Four key points to remember regarding support persons and disciplinary meetings …

Most employers are aware that an employee is entitled to a support person or representative in a disciplinary meeting, but they are not fully aware what role this person plays.  Getting it right in ensuring the employee knows what they are entitled to, what type of person is suitable, and allowing the support person to perform their role, will minimise the risk of a later claim that you got the process wrong … with all the messy and expensive consequences.

Four key points for an employer to keep in mind are:

1. Give the employee enough time to obtain a competent support person.An employer needs to not only tell an employee that they are entitled to a support person, but also make sure that the employee is told that it is in their interests to obtain a competent representative.  This entitlement is hollow unless an employee is given enough time to obtain a competent support person.  For example, an employer should not tell an employee late Friday afternoon that there will be a disciplinary meeting first thing Monday morning and that they are entitled to a support person at that meeting.  Realistically, the employer in this situation is limiting who the employee can have as their support person.
2. Record that the employee has been given the opportunity to have a support person present.  Where an employee chooses not to have a support person present at the disciplinary meeting, the employer should ensure that they make a note of that fact and also seek their reason.  This reason should also be included in the employer’s interview notes.
3. The purpose of the support person.  The support person is there to provide “wise counsel” and be an advocate for the employee.  This is in the context of a situation where the employee may not be able to think clearly without assistance from someone who is “on their side”.  The support person enables the employee to be heard effectively, which is an important requirement of natural justice.
4. Active participation.  As the purpose of the support person suggests, the support person is allowed to actively participate in the meeting on the employee’s behalf.  The support person is not present just to provide a witness for the employee, and therefore does have a speaking role.  The support person needs to be able to speak on behalf of the employee, intervene in the process and give explanations where necessary.

Understanding the role of an employee’s support person is an important aspect of getting the disciplinary process right – reducing the potential for legal fees and damages later.

In one case an employee was awarded $30,000 for the employer not following a proper disciplinary process which included failing to advise the employee they were entitled to a representative at the meeting.

In another case, an employer was found liable for refusing to allow the support person to play any part in the process except by way of emotional support to the worker.