In the modern workplace employers often face demands made by employees to have a "support person" present during certain processes associated with performance issues, investigative processes and disciplinary procedures.
That demand is often asserted as a right by the employee.
Here we seek to examine some considerations that employers should be mindful of in relation specifically to what support they may agree to, for employees in the workplace. Further it should be considered whether a standard approach is to be adopted or whether there is to be some flexibility in the approach.
There is always a legitimate concern that circumstances relating to performance or disciplinary matters, may lead to an unfair dismissal claim. Within the Fair Work Act 2009 a relevant consideration is the criteria for considering whether the dismissal was harsh, unreasonable or unjust. This is to be found, in part, in Section 387(d) which states:
"In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal"
There is Full Bench authority relating to this sub-section however this sub-section is not the whole story.
A prudent employer needs to consider and have a strategy in place as to whether the employee has a right to support, ranging from a representative described as an advocate, through to a support person who is no more than a silent witness.
You should consider whether there is a legal framework that guarantees "support" during workplace meetings. Who that person may be. The nature and the quality of that support.
Independent of whether an employee asserts an entitlement to be represented or supported, whether it's an investigative stage or a disciplinary stage, a prudent employer will have regard to;
- it's own past practice;
- whether such issues are addressed in any company Policy or Procedure that was being shared with the employee;
- whether there is any provision in the contract of the employment dealing with the right to representation or support;
- whether there is any relevant provision in any Enterprise Agreement or modern award;
- and as referred to above at section 387(d).
Where is it determined that support should be provided to employees, the extent of that support is not always clear.
In particular there is an important distinction that should be made between a "support person" and an "advocate". That distinction is more than simply one of title, as vastly different levels of influence and input into any meeting process can be ascribed between the two.
The role of a "support person" implies a function more in the nature of an observer to a process; somebody who might well take notes, bear silent witness to the way in which the process unfolds, and may prove to be a calming influence simply by the fact of their presence, but do not themselves participate. Conversely, the role of an "advocate" suggests a party with active participation in the process, someone designed to champion the cause of the employee and who may well challenge the reasoning or enquiries of the employer. The advocate takes on a representative role.
The Full Bench of the Fair Work Commission spoke on this issue in the case VATE v Debra de Laps  FWCFB 613 1. In that case, Ms de Laps was asked by her employer (VATE) to attend a meeting regarding her work performance. In a letter requesting that meeting VATE wrote:
"You may bring a support person if you wish. Please note that the role of the support person is to provide you with emotional support. The support person is not to act as your advocate and should not speak on your behalf."
The case turned on whether Ms de Laps was forced to resign as a result of the conduct of VATE, which amongst a number of other issues included their refusal to allow her an advocate.
The Full Bench held that such refusal (amongst other conduct of VATE) had not caused Ms de Laps to resign, and importantly that the right to a "support person" under the Fair Work Act 2 does not extend to a right to an advocate. The court asserted this quite clearly:
"Given that legislative provision [section 387(d)] and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness."3
Accordingly, unless there is some right recognised in the contract of employment, a company policy, or in an Enterprise Agreement, it is difficult to see how the permitting of an "advocate" is required.
Is the support person only to be utilised when a formal investigation is being conducted, or can an employee request a support person be present before they engage in any discussions about their performance or an occurrence in the workplace with their supervisors or managers?
In the Bluescope Steel case 4, this issue was considered, again in the context of section 387(d) and a key passage of the appeal decision is at paragraph 76 which provides:
"The criterion in s.387(d) of the Act in this case is concerned with whether there was any unreasonable refusal by BlueScope to allow Mr Agas to have a support person present to assist at any discussions relating to dismissal. The Commissioner failed to make a finding about this matter. He did, however, say that Mr Agas was not offered the opportunity to have a support person present at the discussion with Mr Jones on the evening of the 27 July 2013 incident. That of course is not the criterion set out in the Act. Mr Agas did not ask for a support person to be present at that meeting; nor was there any evidence that BlueScope at any time refused to allow Mr Agas - unreasonably or otherwise - to have a support person present at any discussions. The preparation of an incident report by an employee, at a time broadly coinciding with the occurrence of an incident, does not, it seems to us, invoke the provisions of s.387(d) of the Act in relation to the matters described by an employee in a report. That is, the preparation of a contemporaneous incident report would not ordinarily or necessarily be considered to be a matter involving discussions relating to dismissal."
From that clause we can draw the following points:
- It is for the employee to make the request for support and not for the employer to have to make an offer.
- The timing of the request needs to be carefully considered as the Full Bench noted the preparation of the incident report in time broadly coincidental with the occurrence of the incident does not it seems invoke Section 387(d) at least in terms of what needs to be described by the employee in the incident report.
- These were not discussions relating to dismissal.
However, again this is not the whole of the story. There may well be industrial instruments that are applicable and you need to carefully read any provisions in the instruments whether it is a modern award or an Enterprise Agreement that can impact on the right to be represented or supported.
Particularly, there are many instances where phrasing such as "union representative" can appear in Enterprise Agreements. That has a connotation of much more than a silent witness. Again, the employer's own policies may be quite conducive to having support persons available however may not define or delineate the perimeters of their role. Perhaps this is an area for review.
A request for support and its accommodation is not necessarily a disadvantage for an employer. It may be that the support person will be a calming influence in the meeting process and in that context their mere presence may be of assistance.
It may be that the support person can see the legitimacy of the employer's concerns and perhaps counsel the employee as to the possible error of their ways. It may be that the employer will need to exercise a discretion as to who is the support person, leaving aside a union delegate as that person may have a history of being aggressive in dealing with the employer e.g. a spouse who has been abusive by telephone calls about how their loved one is being dealt with in the workplace.
The support person attends as a guest on the employer's premises and should conduct themselves in a polite and courteous manner and if issues of confidentiality arise, then they should be prepared to give an appropriate undertaking not to discuss issues outside of that meeting room process. Again it may be that what is appropriate for one interview process is not appropriate across the board.
An employer would be imprudent if it was dismissive of requests for support or seeks to be too dictatorial in terms of the support person having to be solely a silent witness. The process of assistance may certainly be less than being an advocate however it may certainly be more than being completely silent.
1 Victorian Association for the Teaching
of English Inc v Debra de Laps  FWCFB 613.
2 Fair Work Act 2009(Cth), section 387(d).
3 Above n1, at para 52.
4 BlueScope Steel (AIS) Pty Ltd v Nejat (Paul) Agas  FWCFB 5993.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.