18 July 2023
Having a support person present in conversations which have the potential to have adverse implications for the employee’s ongoing employment, such as disciplinary or performance processes, can make a significant difference for an employee. A support person is an individual who accompanies an employee to meetings with their employer, providing emotional support and assistance throughout the process. While there is no strict guideline as to who can be a support person, employers should carefully consider a number of factors before accepting or refusing an employee's choice. This article explores the importance of the appropriateness of the support person, reasonable refusal of a proposed support person, the role of a support person, and best practices for employers.
There is no set criteria under the Fair Work Act 2009 (FW Act) for selecting a support person. However, employers must take into account any relevant provisions in modern awards, enterprise agreements, or employment contracts. Typically, a support person can be a family member, friend, union official or delegate, work colleague, lawyer, or workplace relations adviser. It is essential to choose someone who can provide unbiased support and effectively fulfil their role during the process.
Employers have the right to refuse a support person in certain circumstances. For example, if the support person has a conflict of interest, such as being involved in the relevant performance or disciplinary process (e.g. as a witness), is the employee’s manager, or holds a superior position within the organisation to the person conducting the performance or disciplinary process, their involvement may be considered unreasonable. Additionally, if the support person is a former employee who has a history of disruption or raising concerns about management, the employer may have grounds for refusal.
It is common for employees to select work colleagues as support persons in disciplinary or performance processes. However, employers may reasonably refuse such requests if the chosen colleague is directly involved in the process or if their presence could strain workplace relationships within a team. For example, in Chandler v Bed Bath N' Table  FWC 3706 (Chandler), the employer refused an employee's request to bring a work colleague as a support person because the company policy prohibited employees from acting in that capacity. Although in Chandler, reference to the company’s policy wasn’t the reason that was provided to the employee when refusing the request, at the unfair dismissal hearing Commissioner Lee accepted the employer’s submission that the policy was correct.
A support person's role extends beyond providing merely emotional support. As stated in section 387(d) of the FW Act, a support person is present to ‘assist’ during discussions relating to dismissal. The specific nature of assistance may vary depending on the circumstances of each case. However, it generally includes tasks such as reviewing relevant documentation before the meeting, helping the employee understand questions asked, taking notes, acting as a sounding board, ensuring fairness in the treatment of the employee, suggesting breaks, and facilitating discussions or obtaining advice from an advocate during breaks in the process. The support person may not act as advocate for the employee during the process.
To ensure a smooth process and avoid misunderstandings, employers should clearly outline the role of a support person in their misconduct, disputes, and performance management policies. Additionally, employers should provide an overview of the support person's role to the employee and any attending work colleagues beforehand. It is also advisable for employers to require support persons to sign a confidentiality undertaking to safeguard sensitive information. Employees acting as support persons will be subject to duties under their employment contracts, including in respect of any lawful and reasonable directions that have been issued, as well as relevant confidentiality obligations. As a result, employee support persons who breach confidentiality obligations (including directions to that effect) may also be subject to disciplinary consequences. Throughout the meeting, employers should remind the parties and clarify the support person's role as necessary.
Although there is no positive duty to do so under the FW Act, where termination is a possible outcome, employers committed to best practices should notify employees of their right to bring a support person to performance management and disciplinary meetings. This notification can be included in relevant policies or communicated directly to employees. Employers should also establish a process requiring employees to provide advance notice of their intended support person. This allows employers to make logistical arrangements, assess the choice of support person, communicate the support person's role, and obtain any necessary undertakings in respect of confidentiality.
Requests to postpone a disciplinary or performance meeting due to the unavailability of a support person should generally be accommodated. However, there may be circumstances where it is reasonable to refuse such requests. For example, if the employee and their support person were given ample notice of the meeting and the postponement request is provided at the last-minute without a valid reason, the employer may refuse. Similarly, if the meeting has already been postponed due to the unavailability of the chosen support person, and there is no acceptable mitigating reason for further postponement, the request can be declined. In Chandler, in addition to reasonably refusing the employee’s choice of support person, the employer also refused to delay the meeting so that the employee could arrange an alternate support person. Commissioner Lee, in this regard, held that it was unreasonable of the employer to not delay the disciplinary meeting and allow the employee to arrange another support person, particularly in circumstances where she faced dismissal.
Selecting the right support person is crucial for employees facing disciplinary or performance processes in the workplace. Employers should carefully consider the terms of relevant agreements or contracts before accepting or refusing a support person. Work colleagues can often provide valuable support, but employers should assess the potential impact on workplace relationships and whether the support person choice may prejudice the process that is being conducted. Once a support person is chosen, it is essential to communicate their role clearly and maintain confidentiality. By adhering to best practices, employers can create a fair and supportive environment for their employees during challenging times.
If you have any questions regarding support persons in the workplace, please get in touch with a member of the Workplace Relations and Safety team below.
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.