Employers must understand the purpose and importance of a support person in workplace processes, particularly in disciplinary or performance-related meetings. A common question arises: Should employees be offered a support person even if no formal warning is issued or planned? This article clarifies the role of a support person and outlines best practices for employers.

 

Legal framework

The relevant provision in the Fair Work Act (s 387 (d)) is not based on an employer offering an employee a support person; rather, it constitutes a breach of the Act if the employer unreasonably refuses an employee’s request for a support person to be present at the meeting.

The Fair Work Commission, however, recommends that employers notify employees that they can bring a support person to the meeting. While this is not strictly required under the Act, it is a matter of good practice.  

 

Why it matters

In determining the harshness or unfairness of a dismissal, the Fair Work Commission is required by the Fair Work Act (section 387) to consider several criteria, including any unreasonable refusal by an employer to allow a support person to be present at discussions relating to the dismissal. Refusing an employee’s reasonable request for a support person may lead to finding a dismissal was harsh.

In meetings or discussions that relate to the potential termination of employment, employers should also:

  • not refuse an employee’s request to have a support person present

  • clearly explain a support person's role

  • allow a support person to ‘assist’ an employee – for example, an employer should not tell a support person ‘you are not to say a word’, but do not allow the support person to act as an advocate or talk on an employee’s behalf, and

  • be aware of other obligations regarding support persons that may arise under applicable industrial instruments, for example, employees’ rights to appoint representatives during consultation about significant workplace changes.


What a support person can and cannot do

The Fair Work Commission has emphasised that a person acting in the role of support person should be aware of the confidences involved and not act as if the role were that of an advocate, such as acting as a union delegate.

As a support person, they may assist an employee during discussions, which may include talking to the employee and helping them with what to say, speaking during discussions to provide advice, and taking other supportive actions such as taking notes and/or assisting with an employee’s preparations. They are not an advocate who speaks on behalf of the employee. 

 

What is the role of union representation as a support person?

When a union official is involved in a matter, it should be clear whether they are acting as a union representative or a support person, and what behaviour is appropriate in each role. They may make comments or ask questions regarding the process; however, the employee must answer all direct questions related to the matter. It is not the union representative's role to provide evidence on behalf of an employee or to defend them against allegations.

A representative may advocate on an employee’s behalf during consultations about change or discussions concerning dismissal.  


Who can be a support person?        

  • A friend 

  • Family member 

  • Another employee, provided there is no conflict of interest.

  • Union official 

  • Lawyer 

 

When should a support person be offered? 

A support person should be offered in any formal meetings related to disciplinary matters and consultation regarding workplace changes, including but not limited to meetings about performance, conduct, investigations, and any discussions concerning dismissal. 

 

The bottom line

An employer breaches the Fair Work Act if it unreasonably refuses an employee's request for a support person. The Fair Work Commission recommends that employers notify employees that they can bring a support person to any disciplinary or counselling meeting.