There is confusion from both the employer and the employee about the role of a support person in meetings that might be around performance or behaviour by the employee in the workplace.
A support person is someone who attends a meeting with an employee and provides support in that meeting with the employer.
However, there is often an assumption that the support person will act as the employee’s advocate at the meeting.
For the support person to do anything other than provide support can complicate disciplinary or performance management process by advocating for an employee’s legal position, or trying to speak or argue on their behalf.
Under the Fair Work Act, there is no positive duty to notify employees of their right to bring a support person to performance management and disciplinary meetings. However an employer is obligates not to unreasonably refuse an employee’s request to bring one.
Where termination is a potential outcome, it is strongly recommended that employers remind their employee they can bring a support person if they want to. Employers should also clarify who can be an appropriate support person – e.g. prohibiting a co-worker through a company policy.
An employee might choose a family member, friend, union official or delegate, work colleague, lawyer or workplace relations advisor. While there’s no set criteria under the FW Act, there might be provisions in modern awards, enterprise agreements and employment contracts that employers need to take into account.
An inappropriate support person might be a co-worker who is also a witness, or will potentially become involved in the process in another capacity; the employee’s manager; in a superior position to the person conducting the process; or a disgruntled former employee.
Where the proposed support person has a conflict of interest, their attendance could be considered unreasonable, giving the employer grounds to refuse the employee’s choice.
In addition to providing emotional support to the employee, the support person might:
- Review relevant documentation before the meeting;
- Help the employee understand questions asked;
- Take notes;
- Act as a sounding board;
- Ensure fairness in the treatment of the employee;
- Suggest breaks; and
- Facilitate discussions or obtaining advice from an advocate during breaks.
In the 2020 FWC case of Chandler v Bed Bath N’ Table, the employer refused the employee’s request to bring a co-worker as a support person because the company policy specifically prohibited it. Although in this case, this wasn’t the reason given to the employee, the Commissioner didn’t fault the prohibition – but did find the employer unreasonably refused to delay a meeting so the employee could replace them.
Other steps an employer might like to undertaken in ensuring an employee has an appropriate person is to:
- Provide an overview of the support person’s role in advance of the meeting;
- Have the support person sign a confidentiality agreement prior to the meeting to protect sensitive information; and
- Remind parts of the support person’s role at the start of the meeting.
Conversations about performance and behaviour are almost always difficult so it’s often prudent to go a step ahead of the Fair Work Act obligations.
Akyra’s Key Takeaways
- The primary role of a support person in meetings concerning an employee’s performance or behavior is to provide emotional support and assistance to the employee during the meeting with the employer. Their presence helps alleviate potential stress for the employee and ensures a fair and balanced process. However, it’s important to note that the support person’s role is not to advocate or argue on behalf of the employee. This distinction is crucial to avoid complicating the disciplinary or performance management process.
- Employers have a responsibility to not unreasonably refuse an employee’s request to bring a support person to performance management or disciplinary meetings. While there is no positive duty under the Fair Work Act to notify employees of this right, employers are advised to remind employees of their option to have a support person present, particularly when termination is a potential outcome. Employers should also define who qualifies as an appropriate support person, and they may prohibit certain individuals like co-workers through company policies.
- The support person’s responsibilities extend beyond emotional support. They can help the employee by reviewing relevant documents before the meeting, assisting with understanding questions asked, taking notes, acting as a sounding board, ensuring fairness in treatment, suggesting breaks when necessary, and facilitating discussions or obtaining advice from an advocate during breaks. This multifaceted role underscores the importance of selecting an appropriate and effective support person.
In addition to these takeaways, employers should take steps to ensure employees have access to an appropriate support person and may consider providing an overview of the support person’s role, obtaining a confidentiality agreement, and reiterating the support person’s role at the start of the meeting.
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At Akyra, we’re here to assist you in navigating through complex employee behaviour concerns. From keeping you updated with relevant industrial laws to setting up processes, we can help. Stay on top and alleviate employee concerns by reaching Akyra at 07 3204 8830. Alternatively, you can schedule a free 30-minute consultation for personalised advice. Let Akyra solve your payment concerns, and ensure they never happen again.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.