Almost all Australian businesses now allow their employees to bring a support person to disciplinary and/or investigative meetings. Most businesses do this as a matter of course to avoid liability for unfair dismissal. Section 387 of the Fair Work Act 2009 (Cth) sets out the criteria by which the Fair Work Commission will decide if a dismissal was unfair or not. Subsection 387(d) states that one criterion is whether there was “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”.

unreasonable refusal of support person

The Fair Work Act 2009 (Cth) does not define the term ‘support person’. Some businesses have tried to implement policies which say that another staff member cannot act as a support person, though the legality of such policies is dubious. The wording of subsection 387(d) makes clear that the support person brought by an employee can “assist at any discussions relating to dismissal”, however, the practical outworking of these words is not fully clear.

There has only been one written legal decision which deals with this question, and that is the 2014 Fair Work Commission decision of Victorian Association for the Teaching of English Inc v Debra de Laps. In summary, the Full Bench of the Fair Work Commission found that the main limitation on a support person is that they cannot ‘advocate’ or ‘speak on behalf of’ an employee. A support person still can: take notes; help the employee formulate what they want to say; speak during the meeting to provide personal advice to the employee; ask questions about the process of the meeting, and ask that the meeting be adjourned to speak privately with the employee.

Given the above possible functions of a support person, by engaging someone who is experienced, who knows the finer details of relevant workplace laws and regulations, and who understands the potential consequences of certain actions or spoken phrases, an employee can potentially avoid an impending dismissal or even other disciplinary actions.

The mere presence of a legal professional at a disciplinary meeting sends a message to the business that the employee is consulting with lawyers, and may take further legal action if necessary. This can cause employers to think twice before making a spur of the moment decision that breaks the employment relationship.

McDonald Murholme lawyers have acted as support persons for many employees across almost every industry. Their presence – in person, by video call, or even by telephone – almost always leads to a more beneficial result for employees, and also for a less stressful experience during the disciplinary process.

Sometimes the presence of a lawyer as a support person also leads to the business realising that a negotiated exit should be reached sooner rather than later, and the human resources department may even reach out to your lawyer to have a private and confidential discussion about an exit package which is beneficial to both parties.

The fact is that most businesses and human resources departments are risk-averse, seeking to avoid litigation from outgoing or disgruntled employees. One of the best ways to take advantage of this general attitude is for employees to seek professional guidance and support as early as possible. In this way, it is much more likely that employees will either keep their jobs (which is increasingly valuable given the current economic crisis) or will be able to leave their employment with some form of negotiated exit package, protecting their reputation and their finances into the future.

Our clients' satisfaction is pivotal to our own success.

  • July 2020

    I wouldn't hesitate to recommend McDonald Murholme. From the initial consultation, right through to the resolution process, the entire team was supportive, knowledgable and approachable and made what can be a difficult situation much easier. Specifically Trent and Alexandra provided a high level of service, and engaged with me in a very personable manner. I am extremely satisfied with the service I received.
  • July 2020

    I couldn't recommend the team from McDonald Murholme more. Mr Sam Nottle was efficient, professional and achieved a wonderful result. If you are questioning whether to go ahead with an employment matter legally, I would urge you to do so. The team at McDonald Murholme made the process easy & reduced all of my anxiety and stress. Thank you again, Mr Nottle & team, I can't express my appreciation enough.
  • June 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.
  • May 2020

    Extremely happy with the service received from all the staff members i had to deal with. The lawyer allocated for my case (Michael Kriewaldt) was extremely professional and handled the case very smoothly. Highly recommend their services.
  • May 2020

    I found Arthur Hambas & Katherine Boyles extremely professional & compassionate in my dealings with them. After telling Arthur that I felt the details surrounding my redundancy felt wrong he took on my case & secured me a better payout from my employer. I would not hesitate to recommend Mcdonald Murholme to anyone that has a feeling that something isn't quite right. I greatly appreciate everything you did.
  • April 2020

    The solicitors at the firm were very prompt and actioned my complaint against my employer very quickly. I obtained the result I wanted, in fact, I got a better result than what I had originally asked for. I was very pleased with the results and would highly recommend McDonald Murholme.
  • March 2020

    I would like to say that McDonald Murholme have treated me with nothing but professionalism and also great service. Trent, a principal in the firm is attentive to your needs and will ensure your case is handled with care and mindful consideration to all parameters involved.

Support Person Issues?

Speak to an employment lawyer who has acted for thousands of employees like you.

Frequently asked support person questions

Can I have a support person at a meeting?

An employee is entitled to have a support person at a disciplinary, performance management or investigatory meeting. The failure by an employer to allow you to have a support person present may result or add weight in a dismissal case with that meeting being deemed unfair due to the lack of procedural fairness.

Is my support person allowed to speak or act on my behalf during a meeting?

Strictly speaking, a support person’s role is to provide emotional support only. The support person cannot advocate for you in the meeting or interject on your behalf. However, it is appropriate for the support person to speak at times, especially to ask for a break or to ask that a question asked of you be clarified.

Is my support person allowed to take notes during a meeting?

Yes, a support person can take notes during the meeting to better prepare you to respond to any allegations or to proceed with a subsequent legal claim. The ultimate benefit of the support person is that they can provide the most reliable record of the meeting.

Speak to an employment lawyer who has acted for thousands of employees like you.

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