The role of a support person in unfair dismissal

If you are proposing to dismiss an employee, one thing you need to keep in mind is the presence and role of any support person for the employee at the meeting where dismissal is discussed.

Employers do not have an obligation to tell employees that they can have a support person present, but if the employee does request to have a support person, the employer cannot unreasonably refuse.

One issue that often arises is what the role of the support person is. Many employers take the view that the support person is there to be an independent witness and should not participate in the meeting. Employees however may prefer to have someone at the meeting who can advocate on their behalf, such as a lawyer or union representative.

The role of the support person

So what exactly is the role of the support person?

The Fair Work Act 2009 simply mentions the support person ‘assisting’ the employee at the meeting. The Fair Work Commission has said that the extent of assistance that the support person can provide will depend on the circumstances of the case. At the very least, this probably includes:

  • a support person of the employee’s choice;
  • assisting the employee to understand what is going on (for example, an interpreter if English is not the employee’s native language);
  • taking notes of what occurs at the meeting.

Arguably, this may also extend to assisting the employee to respond to the allegations if the employee has difficulty doing so.

Following a recent decision of the Full Bench of the Fair Work Commission however, this doesn’t mean advocating for the employee.

In Victorian Association for the Teaching of English Inc v de Laps [2014] FBFWC 613 the Fair Work Commission held that a refusal by an employer to allow an employee to have an advocate at the dismissal meeting did not constitute procedural unfairness.

So there it is – an employee is entitled to request to have a support person present but if that person is an advocate, the employer can refuse the request and that refusal will not form the basis for an unfair dismissal.

Similarly, if the support person does start representing the employee during the meeting, such as by making submissions or engaging with management about the substantive issues, you may be within your rights as an employer to ask them not to.

What does this mean for you?

Employers should be conscious that employees may request to have a support person present at any meeting to discuss dismissal or possible termination of their employment.

If you have any concerns about a request by an employee to have a support person present, or need assistance generally with terminating an employee, call our specialist Employment, Industrial Relations and Safety team.

For more information contact:

Jennifer Wyborn — Partner — Employment & Workplace Relations
(02) 6279 4328
jennifer.wyborn@meyervandenberg.com.au

Nathan Moy — Lawyer — Employment & Workplace Relations
(02) 6279 4366
nathan.moy@meyervandenberg.com.au