Business Toolbox

Employers may need to host disciplinary meetings with an employee or employees from time to time to address performance and/ or conduct issues.

These meetings can cause the employee stress and unease especially if the employee feels their job is under threat. A support person may assist with reducing any anxieties experienced by the employee.

Who is a ‘support person’

An employee has the right to bring a support person to a disciplinary meeting. This may be (but not limited to) a friend, family member, mentor, union representative, or other person of the employee’s choice.

CCIWA Employee Relations Adviser Amanda Streeter says it's vital that employers don't unreasonably deny an employee’s choice of support person unless there are clear grounds for doing so, such as a conflict of interest[1].

"If a particular support person is refused, we highly recommended you document your reasons for doing so," Streeter says.

"The Fair Work Act 2009 provides an employer must not ‘unreasonably refuse’ an employee to have a support person[2]. While this doesn't impose a positive duty on employers to offer or remind the employee of their right, it is considered best practice and can be helpful if an external claim is received."

Setting the scene

Streeter says that when you're scheduling the meeting, it might be advantageous to advise the employee who would or wouldn't be considered an acceptable support person and request them to advise who (if anyone) will be attending the meeting with them.

This provides an employer an opportunity to arrange technology (for example, a conference phone should the support person be in a different location) and address any issues prior to the meeting.

At the start of the meeting, all parties should be informed of the support person’s role. This may include:

• Providing the employee moral and emotional support but not advocate on behalf of the employee;
• Taking notes on behalf of the employee;
• Asking clarifying questions to aid the conversation; and
• Requesting meeting breaks.

In addition, all parties should be reminded of any confidentially requirements.

Tips for managing an obstructive support person

From time to time, an employer may need to manage an overly enthusiastic support person.

Should this occur, the following steps may be used to manage the behaviour:

• Remind the support person of their role as outlined above and offer a short break (5-10 minutes).
• Recognise the support person wishes to assist, but remind the parties that the employee needs to respond to the query — for example “I need [employee’s name] to answer this please”.
• If the above does not work or the behaviour becomes overly obstructive or inappropriate, the support person should be warned if the behaviour continues, you may require them to leave the meeting
• As a last option and only in extreme circumstances, you may ask the support person to depart the meeting as they are not behaving as a support person. If this occurs, the employee should be consulted if they are comfortable to continue without a support person. If the employee isn't comfortable, it may be appropriate to reschedule the meeting in order for the employee to locate an alternative support person or putting the concerns to the employee in writing.

"You, as the employer, should make a written record of any disruptive behaviour and meeting breaks taken," Streeter says.

Key takeaways

• Remind employees of they have right to have a support person of their choice at disciplinary meetings (if they wish to have a support person present).
• Address any reasonable refusal of a particular support person early.
• Outline the role of a support person at the start of the meeting.
• Take action early to address any inappropriate behaviour displayed by the support person.

If you require assistance, we're here to help. Contact the Employee Relations Advice Centre on (08) 9365 7660 or email [email protected].

[1] Trembath v RACV Cape Schanck Resort [2017] FWC 4727

[2] Fair Work Act 2009 (Cth) s387(d)