an unfair dismissal claim on the grounds of ‘harsh, unjust, or unreasonable’ termination.
There are no guidelines excluding any particular person from being a support person – however, what has been clarified is the meaning of the role. The support person provides emotional support and may assist in discussions (for example where the employee does not speak English well), take notes, and provide advice. But they should not speak for or on behalf of the employee. Doing so crosses the line from support person into advocate, and as per a 2014 ruling [2] [3] an employer is under no obligation to allow an employee to bring an advocate to a disciplinary meeting. The support person should not be ‘overtly interventionist[4] ’, and if the interviewer or employer finds the support person to be getting overly involved in the process and beginning to advocate for the employee, they can suspend the meeting until either the role of the support person is clarified, or an alternative support person can be selected. The interviewer or employer may also choose to allow periodic breaks during the proceedings in order for the support person to provide support and advice to the employee.
It is advisable to clearly communicate [5] the role of the support person at the beginning of the meeting so that both the employee and the support person understand the permissible scope of their involvement.
Section 387 does relate specifically to unfair dismissal, so if the aim of the performance management process is reconciliation or performance improvement, it may appear that a support person is not necessary – however, if there is a possibility that the performance management process may lead to dismissal if the outcome is not positive, the opportunity to bring along a support person should still be offered as best practice.
This is a summary only. Pinnacle People advises that you seek legal advice if you are uncertain about your responsibilities or rights.
[1]http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s387.html
[2]http://www.claytonutz.com/publications/news/201404/10/support_person_can_support_but_not_advocate.page
[3]http://workplaceinfo.com.au/termination/unfair-dismissal/analysis/fwc-clarifies-the-role-of-a-support-person#.VzPoSIR95D8
[4]http://community.hrdaily.com.au/profiles/blogs/i-ll-be-there-for-you-the-support-person-in-the-disciplinary
[5]http://workplaceconflictresolution.com.au/role-support-person-disciplinary-conversation/