You know the drill. You direct an employee to attend a performance or disciplinary meeting, and tell them they’re welcome to bring a support person. Next thing, the employee refuses to attend at the directed time and seeks to reschedulebased on their lawyer’s availability. What can you do next?
As we know, “any unreasonable refusal by an employer to allow the person to have a support person present to assist at any discussions relating to dismissal” is a factor to which the Fair Work Commission must have regard in any unfair dismissal proceedings.
Importantly, an employer does not have an absolute obligation to ensure the employee has a support person present. Rather, unfairness may arise from unreasonable refusal.
In Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link, the employer scheduled two meetings to discuss allegations against an employee. The employee’s representative requested that those meetings be rescheduled. The employer refused.
The FWC found that the employer had provided adequate notice of the meetings, and the employee’s requests to reschedule had been made at relatively short notice.Therefore, the refusal was not unreasonable.
Given the role of a support person, the fact that a lawyer is not able to attend is no basis for rescheduling. In Victorian Association for the Teaching of English Inc v Debra de Laps, the FWC clarified the role of a support person: to support, not act as an advocate.
Support people can take notes, consult with the employee should the employee require a break and provide emotional support to the employee. Support people are not there to present the employee’s case, or to respond to issues raised by the employer on the employee’s behalf.
Although the Fair Work Act doesn’t require employers to notify employees that they can have a support person present, it’s always good practice to raise the option upfront. And remember, support people are there to support, so their presence at the meeting should not get in the way of an employer’s ability to hold a meeting with their employee. If the support person is being disruptive, you’re entitled to ask them to leave.