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Understanding the “support person”

18 April 2016

Here are 5 quick things you should know when dealing with an employee’s “support person”:

1. Don’t unreasonably refuse employee’s request

In the context of an unfair dismissal claim, an employer must not unreasonably refuse the employee to have a support person present to assist at any discussions relating to the employee’s dismissal: section 387(d) of the Fair Work Act 2009 (FW Act). In most cases, section 387(d) of the FW Act will be triggered if the employee asks to have a support person present, and the employer refuses that request. Nevertheless, best practice when conducting a meeting that could lead to the employee’s dismissal, is for the employer to offer the employee the opportunity to have a support person present at the start of the meeting.

2. Support person is not an advocate

Absent any policy or other obligation (such as under an enterprise agreement), the FW Act does not entitle an employee to have a lawyer attend a dismissal meeting as their support person: Victorian Association for the Teaching of English Inc v Debra De Laps [2014] FWCFB 613.

3. Support person is not required when completing incident report

If an employer simply interviews an employee for the purposes of completing a safety incident report, absent a policy or other requirement, the employer will not be breaching section 387(d) of the FW Act if it does not give the employee the opportunity to have a support person present: Bluescope Steel (AIS) Pty Ltd v Nejat (Paul) Agas [2014] FWCFB 5993.

4. Support person must keep matters discussed confidential

A support person is obliged to maintain confidentiality during disciplinary investigations. Specifically, the support person should be told that an investigation into issues to do with an employee’s work performance or behaviour are private matters between the employer and employee, and the confidentiality of those processes should be respected at all times: CFMEU v MSS Strategic Medical and Rescue (“MSS”) [2014] FWC 4336.

5. Answers to be provided by employee; not support person

A support person might unreasonably interrupt a meeting, or try and answer questions put to an employee during discussions relating to the employee’s dismissal. The support person should be told not to interrupt, and that the employee is expected to answer the questions, and if they fail to do so, the employer will make a decision based on the information available to it.

Like to discuss further or need assistance preparing for a meeting? Contact Pamela Flynn (Director) on 0420 362 579 or email pflynn@hintonflynn.com.au

The content of this article is general in nature and is not intended to and should not be relied on as a substitute for legal advice which is specific to your circumstances.

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