When arranging a meeting with an employee to discuss what disciplinary action your company may take against them, it is best practice to offer the employee the opportunity have a support person of their choosing accompany them.
But employers are sometimes uncertain of their employees’ rights concerning having a support person present at a disciplinary meeting. And often, the employee or the support person are unsure of their role in the proceedings, too, and can overstep the mark.
Here are 8 questions about support persons answered:
- What can a support person do?
The role of a support person is to provide the employee with emotional and practical support during the meeting.
The support person cannot act as an advocate, or argue for the employee, but they may give advice to the employee or answer on their behalf if they are unable to do so. They may also request a break if needed.
In general, the support person is there to observe that the meeting is conducted fairly and can take notes and ask questions about the process.
- Do we have to offer a support person?
According to the Fair Work Act there is no obligation to offer an employee a support person, however it is generally a good idea to.
In an unfair dismissal hearing, the Fair Work Commission will consider whether the employee was offered a support person if it is found that any other step of the disciplinary process wasn’t followed correctly.
- Can we refuse that the employee has a support person?
No. This would breach the Fair Work Act and be grounds for an unfair dismissal claim.
- Can we decide who the support person is?
No. The employee has the right to choose their own support person.
- Who can the support person be?
Support persons can include co-workers, friends or family members, union representatives and lawyers.
If the meeting is being conducted by a small business however, a lawyer cannot act in a professional capacity.
- Can a particular support person be refused?
If there is a reasonable basis to refuse the person, such as a conflict of interest or a health and safety concern, yes.
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. Support persons must not be in any way involved or have an interest in the disciplinary process.
- What if the support person disrupts the meeting?
Ensure the support person understands exactly what their role is and what the boundaries are.
If they become argumentative or their behaviour is disruptive, remind them that they are there for support only and cannot be an advocate for, or speak on behalf of the employee.
Should the support person become too obstructive, you may need to stop the meeting and reschedule it, and perhaps suggest to the employee that they choose another support person.
- Can employers have their own support person present?
Yes. If you anticipate that the meeting may be difficult and/or there could be complaints made about how you conduct the meeting, it may help to have your own support person present who can take notes, as well as advise you of any questions you may have missed.
When conducting a disciplinary meeting, it is important to know all of your employee’s rights and your legal obligations, throughout every stage of the process.
Making even the slightest procedural error can result in a costly legal claim.