I often hear from employee clients the words “But they didn’t offer me a support person”. The reality is that employers do not have a general legal obligation to offer employees an opportunity to have a support person, unless that right is provided in an enterprise agreement or contract.
However, what an employer cannot do is refuse an employee’s request for a support person where employment is ultimately terminated. The refusal of such a request is a relevant factor in determining whether a dismissal was harsh, unjust or unreasonable. And it certainly is best practice to offer an employee the opportunity to have a support person in most disciplinary situations. A failure to do so or a refusal may be relevant in cases other than unfair dismissal.
It is a matter of judgment as to when an offer of a support person should be given. It may be appropriate at several stages of the disciplinary process, e.g. at fact finding interviews as well as meetings to respond to allegations. Whilst good practice, it may not be necessary in relatively low level proceedings such as counselling or initial performance warnings. It is also wise to make the offer to the complainant, respondent and witnesses in significant investigations. Even if no offer is made, a request for a support person should usually be agreed to.
A support person is not an advocate for the employee. Their primary role is to provide moral support. They can and usually should take notes of the meeting and their involvement (particularly if they are a lawyer) may also extend to appropriate requests to provide advice to the employee during the meeting. The employee should be able to choose their own support person. This may be another employee as long as that person is not a respondent or witness in the same matter. Meeting arrangements should also accommodate the reasonable availability of the support person. Support persons can also be required to observe confidentiality obligations.
Lawyers do not have a right to advocate for their client in these meetings and employers are entitled to deal directly with their employee. Union representatives are in a different situation however. Employees have a right not to be treated adversely because they seek to be represented by a union. A union representative should generally be allowed to speak on behalf of their member if they seek to do so. It is wise to seek clarification about the role being undertaken by a union representative before a meeting commences.
Making an offer of a support person is a good step towards demonstrating procedural fairness. Please contact us if you would like help in this area.