Your employee is facing dismissal – do they need a support person? Yes. We always recommend that employers invite employees to have someone support them at any disciplinary meetings that may lead to dismissal.
Is a support person mandatory in dismissal procedures?
Offering a support person is not just recommended because it’s a nice thing to do. It’s the law – Section 387 of the Fair Work Act to be precise. When considering an unfair dismissal claim, the Fair Work Commission must consider:
‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’.
Strictly speaking, the onus is on the employee to request a support person to come to a disciplinary meeting. It is not up to the employer to provide one. But the process must show ‘procedural fairness”.
The following process would not be fair:
- the employer refuses to allow a support person to be present, and
- the meeting leads to the dismissal of an employee.
Then the dismissal may be deemed to be ‘harsh, unjust or unreasonable’. This could result in an unfair dismissal claim.
Who can be a support person?
The employee can choose anyone to support them at a disciplinary meeting:
- a union representative
- a family member
- a friend
- another employee in your business.
When can you refuse the chosen support person?
You can reasonably refuse your employee’s chosen support person in certain circumstances. Some examples of when the person chosen could be inappropriate are:
- If the support person has been involved in the matters you are discussing
- If the support person is more senior than the person holding the meeting
- If the support person could potentially be disruptive to the meeting, like an ex-employee.
It is good practice, and perfectly acceptable, to request the employee tell you in advance who the support person is. This is because the employer may need to consider the appropriateness if the support person is another employee.
If you do refuse a certain support person, then let the employee know that they can choose someone else. Otherwise, this may be contested if the employee is dismissed.
What is the role of a support person?
The role of a support person is there as emotional support for your employee. It is not their role to advocate, get involved, or talk on behalf of the employee in the meeting.
HR Gurus hot tips
When holding meetings that may lead to termination of an employee:
- Let your employee know that they may bring a support person to the meeting. Although not strictly required, we recommend putting this in writing as best practice.
- Don’t refuse your employee’s request to have a support person present. If you refuse a particular support person, explain your reasons. And offer the chance to bring a different support person.
- At the start of the meeting, explain the role of the support person in the meeting. Explain this to both the employee and the support person.
- If the support person is overstepping their role, stop the meeting. Remind them of the scope of their role as a support person.
- Allow the support person to ‘assist’ the employee. But do not allow the support person to act as an advocate or talk on the employee’s behalf.
For help with performance management, investigations or disciplinary processes, contact HR Gurus on 1300 959 560.
Written by resident HR Guru, Jessy Warn.