Employers usually know that they have to allow an employee to have a support person accompany them whilst they are being counselled. However, what is less clear is the role of that support person in the meeting.
Last week, the Full Bench handed down a decision that clarified what the role of the support person is. Simply put they are not there to act as an advocate. The role of support person is to take notes on the employee's behalf and to act as a sounding board for the employee, but their role is not to extend any further than that.
This is different where there is a union representative involved. A union representative, is able to intercede on behalf of employees, however this must be done appropriately and respectfully.
If a support person insists on being an advocate, you are entitled to curtail the meeting, explain the process and give them another opportunity. If an employee lacks the ability to properly communicate through a meeting for example they may have language or disability issues, then it would be seen as fairer to allow someone to advocate on their behalf.
In the case concerned, the Full Bench decided that an Executive Director who was undergoing disciplinary counselling was entitled to have a support person but not entitled to have an advocate on their behalf in their meeting.
We always recommend that employers in the letter inviting the employee to the final disciplinary meeting have a statement to the following effect:
Then you have clear evidence of your compliance with that practice. If an employee chooses not to bring one then proceed regardless. However if an employee wants to delay a meeting by a day or so to have one present, it can be risky to refuse such a request and press on. However, the Full Bench went on to say that a request by an employee to delay the meeting for four days in order to have someone available was unreasonable and the employer did not have to agree to it.
For further information please contact:
Warwick Ryan, Partner
Phone: +61 2 9233 5544
Email: wpr@swaab.com.au
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.
