Have you ever felt ‘backed into a corner’ where an employee has demanded the right to have a ‘support person’ with them in a meeting you want to have with them?
A recent decision of the full bench of the Fair Work Commission (Victorian Association for the teaching of English Inc VS Debra de Laps) appears to be the first which throws some light on the role of the support person and which suggests that an employee does not have an ‘inherent right’ to be represented by an ‘advocate’ ie someone who speaks on their behalf.
Under Section 387(d) of the Fair Work Act one factor that is taken into account in determining whether a termination was harsh, unjust or unreasonable is whether there was an ‘unreasonable refusal’ to permit the employee to be accompanied by a ‘support person’ at any discussion relating to the dismissal. Therefore understanding how far you can go as an employer in managing this is an important part in also managing a termination effectively.
Whilst the line between ‘support person’ and ‘advocate’ has yet to be clearly drawn in terms of case law it is clear that an employer has specific obligations where they unreasonably refuse an employee having a ‘support person’ with them at a meeting where termination is to be discussed or which may end in termination. Importantly it is not a requirement that employers ‘offer’ this to an employee in advance nor even draw the employee’s attention to the fact that they have the right to request a support person. Though in general practice (and perhaps from the perspective of ‘best’ practice and fairness and equity) the fact is that many employers do offer this to employees it is definitely the case that employees do not have the right to have a support person with them when attending a disciplinary meeting or counselling session which is part of normal operational routine and not likely to end in termination.
It is imperative that the employer set clear parameters for any meeting where a support person is in attendance in order that they retain control of the meeting and the agenda. A support person may well ‘assist’ the process, provide advice or opinion to the person they are supporting and take notes etc but they cannot ‘speak’ on behalf of the employee to the employer which then places them in the role of ‘advocate’ which is beyond the scope of the Act.
The following guidelines may assist:
- Does the employee have a right to have a support person with them and if not what is your position on this? Will you let them have one and/or offer the opportunity anyway?
- Clearly establish the ‘protocols’ prior to the meeting commencing and inform the parties of what you will allow and what you won’t, in many cases a support person isn’t an employee of the Company at all, having spouses and partners present can introduce an element of ‘risk’.
- Manage the meeting appropriately to allow the right of reply but curb any interruptions/interjections from the support person and – if necessary – stop the meeting.
- Have your own ‘support person’ present ie a third party to take notes and observe proceedings – this will often assist the smooth flow of a meeting.
Questions? Call us to discuss any issues or concerns you may have in this area.
Any advice provided by Workwise does not constitute ‘legal opinion’. Clients wishing to access legal opinion and protection under legal privilege should access the services of a legal practitioner. Such services are available through Workwise’s strategic partnership arrangements and may attract additional fees and charges prescribed by the legal practice.