As an employer you will probably at some stage need to undertake a disciplinary process with an employee.
The disciplinary process may already be a daunting task for some employers, more so when a union official or lawyer attends the meeting with the employee.
To ensure that you do not expose yourself or the company to the risk of a claim, it is important that you understand how to conduct the disciplinary process, in particular the circumstances in which a person can attend the meeting as a representative or a support person and the difference between the two roles.
What is a support person?
A support person is an individual chosen by an employee to attend a meeting to provide emotional support, act as a witness and, if needed, to take notes of the discussion.
The support person remains independent of the disciplinary process and generally the employer is not required to allow them to advocate or speak on behalf of the employee at any stage of the meeting. If the support person seeks to go beyond this limited role, by seeking to speak on behalf of the employee or intervene in the process, the employer may ask the support person to leave or may adjourn or refuse to proceed with the meeting with them present.
It is prudent for the employer to require the employee to provide the name of their elected support person prior to the scheduled meeting.
Generally, unless the support person is a witness relevant to the matters being dealt with or is otherwise for proper reasons not a suitable support person, the employer should allow the employee the opportunity to have a support person be present during the meeting. Further, the employer should provide a reasonable amount of time for the employee to organise a support person to attend the meeting.
What is a representative?
Sometimes the employee has a legal entitlement to have a representative, for example under some Modern Awards, Enterprise Agreement or other industrial instrument. For example, clause 37A.5(d) of the Clerks – Private Sector Award 2020 provides an employee in a disciplinary process has the right to be represented by a workplace delegate.
Unlike a support person, a representative of an employee subject to a disciplinary process can advocate and speak on behalf of the employee and is not limited to providing emotional support or taking notes during the meeting.
Why allow a support person or representative?
One of the many factors considered by the Fair Work Commission in determining whether an employee was unfairly dismissed is whether the employer had unreasonably refused the employee to have a support person present at any discussions relating to the dismissal.
By unreasonably refusing an employee the right to have a support person at a meeting, an employer will expose themselves to a risk that the employee was not afforded procedural fairness.
Where a union official attends the meeting, whilst an employer can inquire as to the role of the union official invited by the employee to attend the meeting, if the union official purports to act as a representative of the employee and not as a support person, the employer should exercise care before refusing the representation and ultimately terminating the employment or subjecting the employee to other disciplinary action.
The scenario above was considered in Vong v Sika [2010] FMCA 1021, where an employee attended a disciplinary meeting with his union official. When the union official refused to sign a document which required him to act as a support person, the employer adjourned the meeting and told the union official to leave the premises.
The same continued for the next two meetings and during the third meeting, the employee was provided with a letter of termination. The termination was disputed by the employee and he was successful in his claim (with the company ordered to reinstate the employee, provide compensation and pay a penalty) on the basis that the employer had refused the employee his right to be represented by a union official.
It is important to have a clear understanding of the rights of employees during a disciplinary process as unreasonably refusing an employee their support person or in some instances, a representative, at disciplinary meetings may expose the company to risks of claims and penalties.
If you have any questions on whether an employee is entitled to be represented or any other questions about a disciplinary process, please contact MDC Legal on (08) 9288 4000 or via [email protected] for advice.
