Support person FAQs

What is a support person?

A support person attends difficult meetings (such as disciplinary meetings) with an employee, primarily to provide emotional or moral support.

Often the support person will also take notes and act as a witness to the meeting on the employee’s behalf.

What should a support person not do?

Generally, a support person is there to support the employee, not act as an advocate.

A support person should not speak on behalf of the employee during the meeting or try to take over the running of the meeting.

In some situations, it might be appropriate for a support person to take a more active role, such as assisting the employee to prepare a response to an allegation or providing advice to the employee during the meeting.

However, the meeting must still be with the employee, rather than with the support person acting on behalf of the employee.

Does an employer have to offer a support person?

Employers are generally not required to offer an employee a support person.

However, in an unfair dismissal claim, an unreasonable refusal by an employer to allow the employee a support person may result in a finding that the dismissal was unfair.

It is therefore advisable for an employer to offer an employee the opportunity to have a support person attend any meeting where dismissal could be an outcome.

It is also good practice from an employee welfare perspective to offer a support person where a meeting could be upsetting or confronting for an employee.

Can an employee choose who to have as their support person?

Yes, within reason.

An employee is usually entitled to have a support person of their choice unless there is a very good reason for the employer to refuse. Reasons for an employer to refuse a particular support person include where:

• there is a conflict of interest, such as where the person is otherwise involved in the disciplinary process or is a witness in an investigation involving the employee,
• the person is unavailable to attend the meeting within a reasonable timeframe, or
• the person has been disruptive during meetings in the past and is likely to do so again.

Can a union representative or lawyer be a support person?

Yes, if the person is genuinely there to provide support, rather than act as an advocate.

If there is a concern that the chosen support person will go beyond the boundaries of the support person role, it is advisable for the employer to clearly explain the scope of the role before the meeting to minimise the potential for misunderstandings.

Workplace delegates

Most employees have a right under the Fair Work Act, an award or an enterprise agreement to representation by a union workplace delegate during disciplinary processes.

If a person attends a disciplinary meeting with an employee in their capacity as a workplace delegate, then they are allowed to take a more active role than simply providing support. This may include speaking on behalf of the employee at times or providing advice to the employee during the meeting.

However, the requirements not to take over or disrupt the meeting remain.

What happens if the support person starts disrupting the meeting?

It is a good idea for the employer to clearly explain the support person’s role before the start of the meeting.

If the support person goes outside their role and becomes disruptive, it will generally be appropriate to pause the meeting, restate the role of the support person and explain that if the disruption continues, the meeting will need to be adjourned.

If the support person continues to disrupt the meeting, it may be necessary to halt the meeting and reschedule a new meeting with an instruction to the employee to bring a different support person.

Key take aways

• It is best practice for an employer to offer an employee the opportunity to have a support person with them during a difficult meeting.
• A support person is there to provide moral and emotional support, not to act as an advocate. Union workplace delegates may participate more actively.
• The support person should be made aware of the scope of their role before the meeting. If the support person becomes unreasonably disruptive during the meeting, the employer can reiterate the scope of the role and if that does not work, adjourn the meeting until the employee can find another support person.