Confusion about the Role of a Support Person

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.