Employees are entitled to have a support person present during any meetings with their employer relating to the employee’s performance, a workplace investigation or disciplinary action.

The role of the support person is to provide the employee with emotional support throughout the course of the meeting and to take notes if required.  The support person must not advocate on behalf of the employee or answer questions for the employee.  Although the support person may ask questions about the process or to help the employee understand what is being asked of them, the support person is predominantly an observer only.

It is the employee’s decision whether to have a support person present at an employment related meeting and if so, who to choose as their support person.  The support person can be any person except for a person with a conflict of interest (such as a co-worker also under investigation or a witness to an allegation).  The support person must also not be a lawyer acting in a professional capacity.  If a family member is a lawyer, they could be a support person however if the lawyer is acting in a professional capacity as the employee’s representative, they cannot act as a support person for the employee.  If an employee selects a support person who is not appropriate or not entitled to act in the role of a support person, the employer must make it clear to the employee that the selected support person is not appropriate and invite the employee to select a more appropriate support person.

An employer cannot refuse to allow an employee to have a support person present in a performance related meeting or workplace investigation.  If an employer refuses to allow the employee to have a support person present and the employee is subsequently dismissed, the dismissal may be deemed unfair due to the employee not being afforded procedural fairness.  Further, an employer should not assume that an employee is aware of his or her entitlement to have a support person present at a performance related meeting. 

If a support person becomes disruptive to a meeting or behaves inappropriately, the employer may pause the meeting and provide the support person with an opportunity to change their behaviour.  If the behaviour does not change, the employer may postpone the meeting to a later date and ask the employee to select a different support person.  For the employee, this may compromise their situation or delay the outcome of the meeting.

Although there is no positive obligation on an employer to offer an employee the opportunity to have a support person present, employers are encouraged to expressly invite an employee to have a support person present in a performance related meeting.  Doing so will be beneficial to an employer if the employee is subsequently dismissed and lodges a claim for unfair dismissal in the Fair Work Commission.

If you have any queries regarding managing your employees or any other employment law issue, please contact Sarah Stoddart on (07) 3370 0200 or sarahstoddart@stoddartlegal.com.au .

 

This article is intended to be for general information only. It does not constitute legal advice nor does it establish a relationship of client and lawyer. Specific circumstances or changes in law may vary the accuracy or applicability of the information published. We recommend seeking specific legal advice particular to your circumstances before taking any action, or refraining from taking any action, on any issue dealt with in this article.