Bill Fitzgerald

AMMA members often express uncertainty about their legal obligations regarding employee interviews which may lead to formal warning or termination. Following a Fair Work Commission decision on ‘support persons’ in these interviews, AMMA principal employee relations consultant Bill FitzGerald clarifies employer responsibilities.

IN a recent decision from the Fair Work Commission, a Full Bench has clarified the common misconception that employers are obliged to allow a union advocate or lawyer to attend a discipline interview.

Despite providing six weeks’ notice of intentions to retire, the former employee of a English-teaching association brought an unfair dismissal application against the employer on grounds that she had not been afforded procedural fairness during the dismissal process.

The worker argued that in refusing her request for an advocate to attend a disciplinary interview about her performance and conduct, the employer acted harshly against her.

However, the bench found that the employer’s refusal of a support person for the employee was not unfair, because no right to have an advocate present existed.

The bench recognised that investigations and interviews of a disciplinary type can be stressful, making it appropriate that the ‘role of support person is to provide emotional support, not as an advocate’.

Implications for Employers

In decisions relating to allegedly harsh dismissal, the Fair Work Commission is expressly required under the Fair Work Act 2009 to take into account whether the employer unreasonably refused a request from an employee to have a support person present in discussions related to dismissal.

Whether employers are required to offer to employees the opportunity to have a support person present is a contentious issue. It is arguable that such a requirement is only formally triggered if the employee makes a formal request to have a support person present. That said, however, employers often include such a requirement in their internal employee policies as a matter of best practice.

The advantage of including a provision for support persons in a company policy is that it ensures compliance with section 381(2) of the Act and constrains the role of the support person to what the company stipulates in the policy.

For example, employers are free to specify in a policy that a support person’s role is for emotional support, rather than as an advocate, meaning the employee therefore has the obligation to personally answer any reasonable question the employer may ask.

The commission also has a wide power under s387(h) of the act to consider “any other matters” and the requirement for fairness is met if it can be demonstrated that the employee was offered a support person and that person was able to assist the employee.

With all of the above in mind, AMMA recommends that at the investigation stage, it is counter-productive to have an advocate present as the aim of the investigation is to initially establish facts on which conclusions can ultimately be made.

Additionally, internal policies that include the provision and role of the support person should be established by AMMA members, stipulating that managers must comply with the internal policy offering the option of a support person to employees in every case.

A basic outline of the reasons for an interview should be provided to the employee in advance, but there is no obligation for an employer to provide documentary evidence underpinning the issues of concern at this point.

To limit confusion, AMMA recommends that the role of the support person as emotional support person rather than acting as an advocate be reiterated or clarified prior to the commencement of the interview.

Refusal by an employee to have a support person present should also be recorded as part of the interview so as to avoid complications down the track.

Dismissal is often a complex and difficult path to navigate and AMMA members are encouraged to seek advice from our workplace relations experts. For advice or information, please contact your local AMMA office.

AMMA Training & Development also offers courses coaching supervisors and managers on how to negotiate outcomes in difficult situations with employees and manage potential conflict. Contact our Training & Development team on 1800 891 662 or e-mail [email protected] for more information.