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.
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An employee is entitled to have a support person at a disciplinary, performance management or investigatory meeting. The failure by an employer to allow you to have a support person present may result or add weight in a dismissal case with that meeting being deemed unfair due to the lack of procedural fairness.
Strictly speaking, a support person’s role is to provide emotional support only. The support person cannot advocate for you in the meeting or interject on your behalf. However, it is appropriate for the support person to speak at times, especially to ask for a break or to ask that a question asked of you be clarified.
Yes, a support person can take notes during the meeting to better prepare you to respond to any allegations or to proceed with a subsequent legal claim. The ultimate benefit of the support person is that they can provide the most reliable record of the meeting.
“The McDonald Murholme staff made me feel so comfortable, they provided me with great advice and helped me reach an outcome that I was very… more
“The McDonald Murholme staff made me feel so comfortable, they provided me with great advice and helped me reach an outcome that I was very happy with.”
“Thank you, Edward, Alan and the team. Your support throughout the journey was outstanding. I cannot recommend you enough. I could not be happier. Thank… more
“Thank you, Edward, Alan and the team. Your support throughout the journey was outstanding. I cannot recommend you enough. I could not be happier. Thank you again.”
“Alan and Stephanie were able to turn my workplace nightmare into a financially rewarding experience that I would never have been able to achieve without… more
“Alan and Stephanie were able to turn my workplace nightmare into a financially rewarding experience that I would never have been able to achieve without their knowledge and assistance. I am so grateful for the exit strategy they managed to negotiate for me to enable me to move on to a much better opportunity. Huge thanks to all the team at McDonald Murholme for the great work you all do.”
“Alan, Ned and the team at McDonald Murholme took a genuine interest in my situation. Their advice and guidance helped me quickly achieve a fair… more
“Alan, Ned and the team at McDonald Murholme took a genuine interest in my situation. Their advice and guidance helped me quickly achieve a fair settlement from my employer.”
“My need for support from McDonald Murholme came at a time when I was also focussing on a couple of other personal issues - both… more
“My need for support from McDonald Murholme came at a time when I was also focussing on a couple of other personal issues - both significant but unrelated. The support I received from Alan, Stephanie and the team was incredible - I felt supported at every step of the process and was 100% confident that the matter was being dealt with effectively whilst I addressed other things. Most importantly, however, the team were easy to talk to and kept me fully up to date with progress. Hopefully I'll not have a need to use them again but, if I do, I absolutely would NOT hesitate! Last thing for me to say - THANK YOU McDonald Murholme!”
“Alan, Julie and the team at McDonald Murholme helped me through a very stressful time with my employer. Once I contacted and engaged them they… more
“Alan, Julie and the team at McDonald Murholme helped me through a very stressful time with my employer. Once I contacted and engaged them they kept me informed and supported me throughout the journey. They took away my stress, were patient with my many questions and most importantly they empowered me. Highly recommend.”
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