Support Persons in Disciplinary Meetings

Employers occasionally need to hold disciplinary meetings with employees to address misconduct issues or performance concerns. It is best practice to offer employees the opportunity to have a support person accompany them to these meetings. However, under the Fair Work Act 2009, an employer does not have a positive duty to offer an employee the option to have a support person. Rather, the employer cannot unreasonably refuse if the employee requests to have a support person present. Crucially, the presence or absence of a support person can impact the outcome of an unfair dismissal case. This article looks at the role of the support person in a disciplinary meeting and the employee’s legal entitlements to request their presence.

Support persons in the workplace

The role of a support person is to provide the employee with moral support. Typically, the support person sits next to the employee in the meeting and often stays with the employee afterwards to discuss the proceeding. A support person attends disciplinary meetings, not routine meetings such as annual reviews. Disciplinary meetings are serious conferences between management and employees and often involve the potential for dismissal. Having a support person in attendance can help an employee relax and focus on addressing the employer’s concerns. 

There are no statutory criteria for selecting a support person, though there are sometimes guidelines in employment contracts, modern awards or enterprise agreements. A support person can be anyone the employee chooses, such as a union representative, family member, friend, or mentor. However, it may be deemed inappropriate to have a former employee with a history of grievances with management act as a support person, as they are likely to be more disruptive than supportive. The role of the support person, according to the Fair Work Act, is to “assist” during the disciplinary meeting, to the extent necessary depending on the circumstances. Generally, this might mean:

• reviewing any documentation before the meeting and helping the employee understand the allegations;
• helping the employee understand questions during the meeting;
• taking notes during the meeting;
• acting as a confidential sounding board for the employee;
• acting as a witness to ensure procedural fairness in the process;
• suggesting breaks when necessary; and
• obtaining legal advice during meeting breaks.

The meeting convener should clarify at the beginning of the meeting that the support person is not an advocate and cannot speak on behalf of the employee. If the support person attempts to answer questions on the employee’s behalf, the convener should remind them of their role and record the interruptions in the minutes. In extreme circumstances, where the support person is unduly disruptive, the employer may pause the meeting and ask the support person to leave. In that case, the employer should offer the employee time to find an alternative person.

Unfair dismissal

When the Fair Work Commission (FWC) assesses an unfair dismissal claim, it examines whether the termination was “harsh, unjust or unreasonable”. While fairness does not require the employer to offer a support person, it does demand that they do not refuse a request to have such support without justification. Therefore, an employer should never unreasonably refuse an employee’s request for a support person at a meeting to discuss termination, as this may immediately suggest to the FWC that the process was unfair. If the employer does deny a request, the FWC may find that there was no procedural fairness, and the dismissal was therefore unfair.

In practice, employers should exceed the minimum legal requirements and suggest that employees bring a support person and give more than adequate time for them to arrange for their attendance. This proactive approach is particularly important when the employee is likely to require the assistance of a support person to fully understand the proceedings, such as when the employee is from a culturally or linguistically diverse background. By routinely offering employees a support person during disciplinary meetings, the employer can effectively demonstrate procedural fairness.

Refusing a support person

An employer should only deny the presence of a particular support person if there is a potential conflict of interest. For example, the employee should not ask a colleague to act as a support person if they are also a witness in a workplace investigation, or if the support person is a manager or supervisor of the employee. The FWC found in Trembath v RACV Cape Schanck Resort[2017] that the employer’s refusal of a support person was reasonable. In that instance, the employee requested that a colleague act as their support person, but the individual was a management representative involved in the dismissal.

Employees often ask co-workers to act as their support person, which can strain relationships within a workplace. For instance, in Chandler, Angele v Bed Bath N’ Table [2020], an employer refused the choice of support person because there was a company policy against employees acting in this capacity. The FWC found at the unfair dismissal hearing that the employer was entitled to make the refusal based on the company policy. However, the Commissioner found that the employer’s refusal to delay the meeting to give the employee time to find another support person was unreasonable, especially as the worker faced dismissal. Employers should accommodate requests to postpone a disciplinary meeting to ensure a support person’s availability. However, the employer can refuse the request if there is ample notice or repeated postponements.

If the employer refuses the employee’s initial choice of support person, they should give the employee adequate time to select a more appropriate choice. The employer must not attempt to help the process along by suggesting a specific support person for the employee. In Dewson v Boom Logistics Ltd [2012], an employee was dismissed for serious misconduct. Before the disciplinary meeting, the employee requested a specific union official act as a support person. The employer denied the request and invited a different union delegate to act as a support person. The FWC held that this refusal and substitution was unreasonable, and in light of other failings in procedural fairness, the FWC deemed the dismissal unfair.

The Go To Court employment law team can provide further advice about the role of support persons at disciplinary meetings, or assist with any legal matter. Please reach out to the team on 1300 636846.