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Can a support person attend a performance meeting?

This question was recently sent to our Workplace Advice Line.
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Can a support person attend a performance meeting?

Can a support person attend a performance meeting?

8 October 2020

Should employees be offered a support person at meetings to discuss poor performance?

This question was recently sent to our Workplace Advice Line.
Q Management recently had a meeting with an employee to discuss his poor performance. It was intended as a verbal discussion and counselling session with some actions required for improvement. The manager who conducted the meeting noted the employee did not have a support person present. The employee was not given a written or verbal warning as a consequence of the meeting.

Should we offer an employee a support person if no official warning was given to the employee?
A The relevant provision in the Fair Work Act (s387(d)) is not based on an employer offering an employee a support person; rather, it is 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 employers notify employees they can bring a support person. While this is not strictly required under the Act, it is a matter of good practice.  
In determining the harshness or unfairness of a dismissal, the Fair Work Commission is required by the Fair Work Act (s387) to consider a number of criteria, including any unreasonable refusal by an employer to allow a support person to be present at discussions relating to dismissal. Refusing an employee’s reasonable request for a support person may lead to a finding a dismissal was harsh.
In meetings or discussions which 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 major workplace changes.

See Victorian Association for the Teaching of English Inc v L [2014] FWCFB 613.

Support person not an advocate

The Fair Work Commission 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.

In this matter (CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336), the commission determined that when a union official is involved in a dispute or disciplinary meeting all parties should be clear as to what role the official is fulfilling – a union representative or a support person. As a support person the role is one of support and acting as a witness, not advocacy, and appropriate confidentiality applies to the proceedings.

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

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