If a claim for unfair dismissal is made with the Fair Work Commission (Commission), the Commission must determine whether the dismissal was harsh, unjust or unreasonable. In answering this question, the Commission will consider certain criteria, including any unreasonable refusal by the employee to allow the person to have a support person present to assist in any discussions relating to the dismissal.¹
It is important to note that an employer is not required to offer a support person be present at the meeting. However, the Commission will consider whether the employee requested a support person to be present at the meeting and whether the employer agreed to that request.
What is a “support person”?
There is no definition of what amounts to a support person under the Fair Work Act 2009 (Cth)(Act). However, a 2014 case provides guidance on support persons at a disciplinary meeting or other meeting concerning the employee’s performance.
In Victorian Association for the Teaching of English Inc (VATE) v Debra de Laps ², the full bench of the Commission held that the employee did not have a right to an ‘advocate’ at a meeting to discuss allegations. Ms de Laps was offered a support person to be present at the meeting. She requested an advocate be present at the meeting instead of a support person. The employer refused. The Commission said “….we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness." Ms de Laps unfair dismissal claim was dismissed on this issue.
The prevailing view is that a support person is not an advocate. They are not there to answer questions on behalf of the employee or to interject or interrupt the meeting. Simply put, they provide support to the employee. They are there to take notes and to ensure that the meeting is conducted fairly and not in an unfair or oppressive manner. They create a power balance between the employer, who is usually represented by human resources and the employee’s direct report.
The advantage to having a support person present is to accurately record what is said at the meeting. They can also request to take a break if the employee is too emotionally distressed to continue.
As a general observation, the role of a support person has not been settled by the Commission. The language of section 387(d), that the support person may “assist in any discussions” suggests that a support person may not necessarily be a passive bystander and that they can prepare for the meeting with the employee, assist the employee to formulate their responses and give advice.
If you have been invited to attend a termination meeting by your employer, it is recommended that you speak up and request a support person to be present at the meeting and give your employer the name of your support person in advance of the meeting.
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¹Section 387(d) of the Fair Work Act 2009 (Cth)