When should I offer an employee a support person?
As a matter of general best practice, this is a good idea wherever a conversation you intend to have with an employee may touch on matters which may affect a person’s employment (i.e. disciplinary, investigation meetings) or where the subject matter of the meeting means that the employee may need emotional support.
Offering a support person is generally not necessary (or appropriate) for run-of-the-mill meetings, performance planning sessions etc.
Am I ever obliged to offer a support person?
Generally, no. Contrary to a commonly held view, the Fair Work Act 2009 (Cth) does not require that employers offer employees a support person. However, an employer's "unreasonable refusal" to allow someone to have a support person present in any discussion relating to dismissal is one factor that the Fair Work Commission does take into consideration in determining whether or not a dismissal is harsh, unjust or unreasonable (i.e. in an unfair dismissal context).
There are certain circumstances in which you may be required to offer an employee a support person, or even allow someone to play a more representational role. For example, a support person must be offered where you have a binding policy, contractual term or enterprise agreement that requires this. Some enterprise agreements (particularly in more unionised workplaces) may provide union representatives a "right of audience" in terms of certain kinds of meetings. Again, this right may go beyond a support person role, and allow for the relevant person to advocate for or speak on the employee's behalf.
What role can a support person play?
Barring circumstances as described above where a representative has a "right of audience" in a meeting, when offering an employee a support person, you should make a clear direction (ideally written and confirmed during the meeting) that the role of a support person is to do just that – to provide support, take notes, and occasionally ask clarifying questions if necessary. However, they are not to speak on the employee's behalf or advocate for him or her.
Here are two other important take-away points:
- It's important to make clear to any support person present that they are bound by confidentiality in the same way as other participants in a relevant meeting; and
- You should reserve the right to refuse a particular person acting (or continuing to act) as a support person where their involvement would be inappropriate (for example, due to them being a potential or actual witness in an investigation) or where their conduct extends past the proper role of a support person.
If you require further information or have any queries in relation to this series, please contact Sina Zevari.
This is a series - this article is part 1.
Part 2 can be found here >
Part 3 can be found here >
Part 4 can be found here >
