Under the Fair Work Act, employees have the right to request a support person during discussions that may lead to disciplinary action, including potential dismissal.

A support person is someone chosen by the employee to accompany them during a disciplinary meeting. This person can be a colleague, friend, family member, or union representative. Their primary role is to provide emotional support and to witness the proceedings, ensuring that the meeting is conducted fairly.

While the Act does not require you to offer a support person, refusing a request from an employee could be considered a breach of procedural fairness, which may lead to claims of unfair dismissal.

What can a support person do?

• Provide emotional support to the employee
• Take notes during the meeting
• Request breaks if the employee feels overwhelmed

What can a support person NOT do?

• Speak on behalf of the employee or advocate for them during the meeting
• Intervene in the discussion unless the employee is unable to respond

It’s recommended that employers clearly communicate to employees about their option for a support person and outline the support person’s role.

Employers can refuse a support person if there is a conflict of interest, for example if that person is also involved in the disciplinary matter. The employer should document any refusals and provide reasonable time for the employee to select an alternative support person.

It is essential for both employees and employers to understand the rights and roles associated with support persons to ensure that meetings are conducted appropriately and that employees feel supported during potentially stressful situations. Having a support person present during disciplinary meetings can help to create a more balanced and fair process.

Warning: Failure to comply with support person criteria has the potential to make or break an unfair dismissal case. Many matters that should have been won on behalf of the employer have failed, simply because procedural fairness in relation to a support person was not conducted properly.

IR Support

Full Cotton Australia levy payers are entitlement to a 15-minute IR consultation with Wayne Schwalbach from Employment Mediation Services on 0447 935 416 to assist with workplace questions.