When it comes to disciplinary proceedings, support persons or more accurately the business not refusing the employee access to support persons is an essential step in the process. Today we’re going to unpack what your obligations are what the accepted practices are and anything else that your business needs to know.

Particularly when it comes to unfair dismissal employees have the right to request a support person to be present and that request to not unreasonably be refused. This will be considered by the Fair Work Commission in the event of an unfair dismissal application when determining if a dismissal was harsh unjust or unreasonable.

This does not prevent a business from refusing a support person to be present but rather the unreasonable refusal of a support person. an example where it might be unreasonable for an employer To refuse a support person would be where the employee speaks limited English and is relying on that support person to assist with effective communication. the general rule of thumb is to allow a support person on an employees request as in many cases there will not be a valid reason to refuse.

Typically our recommendation after spending many hours in the Commission is to proactively inform the employee that they are able to bring a support person into a serious disciplinary meeting.  we do this for the avoidance of any doubt around the employee’s ability to bring a support person along.

Now whilst most times convention has the support person remaining silent throughout the meeting rather than advocating for the employees interest, there is no requirement for them to do so and there is case law which advises that

“a support person must at the very least be able to speak for and on behalf of the person that they are supporting when providing assistance.”

So what this looks like in practice is that the support person can seek clarification as well as requesting a break in the meeting for them to speak with the employee privately.

From a business perspective there’s little disincentive to allow a support person to be present unless a serious conflict of interests occurs which may be the case in an investigation process. Outside of this from our perspective it is an essential compliance box that we need to tick to help protect our business from unfair dismissal claims.