Unreasonable Refusal of Support Person

Almost all Australian businesses now allow their employees to bring a support person to disciplinary and/or investigative meetings. Most businesses do this as a matter of course to avoid liability for unfair dismissal. Section 387 of the Fair Work Act 2009 (Cth) sets out the criteria by which the Fair Work Commission will decide if a dismissal was unfair or not. Subsection 387(d) states that one criterion is whether there was “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”.

The Fair Work Act 2009 (Cth) does not define the term ‘support person’. Some businesses have tried to implement policies which say that another staff member cannot act as a support person, though the legality of such policies is dubious. The wording of subsection 387(d) makes clear that the support person brought by an employee can “assist at any discussions relating to dismissal”, however, the practical outworking of these words is not fully clear.

There has only been one written legal decision which deals with this question, and that is the 2014 Fair Work Commission decision of Victorian Association for the Teaching of English Inc v Debra de Laps. In summary, the Full Bench of the Fair Work Commission found that the main limitation on a support person is that they cannot ‘advocate’ or ‘speak on behalf of’ an employee. A support person still can: take notes; help the employee formulate what they want to say; speak during the meeting to provide personal advice to the employee; ask questions about the process of the meeting, and ask that the meeting be adjourned to speak privately with the employee.

Given the above possible functions of a support person, by engaging someone who is experienced, who knows the finer details of relevant workplace laws and regulations, and who understands the potential consequences of certain actions or spoken phrases, an employee can potentially avoid an impending dismissal or even other disciplinary actions.

The mere presence of a legal professional at a disciplinary meeting sends a message to the business that the employee is consulting with lawyers, and may take further legal action if necessary. This can cause employers to think twice before making a spur of the moment decision that breaks the employment relationship.

McDonald Murholme lawyers have acted as support persons for many employees across almost every industry. Their presence – in person, by video call, or even by telephone – almost always leads to a more beneficial result for employees, and also for a less stressful experience during the disciplinary process.

Sometimes the presence of a lawyer as a support person also leads to the business realising that a negotiated exit should be reached sooner rather than later, and the human resources department may even reach out to your lawyer to have a private and confidential discussion about an exit package which is beneficial to both parties.

The fact is that most businesses and human resources departments are risk-averse, seeking to avoid litigation from outgoing or disgruntled employees. One of the best ways to take advantage of this general attitude is for employees to seek professional guidance and support as early as possible. In this way, it is much more likely that employees will either keep their jobs (which is increasingly valuable given the current economic crisis) or will be able to leave their employment with some form of negotiated exit package, protecting their reputation and their finances into the future.