What is the role of a support person in a disciplinary meeting in New Zealand?

In New Zealand, the right for an employee to have a support person in a range of different settings is well established and important to be aware of.

Formal meetings, like a disciplinary meeting or similar process, can be intimidating for employees. Having a support person, whether that be a family member, friend or lawyer, can help employees through that process.

Having a support person in a disciplinary meeting is often advantageous for an employer as well. This article will set out:

• what a support person is;
• their role in employment meetings; and 
• what employers should remember about supporting people and the disciplinary process.

What is a Support Person?

A support person is someone an employee chooses to bring to a meeting or other event at work. Anyone can be a support person, but common choices include a:

• representative from the employee’s union;
• lawyer or employment representative;
• friend or family member; or
• trusted workmate (though often bringing someone from outside the workplace is preferable).

Bringing a support person along means the person in question can:

• give support;
• help with understanding of the issues; and
• take notes so that the employee can focus on the meeting.

Employment meetings or processes can be extremely stressful for employees and having someone there to support them can make a big difference to the employee. They do not necessarily need to bring professional skills such as legal knowledge. 

Sometimes, what an employee needs is emotional support.

The Difference Between a Support Person and a Representative

While the terms “support person” and “representative” are often used interchangeably in employment contexts, there can be subtle differences worth noting. 

A support person’s primary role is to provide emotional and practical support to the employee during meetings or processes. They may speak on the employee’s behalf and actively participate, but their focus is on helping the employee through what can be a stressful situation.

A representative, on the other hand, typically implies someone with specific expertise or authority to act on the employee’s behalf, such as: 

• a union representative; or 
• an employment lawyer. 

Representatives often take a more active role in negotiations, presenting arguments and advocating for the employee’s position. 

In practice, however, New Zealand employment law does not strictly differentiate between these roles, and both support persons and representatives have the right to actively participate in employment meetings. What matters most is that the employee has someone present who can assist them effectively, regardless of the label used.

What Employers Should Remember About Support People

Support people can be aids to the business, not just the employee, even though they appear to support one side. This is because a productive, reasonable discussion is always preferable to one where emotions are high.

Having a support person is often helpful and conducive to having a better discussion.

There are a number of things to remember regarding the process by which an employee can bring a support person, such as the following:

1. Allow a Support Person
Never tell the employee they cannot bring a support person, especially when the law requires you to give them that option. When the law specifically does not make that requirement, you still have a good-faith obligation to your employees.

2. Provide Time
Give the employee enough time to find the right support person. You do not just need to tell your employee that they are entitled to a support person, but also make sure that they are told that it is in their interests to obtain a competent representative. 

For example, you should not tell an employee late Friday afternoon that there will be a disciplinary meeting first thing Monday morning and that they are entitled to a support person at that meeting. Realistically, in this situation, you would be limiting who the employee can have as their support person, so you should give the employee more time.

3. Put it in Writing
Record that the employee has been provided the opportunity to have a support person present at the meeting in question. Where your employee chooses not to have a support person present, you should make a note of that fact and also seek their reason. This reason should also be included in your interview notes.

4. Support Person Participation
The support person is allowed to actively participate in the meeting on the employee’s behalf. The support person is not present just to provide a witness for the employee and can have a speaking role. Here, the support person needs to be able to:

• speak on behalf of the employee;
• intervene in the process where required or asked; and
• give explanations where necessary.

Key Takeaways

The role of a support person in a disciplinary meeting depends on the circumstances and the skills of the support person. Their general job is to help an employee through an employment process or a meeting. Employment processes can often be stressful and difficult for employees. As such, employers have an obligation to ensure that those employees get the support they need. This involves:

• telling the employee they can bring a support person;
• giving them sufficient time to find one; and
• giving that person the chance to be active and helpful in a meeting.

Louise Miao is an Associate in LegalVision’s Employment team.