Dismissal Interviews and the Role of Support Persons

10th May 2015

We all know that an employee is considered to have been unfairly dismissed if the Fair Work Commission is satisfied that the dismissal was harsh, unjust or unreasonable. However, how many of us really understand each criterion that the Commission applies in reaching a decision? In this ER Update I explain one of the most difficult criterion for employers, support persons.

Firstly, the good news is there is not an obligation on an employer to offer an employee an opportunity to have a support person attend an interview to decide whether to dismiss them from your employment.

The Explanatory Memorandum to the Fair Work Act when introduced into Parliament in 2008 stated:

“This factor will only be a relevent consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”

The Fair Work Commission has confirmed this approach on several ocassions since the commencement of the Act in 2009.

There are two key issues that arise from this:

1) When is it unreasonable (or reasonable) to refuse a request to have a support person present duing an interivew or discussion on work performance, and
2) The role of a support person in that interview or discussion.

It is not unreasonable to refuse a request where the participation of the support person would cause an unreasonable delay in proceeding or imposes unreasonable financial other burden on the employer. For example, the support person is not willing or able to attend a meeting at a particular location or within a reasonable period .e.g. 7 days.

It is not unreasonable to refuse a request for a support person where dismissal is not being considered. If the discussion is to warn or counsel the employee on performance then there is no need for anyone else to participate in the meeting.

Where a support person does attend an interview or discussion, the role may be limited to one of advice and emotional support to the employee. Unless you as employer agree, the support person does not act as an advocate presenting a defence on behalf of the employee. The employee is expected to speak on their own behalf unless there are circumstances making that impractical or unfair e.g. a mental or physical disability.

It is not unreasonable to refuse a request to have a lawyer acting in a professional capacity from participating in the discussion. Lawyers can get involved later if the employee lodges an unfair dismissal claim at the Fair Work Commission.

Union officials are normally allowed to participate as support persons but employers should be careful not to let them take-over interviews with employees. Many union officials will not be content to simply support the employee and often aggressively advocate the defence of the employee. There is nothing wrong with the support person speaking during such discussions, but it is always important for the employee to speak for themselves.

Conclusion

Notwithstanding the fact that you are not obliged to do so, we would usually recommend that employers offer employees the opportunity to bring a support person to an interview that may result in the dismissal of that employee. This ensures there is no subsequent debate on this issue after an employee is dismissed.

If you require further advice or wish to discuss the particular circumstances of your business please contact me advice@maguire.com.au or 03 9097 1771.