In determining whether an employee’s termination was harsh, unjust or unreasonable, s 387 of the Fair Work Act 2009 (Cth) (FW Act) provides a list of criteria the Fair Work Commission (FWC) will consider. One such criterion is whether there was any unreasonable refusal by the employer to allow the person to have a support person present in any discussions relating to dismissal.
Best practice
Best practice for affording an employee procedural fairness in a disciplinary or termination process is to advise the employee that they can bring a support person to meetings where their ongoing employment will be discussed. Usually this is another employee, a family member or union representative.
Employers should not unreasonably refuse to allow the employee to have a support person at the meetings.
Case study
In the recent case of Trembath v RACV Cape Schanck Resort [2017] FWC 4727, the FWC considered the refusal to allow a particular support person and who should or should not be a support person.
Ms Trembath was employed as a Retail Supervisor in a golf retail store at RACV Cape Schanck Resort (the Employer). The Employer had concerns regarding Ms Trembath’s compliance with its Cashiering Policy and her conduct following a till discrepancy. The Employer invited Ms Trembath to a meeting and advised her that she was welcome to bring a support person to the meeting.
Ms Trembath asked a co-worker to be her support person. However, just before the meeting, the Employer advised the support person that she could not be Ms Trembath’s support person as they worked together. The Resort Manager contacted Ms Trembath and offered to reschedule the meeting or alternatively, offered that he be her support person. The meeting proceeded with the Resort Manager present, and Ms Trembath’s employment was terminated.
At the FWC, the Employer explained that it considered there to be a potential conflict of interest for the Ms Trembath’s nominated support person to be present at the meeting. The FWC held that this explanation was reasonable and acceptable given that Ms Trembath’s nominated support person had some involvement in the matter.
However, the FWC commented that it was not appropriate for the Resort Manager to be Ms Trembath’s support person and that there was a bigger conflict of interest with the Resort Manager attending the meeting as he had signed the Ms Trembath’s termination letter. The FWC stated:
By no means could he be regarded as someone who could give Ms Trembath ‘support’ in any of the capacities implied by that word; whether as an advisor, counsellor or representative.
The FWC held that the Employer and the Resort Manager should not have allowed for the Resort Manager to be a potential support person for Ms Trembath.
Despite this issue, the FWC ultimately concluded that despite this, Ms Trembath was not unreasonably refused a support person present at the meeting.
Tips for employers
As discussed in our blog I’ll be there for you: The Support Person in the Disciplinary Process, there are no strict rules as to who an employee can choose to be their support person. Generally however, a support person should not be someone who was involved in the alleged conduct and should not be someone who will be involved in the decision making process regarding the employee’s employment. Employees can have their union representative or legal representative present, however such representatives are limited to being a “support” person only and should not actively advocate.
Employers can ask the employee to identify who they will be bringing to the meeting. If an employee’s first choice support person is not available and they are required to arrange for another support person, employers should where possible, allow the employee to reschedule the meeting. Such measures will assist if an employer is later required to demonstrate that the employee was afforded procedural fairness and was not unreasonably refused a support person.
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