We always recommend that employers offer their employees to have a support person attend any meetings that may lead to dismissal.
Offering a support person is not just recommended because it’s a nice thing to do. It’s the law. Under Section 387 of the Fair Work Act, one factor the Fair Work Commission must take into account in determining whether a dismissal is unfair is ‘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, it is no up to the employer to provide one. If 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’ resulting in an unfair dismissal as the process would be lacking in procedural fairness.
Who can be a Support Person?
Any person that an employee chooses could be their support person, including union representatives, family, friend or even an employee in your business. However, under certain circumstances it might be reasonable for you to refuse the specific person that your employee has chosen as their support person. Some examples of when the support 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 be potentially disruptive to the meeting, like an ex-employee
It is good practice and perfectly acceptable to request that the employee advise in advance who the support person is, because consideration may need to be made if it’s another employee.
If you do refuse a certain support person, then let the employee know that they can choose someone else as this may be contested if the employee is dismissed.
What is the role of a Support Person?
The role of a support person is to be emotional support for your employee. It is not their role to advocate, participate 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 step in writing as best practice);
- not refuse any employee’s request to have a support person present (if you do for valid reasons, then explain your reasons and offer the chance to bring a different support person);
- at the start of the meeting, explain to both the employee and their support person what the support person’s role will be in the meeting. If the support person is overstepping their role, then stop the meeting to 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.
If you need assistance in relation to any performance management, investigations or disciplinary processes, please don’t hesitate to give the HR Gurus team a call where one of our qualified HR experts would be happy to help.
Written by resident HR Guru, Jessy Warn.