Should I engage a professional support person?

The role of a support person is somewhat vague and general according to the Fair Work Act 2009 (Cth) and recent case law. This lack of clear definition can be used to an employee’s advantage when facing disciplinary meetings or workplace investigations. By engaging an experienced support person, an employee gives themselves the opportunity to ensure the meeting proceeds reasonably and in accordance with law.

Almost all businesses provide their employees with the opportunity to bring a support person to a disciplinary and/or investigative meeting, largely in order to avoid liability for ‘unfair dismissal’. Section 387 of the Fair Work Act 2009 (Cth) sets out the criteria which a tribunal or commission must take into account when determining if a dismissal was indeed unfair. Subsection 387(d) provides that one criterion is whether there was ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’.

However, the role of a ‘support person’ at law is unclear and employers generally seek to limit the role of a support person. From the wording of the subsection above, it is clear that a support person can assist the employee during the discussions. It also is reasonable to expect that a support person may assist the employee’s preparations for a meeting. It has recently become clear, however, from Fair Work Commission decisions such as Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613, that a support person should not be limited to mere ‘emotional support’. Indeed the only limitation on a support person is that they cannot speak on behalf of an employee as a representative. However the support person can:

• Take notes;
• Help the employee formulate what they want to say;
• provide advice to the employee;
• Ask questions about the process of the meeting; and
• Ask that the meeting be adjourned in order to speak privately with the employee.

Often an experienced support person who can take a strong position and intervene where necessary will be the difference between a meeting ending in the termination of employment, and a meeting ending with agreement to “further investigate and discuss at a later date”.