To ensure that due process and procedural fairness is applied, an employee should be permitted to bring a support person with them when attending a formal meeting that relates to their employment. Such meetings where a support person may be present include performance, disciplinary, and termination meetings, as well as meetings held in relation to a workplace investigation (This includes where the employee is being interviewed in the capacity of being a witness).
Although the Fair Work Act 2009 does not specifically state that an employer is required to offer the employee the opportunity to bring a support person to a meeting, an employer cannot unreasonably deny an employee’s request to do so. In order to reduce any potential procedural delays or disputes regarding procedural fairness, we do recommend that an employee be advised that they may have a support person in attendance at the time of being invited to attend a formal meeting.
Who can be a support person?
A support person can be a person of the employee’s choosing, and could be anyone from a colleague, union representative, a lawyer, friend or family member. The role of the support person is to provide moral and emotional support for the employee only. The support person is not there to answer questions or to speak on behalf of the employee. Similarly, they cannot engage with or disrupt the meeting. The support person may however offer advice to the employee throughout the meeting and take notes.
Can we determine who the employee brings as their support person?
As an employer, while you may request that the employee inform you who it is they intend to use as their support person, there are only limited instances in which the chosen support person can be vetoed, such as where there will be a conflict of interest (for example, where the nominated support person will be involved in the investigation process in any capacity, such as a potential witness).
What if the support person becomes disruptive?
To minimise the likelihood of a support person trying to intervene in the meeting or overstep their role, it is recommended that steps be taken to inform and/or remind the support person of what their role is and what the boundaries are at the commencement of each meeting. The employee should also be reminded that they can request to speak with their support person privately if required during the meeting.
In addition to notifying a support person of what their role is in the meeting, it is essential that they are also made aware of what confidentiality restrictions they are bound by. Where the support person is also an employee, they should be advised that any confidentiality breaches could result in disciplinary action, up to and including termination.
In the event that the employee’s support person does not comply, or they repeatedly overstep their role, the employer should take steps to again remind them of what their role is. If required, the meeting can be ceased until such time that the support person agrees to comply.
If the support person’s conduct does continue, there may be a requirement to speak with the employee to request that they reconsider who they bring with them as a support person going forward.
Should the employer have a support person also?
It is reasonable for the person conducting the meeting to also have a support person present should they feel it is necessary. An employer’s support person can provide support through taking notes during the meeting as well as assisting in with a debrief following a meeting.
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