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Disciplinary Meetings and Support Persons

​Recently we were asked "Is it mandatory for a support person to be present at a disciplinary meeting, and what do I do if the employee wants to delay the meeting because they don't have a support person?" 

The short answer to the first part of the question is no - it is not mandatory for the employee to have a support person present. It is however recommended that the employer advise them that they can bring a support person to the meeting if they wish. 

If there are serious or persistent concerns that you need to address with an employee, you should provide them with written notification (in advance) that you want to meet with them to discuss performance shortcomings and/or concerns about their conduct. You should also advise them at this point (in writing) that they have the option of bringing along a person to observe the meeting and support them. 

A support person will generally be a family member, friend or associate. While it is generally preferable from the employer's perspective for the employee to nominate someone from outside the workplace, they ultimately have the right to choose their own support person (with the exception that a support person should not be a lawyer acting in a professional capacity).  

The role of the support person is to act as an observer and also provide emotional support to the employee. It is not the role of a support person to respond on behalf of or advocate for the employee. It is recommended that at the beginning of each meeting at which a support person is present, the role of the support person is clearly explained. You shouldn't be telling this person that they cannot speak at all, but rather that their role is to support the employee emotionally, and should they or the employee require a short break during the meeting to privately discuss the content of the meeting or compose themselves, they may request such a break. 

It is also a good idea at the start of each meeting to advise all present that the matters being discussed are confidential. This is particularly important in cases where the support person is from within the same workplace.

So, what happens if the employee wants to postpone the meeting because they don't have a support person? 

Where circumstances allow, it is best to give adequate notice of the meeting so the employee has reasonable time in which to organise a support person, if they choose to have one present. Depending on the circumstances, we generally suggest a minimum of 24 hours notice. If the employee chooses to have a support person but hasn't been able to organise for them to be present at the nominated date/time, it will generally be the most appropriate action for the employer to agree to a postponement, particularly where not much notice has been given. To not do so may be seen by the Fair Work Commission as being unreasonable, which could count against the employer if termination of employment eventuates and is subsequently challenged. If sufficient notice of the meeting has been given and/or a postponement has already been granted, it should however in most circumstances be OK for the employer to advise the employee that the meeting will go ahead on a given time or date, regardless of whether or not a support person attends.

If you have disciplinary issues with an employee and are not sure what to do, feel free to call us and we can guide you through a procedurally fair process that will mitigate your risk.

This article provides general information only and may not apply in all cases. This information should not be regarded as legal advice. If you have concerns, you should seek advice relating to your specific situation.

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