This post is contributed by Workplace Conflict Resolution’s Legal Commentator, Tiffany Healy
One of the most challenging tasks an employer must face is managing and disciplining their employees. Employers are often confronted with situations where they are required to convene meetings to discuss sensitive issues including managing the performance of an employee, discussing inappropriate behaviour in the workplace with an individual, or dealing with hostile relations between work colleagues.
These conversations alone are challenging at the best of times. However, employers are also confronted with having to manage their occupational health and safety obligations as well as striving to provide the necessary support to the individual or employee involved. These competing priorities may leave an employer feeling quite confused and perplexed about how to manage an already delicate situation.
Ensuring that the employee who is at the heart of the issue has a support person present is a well-practised and effective way of ensuring the individual is supported through a difficult conversation. An employee is entitled to the presence of a support person; section 387 of the Fair Work Act sets out a number of circumstances that the Fair Work Commission must take into account when deciding if someone’s dismissal is ‘unfair’; one of these situations includes whether the employer unreasonably refused for the employee to have a support person present to assist with discussions.
However, whether the support person can advocate on the employee’s behalf is another matter entirely and managing yet another person in a delicate meeting imposes a different set of challenges: What role should a support person play? Are there limits upon their interactions in the meeting? Can they advocate for the person whom they are supporting?
In Victoria, the Full Bench of the Fair Work Commission recently ruled on exactly this point of the law, clarifying the role of a support person in a meeting. An employee brought an unfair dismissal claim against her former employer and one of her complaints involved her support person not being allowed to act as an advocate; her employer rejected this, suggesting in a letter ’that the role of a support person is to provide you with emotional support. The support person is not to act as your advocate and should not speak on your behalf.’
At first instance, Commissioner Ryan found the employer’s perspective to be incorrect, confining the support person to an ‘extremely limited role’ and ultimately finding the dismissal was unfair when considered with other issues. However, on appeal, the Full Bench of the Commission overturned the decision, clarifying that the employer was not obliged to allow an advocate present in this meeting and the term ‘support person’ did not extend to that individual acting on the employee’s behalf.
If an organisation’s disciplinary policies and procedures have been effectively communicated and implemented, then disciplinary meetings can be far less stressful. Best practice policies and procedures can assist in creating a more harmonious workplace.
There are a number of lessons to take away from this recent case:
- It is good practice to notify your employee that they may bring a support person, even though you are not necessarily required to do this
- Do not refuse the presence of a support person for your employee
- Communicate the role of a support person directly to them and the employee they are supporting
- Allow the support person to assist the employee in understanding the process and the questions that are being asked of them. However, be vigilant that the support person does not become an advocate for the employee
- Good practice may include the employer suggesting that breaks be taken for the support person to consult with and have frank and private discussions with the employee they are supporting
- Be aware of your obligations under any other industrial instrument to which you may be a party that relates to having a support person in a meeting