The support person: advocate, colleague or silent witness?

We are commonly asked about boundaries when an employee brings a support person with them to a performance management, termination or redundancy meeting. The general rule is that, if the meeting will lead to a termination of employment, the employee is able to bring a support person along. It’s not a requirement; rather it’s an option for the employee that should be offered when organising the meeting.

The support person is there to assist the employee by witnessing the meeting, taking notes and conferring with the employee after the meeting. Importantly, the support person is not there to answer on the employee’s behalf or advocate for the employee.

Performance management

While it’s certain that a termination or redundancy meeting will lead to dismissal, the situation is less clear when the meeting is about performance or disciplinary action. Usually, the outcome of a performance management meeting is unknown until the process is complete. The purpose of the meeting is to flag issues that may lead to dismissal, rather than to foreshadow the employee’s imminent termination. In this case, it may be prudent to suggest the employee brings a support person anyway, even if it is not strictly required or the process may not ultimately lead to dismissal.

Employer ‘support person’

It is useful to have a witness in a performance management, disciplinary action or termination meeting. They may simply be there to take notes of the meeting or support your version of events. It is not uncommon for a disgruntled employee to claim bullying, harassment or to attack the process. If you have a second witness and contemporaneous notes of the meeting it is much more difficult for an employee to sustain any such claims.

Confidentiality

In a recent Fair Work Commission decision, a support person forwarded an email about an internal disciplinary investigation to the CFMEU and other work colleagues. The employer said that this amounted to a breach of confidentiality, and issued a final written warning. In a decision about whether the warning was appropriate, Commissioner Gregory found that the employee was not told that the disciplinary investigation information was confidential but, in the circumstances, a warning was still necessary.

Support person tips

  • Ask the employee if they would like a support person in the letter or email advising them of the meeting.
  • Tell the support person that everything related to the meeting, and the process, is confidential and must not be distributed.
  • Ask the support person to take notes during the meeting, and confirm the boundaries of their role at the outset. Suggest that they request a short break in the meeting if they want to clarify anything with the employee.
  • Consider inviting an ‘employer’ support person to all take notes and witness the meeting.

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