While a support person can ‘assist’ an employee during a performance review, they can not advocate or speak on their behalf to their employer. Until now, this role has been defined in theory, but occasionally misunderstood in practice.
Recently, a senior employee was found by the Fair Work Commission to have been dismissed unfairly over a range of process issues, including her employer’s denial of a support person who could advocate on her behalf.
Upon review last month, a Full Bench of the Commission overturned the decision, referencing “support persons” in section 387 of the Act and stating: “We do not think a refusal by [the employer] to allow [the employee] an advocate at the meeting can be regarded as constituting an element of procedural unfairness.”
“The key word here is ‘assistance’. Through the courts, we hear the term ‘reasonable’ being used and it’s difficult to draw a line under what reasonable behaviour constitutes, until it’s clarified by a case,” said Anne-Marie Orrock, managing director of Corporate Canary HR Consulting.
“The same applies here with the word ‘assistance’. The commission has reinforced where the line is, and essentially it means that a support person can take notes and be a soundboard for the employee, but they are not liaising with the employer.”
Key takeaways for HR:
In meetings that relate to potential employment termination, employers should:
- Notify employees that they may bring a support person as a matter of good practice.
- Ask the employee if they’re bringing a support person and seek their details.
- Upon meeting, clearly indicate to the support person what their role is.
- Allow the support person to ‘assist’ the employee, but do not allow them to talk on the employee’s behalf.
- Be aware that if your employee has brought a union rep as their support person, the rules are different. “They’ve got more rights at the table and they’re allowed to engage with the employer,” Orrock said.
The results of a recent unfair dismissal case have prompted the Fair Work Commission to clarify precisely how much assistance a Support Person can provide to an employee during meetings relating to dismissals. The implications for HR are subtle, but important.