While employees have the right to have a support person present during a disciplinary meeting, there are limitations to what role that support person can play during the meeting.
The support person cannot advocate on behalf of the employee, answer questions on behalf of the employee or provide explanations or make submissions for the employee, says employment law specialists Workplace Law.
If the support person is “overtly interventionist”, employers may consider suspending the meeting.
“A support person can only do as the name indicates – “support” the employee,” Workplace Law wrote in a recent blog post.
“They can take notes at the meeting and generally assist in discussions (this would be particularly applicable for employees who are from non-English speaking backgrounds).”
One of the key criteria that the Fair Work Commission
(FWC) will consider when deciding whether the termination of an employee’s employment was “harsh, unjust or unreasonable” is if there was “any unreasonable refusal by the employer to allow the person to have a support person present” (as per section 387 of the Fair Work Act 2009 (Cth) (FW Act)).
Therefore, employers are under no obligation to provide a support person for their employees, nor is it obligatory for a support person to be present at disciplinary meetings.
However, employers must not unreasonably refuse an employee wishing to have a support person present.
Best practice would recommend employers to advise their employee prior to the meeting that they have the option of bringing a support person.
And if the employee decides to bring someone, employers can ask them to identify who that person is prior to the meeting, and state if they are a union representative or a lawyer.
An employee can choose whoever they want as their support person and common support persons are usually a union representative / delegate, family member or friend, or another employee.
Frequently, employees will require a lawyer to be present as their support person, however the legal representative can only perform a limited role and is not permitted to advocate on behalf of the employee.
Workplace Law’s tips for employers
Where an employee’s employment is at risk of termination, best practice is to encourage the employee to bring a support person to the disciplinary meeting. Where possible, accommodate an employee’s request to reschedule the meeting to allow their support person to be present.
At commencement of the meeting, employers may wish to clarify to all in attendance of what the support person can and cannot do. Where a support person is “overtly interventionist”, employers should consider suspending the meeting.
Ensuring that an employee is afforded procedural fairness, including not refusing a support person in the disciplinary process will assist employers to mitigate claims that any termination of employment was “harsh, unjust or unreasonable".
Disciplinary meetings can be a challenging experience for HR professionals, particularly when your employee brings a support person who isn’t shy about voicing their opinion during the meeting.