Support persons, disciplinary/performance meetings and reasonable management action – employers top questions answered

There are many factors the Fair Work Commission considers when determining if a dismissal was unfair. One consideration is if the employer unreasonably refused the employee to have a support person present.¹ This can also impact whether an employer can successfully claim that they have taken “reasonable management action” in defending a claim for workers’ compensation following psychological injury.

How this works in reality can be difficult for employers.

In this article, Special Counsel, Adele Garnett and Associate, John Hickey answer the most common questions we are asked by employers in regard to support persons.

We’ll cover: 

• do employers have to offer a support person;
• can employers refuse a particular support person; 
• can an employee delay a meeting to have their preferred support person; and 
• how to manage an “overly enthusiastic” (or obstructive) support person.

Do employers have an obligation to offer a support person to an employee?

There is no positive obligation under the Fair Work Act 2009 (Cth) (FWA) on employers to offer an employee a support person in dismissal discussions² – the obligation is to not unreasonably refuse if an employee requests to bring a support person. If there is no positive obligation, should employers offer them to employees?

There are three reasons why an employer should offer a support person for disciplinary/performance meetings even though it is not specifically required:

1. It is generally seen as best practice and fair to provide employees with the opportunity to have external support in important employment related discussions. These discussions can be very stressful for employees and a support person can assist, particularly where an employee is or may become upset. Therefore, offering a support person will also assist an employer in claiming that they have taken reasonable management action if defending a workers’ compensation claim.³
2. In the unfair dismissal case of Jimenez v Platypus Pty Limited⁴ the employer was heavily criticised, even though the employee had not requested a support person. The circumstances were that the employee was not informed of the purpose of the meeting which was set up by the employer to discuss allegations of serious misconduct. In fact, the employee was led to believe that the meeting was to give good news. The Commission held that as the employee was not aware of the reason for the meeting, he did not request a support person, when he may have if he appreciated the seriousness of the situation. By actually making the offer, an employer avoids being questioned in relation to support persons in any unfair dismissal application.
3. Offering a support person provides the employer with an opportunity to inform the employee who will be acceptable as a support person. This allows an employer to refuse any unsuitable person – which leads to the next question we are frequently asked. 

Can an employer refuse a particular support person?

Yes, and the unfair dismissal case of Trembath v RACV Cape Schanck Resort⁵ provides some guidance as to when it would be considered “reasonable” to do so. In this case, Ms Trembath asked a co-worker to be her support person in a meeting to discuss allegations of serious misconduct against her. However, the employer refused to allow the nominated support person as the co-worker had been involved in the overall matter and this would present a conflict of interest.

Commissioner Wilson agreed that this was a “reasonable” refusal of the employee’s preferred support person. At the time of the refusal, the employer offered to either delay the meeting, or stated that she could have a “Mr Roche” as her support person. Ms Trembath agreed to have Mr Roche.

Interestingly, Commissioner Wilson expressed more serious concerns over the choice of Mr Roche, as he was a management representative who was significantly involved in the dismissal process. The Commissioner commented, “By no means could he be regarded as someone who would give Ms Trembath “support” in any of the capacities implied by that word; whether as an advisor, counsellor or representative”.

While Commissioner Wilson did not make a finding that the employer unreasonably refused Ms Trembath a support person on this basis, there are two lessons in this case:

1. It is not unreasonable to restrict co-workers from being support persons, particularly if they have (or will potentially have) any involvement in the matter at hand (e.g. as a witness where their evidence be influenced). In many situations, it is best (and not unreasonable) not to have co-workers involved, simply from a workplace confidentiality point of view; and
2. It is rarely, if ever, a good idea to have management involved as a support person as they are unlikely to be able to actually provide the support an employee needs in these situations and would likely have a significant conflict of interest.

So how should employers manage an employee’s support person choice? Ideally, the employee should be informed upfront of any restrictions with their support person (e.g. not someone who might be a witness, not a co-worker) to avoid delays or controversy. The employee should also be requested to advise in advance who their support person will be, so that any issues can be addressed prior to the meeting. If an inappropriate support person is presented, the employee should be given a reasonable amount of time (in most situations a day is likely to suffice) to find an alternative should they wish to.

Can an employee delay a meeting to have their preferred support person? 

Essentially, in most instances, a short delay should be agreed to.

