The role of support persons in unfair dismissal claims

By Alan J. McDonald

A support person is a person that an employee brings to a discussion relating to dismissal for practical or emotional support. Many myths abound about the obligations of employers relating to support persons, and our clients often report confusion about their rights in this area. We will here explain the law with regards to support persons and how this affects you.

The law

Section 387 of the Fair Work Act 2009 (Cth) sets out a list of criteria which the Fair Work Commission must take into account in determining whether a dismissal was unfair in the sense of ‘harsh, unjust or unreasonable’. One of these criteria is whether the employer unreasonably refused for the employee to have a support person present to assist at any discussions relating to dismissal.

Contrary to popular belief, this section of the Fair Work Act 2009 (Cth) does not impose on an employer a positive obligation to provide an employee with the opportunity to bring a support person to discussions relating to dismissal. Rather, it provides that if an employer unreasonably refuses a request for an employee to bring a support person to any such discussions, this refusal may be instrumental in determining whether the dismissal was unfair, being ‘harsh, unjust or unreasonable’.

Decisions of the Fair Work Commission can help us to illustrate when an employer will be held to have unreasonably refused a request for an employee to bring a support person to discussions relating to dismissal.

For example, the Fair Work Commission has held that an employer’s refusal is unreasonable where:

• The employer refused to reschedule a meeting where a union representative could attend; and
• The employer refused the employee their choice of support person, and instead offered an HR representative.

The Fair Work Commission has held that an employer’s refusal is reasonable where:

• The employee made no request for a support person to attend; and
• The employer refused to reschedule a meeting at short notice upon the request of the employee’s representative.

How this affects you

Most employers will offer a support person to employees with whom they are holding discussions relating to dismissal. However, in order to obtain the best possible outcome in your circumstances we suggest that you:

• Ask your employer whether you may bring a support person;
• Request more time to obtain a support person, if necessary; and
• Clarify the role the support person will be able to play in the discussion.

How we can help

Our experienced and professional lawyers often attend meetings with clients at their place of work in the role of their ‘support person’. We find that this substantially shifts the balance of power and compels employers to follow correct procedures in holding discussions relating to dismissal. There is also a sympathetic witness who takes minutes of the meeting for any future action.

If you would like to know more about support persons, or have any other questions in relation to employment law, please contact our office on (03) 9650 4555.