Did you know that employees are entitled to have a support person present at any meetings about performance management, investigations, or disciplinary action?
Employees can find these kinds of meetings challenging and it is crucial to not only allow them to have a support person but to present them with the opportunity. Employees may not be aware they can have a support person at these kinds of stressful meetings. While its technically not the law to provide one and there is no obligation for you to offer a support person, the attendance of a support person is highly recommended for protection for both you and the employee.
This is because if things go south and you end up at the Fair Work Commission it can make a difference to your case when it comes to demonstrating procedural fairness you can read more on this here when it relates specifically to dismissals in one of previous blogs. These kinds of conversations can be very difficult for employees and impact their psychological welfare. It is therefore essential to help your employees at all times to have a psychologically safe and inclusive workplace.
Who can be a support person?
A support person can be another employee, a friend, a family member, a union representative or a union delegate. The employee has the right to decide who their support person is, and a support person cannot be decided by management. There have been cases taken to the Fair Work Commission where an employer has allocated a support person, and this is not viewed favorably. Imagine this, an employee chooses their union representative as their support person at a misconduct/dismissal meeting, and they are refused by the employer, and they offer one of the internal HR ladies instead!
It is also important to note that the support person cannot be directly involved in the situation. For example, it’s not appropriate for a witness in an investigation to be a support person for the person being investigated.
What does a support person do?
Generally, the support person is there to observe the meeting, making sure it is conducted fairly and be a physical emotional support for the employee.
A support person can:
- Provide practical and emotional support for the employee
- Ask for a break in the meeting to talk privately with the employee
- Take notes
- Ask questions about the process
- And a support person must keep all information discussed at the meeting confidential.
A support person cannot:
- Answer questions on behalf of an employee
- Disrupt the meeting
- Record the meeting on a listening device or mobile phone (without consent)
- Act as an advocate – a support person does not present or defend a case on behalf of the employee.
What do leaders need to do?
Leaders need to provide advance notice of meetings and should let the employee know they can bring a support person. According to the Fair Work Act there is no obligation to offer an employee a support person, however we recommend that it is a good idea to. I hear you asking, “but why should I offer them to have a support person if I don’t have to?” The reason is that in unfair dismissal hearings, the Fair Work Commission may consider if an employee was offered a support person when handing down decisions especially when it comes to procedural fairness.
However, you cannot unreasonably refuse a support person, as refusal of a support person is a breach the Fair Work Act and can be grounds for an unfair dismissal claim.
At the start of the meeting, it’s a good idea to let the support person know what their role is and what the boundaries are. I find that even if they have been a support person before it is still important to discuss this, it provides the support person a refresh and also helps the employee understand their role. You can even provide a handout if you like, but that means you would need to create one, but popping this in an email will assist to set the expectations prior to the meeting. You also need to be prepared to allow the support person to assist the employee in a reasonable manner.
Leaders can also have their own support person if it is expected that the meeting may be difficult or there could be complaints made about how the meeting is conducted. This can be an internal HR Representative or an external independent representative such as a consultant from a reputable company like HR Gurus.
In the meeting you need to:
- Be clear about the issues.
- Listen to the employee and provide them the opportunity to have their say and be heard.
- Make sure both parties have discussed and agreed on an outcome or solution together, including clear and reasonable steps to be undertaken.
- Record the meeting, attendees and outcomes, if the employee does not wish to have a support person record this too (I find this best to be done as meeting minutes in writing). We have a cool template to help you if you need one!
- Provide a copy of this to the employee and give them the opportunity to comment, such as where they believe additional information should be recorded or where things may be misrepresented.
What if the support person becomes difficult?
If a support person steps outside their role, if they become argumentative or are disruptive, you can pause the meeting and remind them that they are there for support only. They cannot advocate for, or speak on behalf of, the employee. You can always suggest a break so the support person can have a private discussion with the employee, this is always a great time for everyone to get another cup of coffee or a breath of fresh air.
You can always stop the meeting if the support person becomes too disruptive. You should then reschedule the meeting, but you can always suggest to the employee they use a different support person. But do remember to make a record of the meeting and note why it stopped early!
What if I need more help?
HR Gurus can help you by conducting investigations, coaching managers to hold performance discussions, acting as a business support person and developing a handout for support persons. We have amazing skill and experience across our team across all sectors. If you need a hand with anything like this just reach out, we would love to help.
Written by HR Guru Guinevere Missingham