In the recent case of MacDonald v Whitehaven Coal Mining Ltd⁶, an employee who was unreasonably refused a short delay to allow a particular support person to attend a meeting was held to have been unfairly dismissed despite their being a “valid reason” for dismissal. 

In that case, the employee was given one days’ notice to attend a meeting and to respond to a show cause letter in relation to a safety breach.  A two-day extension was sought to allow a union support person to attend the meeting and to assist in responding to the show cause letter, but these requests were denied by the employer.  The Commissioner found that the extension request “was not an unreasonable request” and to "unilaterally proceed to terminate the [worker] without a response to the show cause letter based on the unavailability of [his] legal representative displays a lack of procedural fairness".

Another recent case, Mizzau and TNT Australia Pty Ltd⁷ supports this, particularly where the meeting is not urgent.

In Mizzau, the employee suffered work-related mental illness following a meeting in relation to performance issues. After requesting one or two days to organise for the employee’s preferred support person to attend, his manager formally directed him to attend the meeting under the threat of disciplinary action. Under pressure, the employee attended the meeting that day without a support person.

Deputy President Constance concluded, “Just as the [employer] considered that it was appropriate that it have two representatives at the meeting, so it was appropriate that [the worker] have a support person with him”.  It was held that neither the performance review meeting nor the decision to place the employee on a performance improvement plan were reasonable without affording the employee a support person of their choice in the meeting, particularly considering the alleged issues had been occurring for some time.  The employee’s claim for workers’ compensation was allowed. 

The learnings from these cases are that, absent any extenuating circumstances, employers should be flexible and accommodate requests for short delays to allow an employee’s preferred support person to attend a meeting. If, however, there is a lengthy delay requested, or the meeting is urgent, the employee should be informed that the delay cannot be accommodated and an alternative support person should be arranged.

How to manage an “overly enthusiastic” (obstructive) support person

The Fair Work Commission cases do not provide a great deal of guidance on the role of a support person, other than to say that they are “not an advocate”.⁷ Generally, it is reasonable to expect a support person to:

• take notes;
• assist with clarifying the process, questions asked, or responses given; and
• quietly prompt or give advice to the employee, including requesting a break if needed;

but only to the extent that their input doesn’t overly disrupt the meeting.

As a first step to managing their presence, a support person should be acknowledged and be reminded that their role is as a support person, not as an advocate. It is also important to remind them of the need for confidentiality.

Some recommendations for managing an overly enthusiastic support person include:

• If at any point the support person appears to be advocating or is becoming obstructive, they should be reminded that they are “here for support only, and not to be an advocate”. They could also be offered a short break (e.g. about 5-10min) to confer.
• If the support person starts answering for the employee (beyond what is helpful/clarifying), another strategy might be to say, “I need [the employee] to answer this”.
• If they become too obstructive, the support person should be warned that if they continue to advocate, they will be asked to leave. 
• As a last resort, if the behaviour continues, the support person should be asked to leave the meeting on the basis that they are being obstructive, and not carrying out the role of the support person. The meeting can then continue with the employee (perhaps after a short break to allow the employee to “regroup” if required). If the employee objects to continuing, it will depend on the circumstances as to how this should be handled – for example, whether the employee should be given an opportunity to locate an alternative support person, whether the meeting should proceed, or whether the employee should be given the alternative to respond in writing. 

To the extent that a support person is not being obstructive or difficult, it is generally advisable to allow some leeway on advocating during disciplinary meetings, particularly since there are some situations where it is easier to communicate with a reasonable advocate than a difficult employee. In the vast majority of situations, having a support person involved does not present any additional difficulties and can actually assist.

For further information on workplace investigations and disciplinary meetings, refer to our previous articles Misconduct investigations: our top tips and Do employees have a “right to remain silent” in employment investigations? or contact our Workplace and Employment team.

¹ Section 387(d) Fair Work Act 2009.

² See the Explanatory Memorandum to the Fair Work Act 2009, paragraph 1542.

³ Mizzau and TNT Australia Pty Ltd [2021] AATA 74.

⁴ [2016] FWC 5141.

⁵ [2017] FWC 4727. 

6 [2021] FWC 838 (24 March 2021).

⁷ [2021] AATA 74.

 ⁷ Victorian Association for the Teaching of English Inc v de Laps [2014] FWCFB 613.