Support persons at disciplinary meetings: what councils need to know
By Paul Spoto, Associate, Legal & Workforce
No law expressly requires that support persons be allowed at any or all disciplinary meetings. The only requirement to enable an employee's right to a support person is in the Federal jurisdiction, the Fair Work Act, which governs procedural steps required as part of unfair dismissal considerations.
In considering whether a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must consider any unreasonable refusal by the employer to allow the employee to have a support person present to assist in any discussions relating to the dismissal.
Specific disciplinary processes and procedures that may apply to council employee's because of council procedures or policies or that may arise in a relevant Industrial Instrument, such as a Certified Agreement, may create specific and enforceable rights to a support person or representative during disciplinary proceedings.
Councils are advised to seek advice when an employee requests assistance from a union (union support person), as such a request may involve the exercise of a workplace right.
Unreasonable refusal
No specific provision exists in the Queensland Jurisdiction which covers council employee's. However, under the applicable Queensland legislation, the Industrial Relations Act 2016, the Commission must consider ‘any other matters the Commission considers relevant'.
It would be highly likely that a council’s unreasonable refusal to allow a support person to participate in discussions relating to the dismissal would be captured under that broad provision. In this regard, on balance, allowing a support person to be present during disciplinary meetings and processes that may result in the dismissal of an employee is a usual, if not normal, practice and the absence of this is likely to play a significant part in the Commission’s decision about the fairness or not of a dismissal.
Extent of obligation to reschedule disciplinary meetings
So, in terms of reasonableness, what about when an employee states they require a particular support person (for example, a Union Organiser) to attend a disciplinary meeting and the Union Organiser cannot attend the meeting at the scheduled time? Do you have to reschedule the meeting if you are requested to do so?
In Laker v Bendigo and Adelaide Bank Limited [2010] FWA 5713, the employee was dismissed for poor performance. The employee requested that the disciplinary meeting be rescheduled to allow for the attendance of a union representative. The employer refused to reschedule the meeting.
Lewin C held that the request for adjournment was not an unreasonable burden on the employer. The dismissal was found to be unfair because the conduct of the termination meeting was unreasonable.
So, what is reasonable regarding requests to reschedule the meeting?
With ‘reasonableness’ being such a subjective concept, the degree of burden placed on the employer (the council) is indicated as the test in such circumstances.
Whilst rescheduling the meeting once is generally not seen as unreasonably burdensome on an employer, requesting this be done on numerous occasions may well be. Things to be considered by councils are, for example, operational requirements, costs associated with the requested adjournment, and the impact on others, such as work teams and complainants in harassment and other grievances.
Clearly, councils must be accommodating should an employee request a rescheduling of a disciplinary meeting so that a particular support person can be present.
For example, this would not extend to waiting a significant period for a particular union representative’s return from leave.
It would also not apply to numerous last-minute cancellation requests for a scheduled disciplinary meeting because the support person states that other commitments have arisen.
Employee's choice of support person
What about the council offering a choice of someone else, such as someone from human resources, instead of the employee’s choice of support person?
Whilst it may appear reasonable to the council to offer an HR professional, for example, to undertake a support role for an employee in a disciplinary meeting rather than the employee’s nominated support person, a tribunal would likely see this as an unreasonable refusal of a support person.
In Resources v Federal Express (Australia) Pty Ltd T/A Fed Ex [2011] FWA 6230, the employer only allowed a human resources member to act as a support person for the employee.
Even though further disciplinary meetings were held both with and without a union representative present, the dismissal was held to be unreasonable because the employer did not sufficiently accommodate the employee’s English language difficulties in the disciplinary process, which were caused by the exclusion of the union representative from some of the meetings.
Whilst it is the employee’s role to request a support person to be present, it is good and recommended practice for the council to advise of the employee’s right to have a support person, in writing, in the letter advising of the disciplinary meeting.
Council is encouraged to do this, even though a case in Federal jurisdiction found that an employer did not deny the employee procedural fairness for not explicitly offering a support person but had not refused an employee who did not make the request for a support person.
Recommended approach by council
To summarise, it is important that councils acknowledge an employee's right to request a support person at a disciplinary meeting and reasonably accommodate the support person’s attendance. This should go further to proactively advising the employee in writing of this right.
If you have any questions about the obligations or expectations of a support person at meetings, please don’t hesitate to contact the Peak Legal team on 07 3000 2148 or at peaklegal@wearepeak.com.au.