One factor the Fair Work Commission takes into account when deciding if a dismissal was unfair is whether the employer unreasonably refused to allow the former employee to have a support person present to assist at any discussions relating to dismissal.1
How this works in reality can be difficult for employers. This article answers the top questions we deal with in relation to the participation of support persons in important (and often stressful) employment related discussions. This includes; do employers have to offer a support person; can employers refuse a particular support person, and; how to manage an ‘overly enthusiastic’ or obstructive support person.
Do employers have an obligation to offer a support person to an employee?
There is no positive obligation under the Fair Work Act 2009 on employers to offer an employee a support person during discussions, whether or not these concern, or might lead to, dismissal.2 The obligation on employers is to not unreasonably refuse a request made by an employee, to be assisted by a support person at any discussions relating to dismissal.
If there is no positive obligation, should employers offer them to employees?
There are three reasons why an employer should offer a support person for disciplinary meetings even though it is not specifically required.
Firstly, it is generally seen as fair and best practice to provide employees with the opportunity to have external support in important employment-related discussions. These discussions can be very stressful for employees and a support person can actually be of assistance, particularly where an employee is, or may become, upset.
Secondly, in the unfair dismissal case of Jimenez v Platypus Pty Limited3, the employer was heavily criticised on this point even though the employee had not requested a support person. The circumstances were that the employee was not informed of the purpose of the meeting — set up by the employer to discuss allegations of serious misconduct — and in fact, was led to believe that the meeting was to give the employee good news.
The Commission held that as the employee was not aware of the reason for the meeting, he did not request a support person — when he might have done had he been able to properly appreciate the seriousness of the situation. By actually offering a support person, an employer avoids being questioned in relation to support persons in any unfair dismissal application.