The role of the support person in workplace meetings
In certain cases, employees may be notified that they are to attend a meeting with their employer to discuss a matter relevant to the employee’s employment. As this can be a very stressful time if it is happening to you, we recommend that you have a support person present.
In most cases, these meetings may be related to performance, disciplinary action and misconduct allegations, discussion of a grievance or consultation regarding change. For ensuring that these matters are dealt with in a procedurally fair manner, an employer may invite an employee to bring a support person with them to the upcoming meeting
Often there is uncertainty on behalf of both the employee and management about the role of the support person at a disciplinary meeting. This article may help you understand the function better.
What can your support person do?
The role of a support person is to provide the employee with emotional support during the meeting, take notes and adjourn the meeting for a break if required.
The employee will be required to do most of the speaking as the support person cannot represent the employee and is not able to advocate on their behalf. The support person acts as an observer, takes notes and can ask questions about the process if the meeting does not adhere to its scope.
The Full Bench of the Fair Work Commission (the Commission) clarified the role of a support person in Victorian Association for the Teaching of English Inc v Debra de Laps  FWCFB 613 and found that a support person is to help however, there is no legislative obligation for a support person to advocate on the behalf of an employee.
In some cases, your employer may expressly allow for an advocate or representative to be present at these meetings. This may be stated in a letter you receive from your employer when you are notified of an upcoming meeting, your Enterprise Agreement if you are covered by one and/or policies.
What if management does not want someone else at the meeting?
An employer is to ensure that the employee is afforded an opportunity to have a support person present and should be informing the employee of this right.
Under s. 387 of the Fair Work Act 2009 (Cth) (the Act) in cases related to Unfair Dismissals, the Commission is to give several considerations when considering whether the dismissal was harsh, unjust or unreasonable. One of these considerations is whether there was any unreasonable refusal by the employer to have a support person present to assist in any discussions relating to dismissal. If you believe that you are not being afforded this procedural fairness, please contact the Workplace Advice and Support team via email at email@example.com
Who can I use as a support person?
You have the right to decide who your support person is. The employer cannot decide for you and in most cases cannot refuse anyone you choose. The employer can only refuse a preferred support person if there are reasonable grounds to do so, such as a conflict of interest or a health and safety concern. For example, the support person should not be a witness to, or otherwise be associated with an investigation, or have any personal interest in the outcome.
This also applies to the employer. The employer cannot have any party who has an interest in any investigation act as investigator or act in any support role.
A support person can be a co-worker, friend, family member, union representative, union delegate or lawyer. However, a lawyer cannot act in a professional capacity as a representative.
What if the support person intervenes?
Most employers commence meetings with an explanation of what the support person cannot do and they do this to imply that the support person must be silent at all times. As noted above, there are some things that a support person can do. However, should the support person overstep their role and act in a disruptive or argumentative manner, they risk compromising the interests of the employee. The support person should only intervene if the meeting process appears to be inappropriate e.g. people raising their voices, making new accusations to the employee and making threats.
What can Professionals Australia do?
Professionals Australia is unable to advocate for you during a disciplinary meeting unless your employer has expressly stated that we are able to do so. Attempting to do so if otherwise advised that we are not to be present as a representative is potentially detrimental to your interests.
If you have contacted the Workplace Advice and Support team and your matter has been assigned to a lawyer, please take note that lawyers are bound by professional ethical obligations. Lawyers are at risk of becoming a witness if things go wrong, thus limiting their future capacity to advocate in the matter. Namely, that a lawyer is unable to continue to act for a member if it becomes known or apparent that the lawyer will be required to give evidence on contested issues related to your matter. This is particularly important to note for disciplinary meetings which, may lead to an Unfair Dismissal or General Protections Dismissal application. Therefore, for conflict of interest and ethical obligations it is strongly advised that persons, other than the lawyer looking after your case, attends.
Our procedure is that you arrange your own support person to act as the observer and collect as much information as possible. We are available to provide advice and strategies prior to the meeting as well as to debrief afterwards. In circumstances where an immediate threat to employment exists Professionals Australia may be able to attend via dialling in on the phone for a teleconference. As noted should employers make procedural errors we can utilise this in a context outside of the meeting where we as your advocate can play a more active role.
As a paid-up member, you have full access to our team of lawyers and industrial officers. If you need assistance to better understand your entitlements, feel free to contact our team via email at firstname.lastname@example.org or for immediate support call 1300 273 762.