The Role of a Support Person in Disciplinary Matters

From Leigh’s Corner #46

Disciplinary meetings between employers and employees are often difficult and tense processes and many employers are not trained in dealing with difficult situations involving workplace disputes, breaches of policies and procedures and conduct that requires disciplinary action up to and including dismissal.

There are some basic steps that can be followed which may alleviate some of this tension and assist in dealing with the disciplinary matter successfully without jeopardising the employer’s position and being exposed to claims of unfair dismissal or adverse action.

One of these steps involves the ability of an employee to bring a support person to a disciplinary meeting.

Employers should be aware that under the provisions of Section 387 of the Fair Work Act the Commission will take into account when determining if an employee’s dismissal is unfair and whether the employer unreasonably refused for the employee to have a support person present to assist with the
process and meeting/s.

The unreasonable refusal to allow an employee to have a support person present may therefore adversely affect the employer’s case if an unfair dismissal claim proceeds to the Fair Work Commission.

For businesses with less than 15 employees covered by the Small Business Dismissal Code, a support person prohibits a Lawyer from acting in a professional capacity.

These last two points are generally where the confusion begins with employers often making decisions that can adversely affect the outcomes of disciplinary processes.

The following steps are general advice to assist employers with this issue and to provide some guidance so that the best possible outcome can be achieved for all parties:

1. When you require a meeting with an employee to discuss a disciplinary matter it is good general practice to advise them that they
   may bring a support person to this meeting event though you are not required to provide this advice.
2. Unless there is a reasonable and defensible reason for refusing the support person chosen by the employee, it is good practice to not refuse the presence of a support person.
3. The support person should not be a witness or otherwise involved in an investigation or have any personal interest in the proceedings or process.
4. A reasonable reason under these circumstances may be where a conflict of interest or a health and safety issue exists or where an ex-employee
   is proposed as the support person.
5. If you do refuse to accept the support person initially proposed by the employee, reschedule the meeting and give the employee the opportunity to arrange for another more suitable support person to be present.
6. Before the meeting commences, remind the employee and their support person that the role of the support person is to provide the employee with
   emotional and practical support during the meeting.
7. The support person is not to act as the employee’s representative, they may take notes and ask questions but not advocate on behalf of the employee.
8. Seek acknowledgement from the parties that they understand the role of the support person before commencing the meeting.
9. If the support person becomes disruptive remind them of their role and advise that if they continue to disrupt the meeting the meeting will be cancelled and rescheduled with the employee advised to bring a more suitable support person.

Following these steps will assist disciplinary meetings and improve an employer’s defence if a claim of unfair dismissal or adverse action is made
by the employee.

Please note that this is general advice for information only and any application of legislation and/or Industrial Relations or contractual requirements may require professional advice to suit your individual circumstances.

If you have question for Leigh’s team, send us an email.