Support Persons at Work: Employer Obligations
When managing performance concerns, misconduct allegations or disciplinary processes, employers are often unsure about the role of a support person or how to handle requests from employees to bring a support person to a workplace meeting.
While support persons are not required in every workplace meeting, employers should understand when permitting a support person is appropriate and the risks of refusing a reasonable request.
Here are seven important things employers should know.
1. What is a Support Person?
A support person is someone who attends a workplace meeting to provide emotional support to an employee.
Support persons commonly include:
- A colleague
- A friend
- A family member
- A union representative
- Another trusted person chosen by the employee
Importantly, a support person is generally not there to advocate on behalf of the employee, answer questions for them, or disrupt the meeting. Their role is typically limited to providing support and assistance during what may be a difficult conversation.
2. Do Not Unreasonably Refuse A Request for a Support Person
An employer has no positive obligation under the Fair Work Act to offer an employee the opportunity to have a support person.
However, employers should give serious consideration to a reasonable request for a support person, particularly when the meeting may result in disciplinary action or termination of employment.
Refusing a reasonable request may create unnecessary legal risk and can be relevant if an unfair dismissal claim is later made.
3. A Support Person Is Not an Advocate
Many employees assume a support person can actively participate in a meeting, argue on the employee’s behalf or challenge management decisions.
This is generally not the case.
A support person’s role is primarily to provide emotional support, take notes and help the employee understand what is being discussed.
Unless an employment contract, workplace policy or enterprise agreement provides otherwise, an employee is not automatically entitled to have a lawyer, union official or other representative act as an advocate during a disciplinary meeting.
Employers should clearly explain the support person’s role before a meeting begins to avoid misunderstandings.
4. A Support Person Is Not Required for Every Workplace Discussion
Not every workplace meeting requires the attendance of a support person.
However, employers should generally consider allowing a support person where meetings involve:
- Allegations of misconduct
- Performance management concerns
- Workplace investigations
- Potential disciplinary action
- Discussions that may result in termination of employment.
Allowing a support person is often a simple and practical way to support procedural fairness.
5. Can An Employer Refuse a Particular Support Person?
In some circumstances, yes.
Examples may include circumstances where the proposed support person:
- Creates a conflict of interest
- Has been involved in the matters under investigation
- Is likely to disrupt the meeting
- Presents a genuine safety or confidentiality concern.
Where an employer has concerns, it is generally preferable to discuss those concerns and allow the employee an opportunity to nominate an alternative support person.
6. Confidentiality Matters
Disciplinary investigations and workplace complaints frequently involve sensitive and confidential information.
Support persons should be reminded that they are expected to maintain confidentiality regarding matters discussed during meetings and investigations. They may, in some circumstances, also be asked to sign a confidentiality undertaking.
Ensuring confidentiality protects:
- The integrity of the investigation process;
- The privacy of employees and witnesses;
- Workplace relationships; and
- The employer’s legal interests.
A clear statement about confidentiality at the commencement of the meeting can help avoid future issues.
7. The Employee Must Answer the Questions
A support person may provide assistance and support, but they should not answer questions on behalf of the employee or disrupt the meeting.
If a support person attempts to dominate discussions, employers can politely explain that:
- Questions are directed to the employee;
- The employee is expected to provide their own responses;
- The support person may confer privately with the employee if necessary; and
- The meeting must proceed in an orderly and respectful manner.
Maintaining these boundaries helps ensure procedural fairness while allowing the employer to obtain the information needed to make informed decisions.
Practical Tips for Employers
To minimise legal and employee relations risks, employers should:
- Inform the employee in advance if a meeting may involve disciplinary issues
- Inform the employee that they may bring a support person
- Explain the support person’s role at the start of the meeting
- Keep clear records of discussions and decisions
- Obtain legal advice where serious misconduct or termination is being considered.
A fair, well-documented process can significantly reduce the risk of unfair dismissal and other employment-related claims.
Need Advice on Managing Workplace Meetings?
HintonFlynn Legal advises employers on performance management, workplace investigations, disciplinary processes, unfair dismissal claims and general workplace relations issues.
If you need assistance preparing for a sensitive employee meeting or managing a workplace dispute, contact Pamela Flynn, Director, for strategic workplace relations advice.