UNDERSTANDING THE ROLE OF THE EMPLOYEE SUPPORT PERSON

At the most recent AHRI National Convention held in Brisbane, our Managing Director, Sarah Queenan joined a panel of HR/IR experts and lawyers to discuss the role of regulators, unions, employee bargaining representatives, and the employee support person as third parties in workplace relations matters. 

We don’t always immediately think of the employee support person as a third party, but it quickly becomes clear when they are sitting across the table from you, that they are from ‘outside’ your organisation. Understanding the role of the employee support person is key to ensuring that you meet important compliance requirements and successfully manage sensitive employment cases in your organisation. 

What is an employee support person?

An employee support person exists to provide emotional support to an employee when they are required to take part in performance, conduct, investigation, disciplinary or other employment-related meetings that may result in dismissal or termination of employment. 

Despite the prevalence of the employee support person in our workplaces, the Fair Work Act 2009 (Cth) does not expressly define the role. Instead, Section 387 (d) of the Fair Work Act 2009 (Cth) sets out the criteria applied when determining if a dismissal was ‘harsh, unjust or unreasonable’, with one of the factors required to be considered of ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’.  

What is the best way to approach an employee support person? 

Sarah recommends that – “It is essential to start from a place of understanding. The employee has selected the employee support person to accompany them at a sensitive time, often a time when they are themselves are emotional and vulnerable, their employment may very well be on the line. We are looking here at the ‘pointy’ end of the employment relationship.

An ‘us versus them’ approach doesn’t serve anyone in the long run. Having empathy for both the employee and employee support person is a great place to start and will go a long way to ultimately achieving a better outcome for both the employee and your organisation”.

When can you reject or refuse an employee’s choice of support person?

You must never unreasonably refuse an employee’s choice of support person.  As a rule, it is only in exceptional circumstances that the employer will take action to refuse an employee’s choice of a support person. 

There are plenty of cases that demonstrate the consequences of employers refusing to accept an employee’s choice of support person.   

In the case, Lankam v Federal Express (Australia) Pty Ltd T/A Fed Ex [2011] FWA 6230 (Deegan C, 9 September 2011) the employer refused the employees union support person. Instead, the employer proceeded to meet with the employee with a HR person acting as a support person. The Commission found this to be unreasonable on the part of the employer. It resulted in the employee making out a successful unfair dismissal claim against the employer. 

Failing to be accommodating and flexible, for example not rescheduling a meeting based on reasonable request so an employee support person can attend, can result in a successful unfair dismissal claim being made against the employer. In the case Laker v Bendigo and Adelaide Bank Limited [2010] FWA 5713 (Lewin C, 28 September 2010) the employer refused to reschedule a meeting so the union support person could attend. The Commission found that it would not have been a burden on the employer to adjust the meeting time, amounting to unfair dismissal. 

Sarah explains – “In my previous experience managing these issues, often managers involved can become caught up and question the choice of an employee support person. Spending time trying to resist the selection of employee support person, will only likely get you in hot water. It is much more advisable to instead focus on managing the broader process and then take action, for example, if the employee support person does not behave in an acceptable manner.”

So, how do you manage the employee support person?

“The angry husband, wife or grandma – they definitely can show up as the employee support person and create tricky scenarios to manage, particularly if they behave in an unreasonable manner” – Sarah recalls from her own lived experience.  In these situations, it is important to set clear boundaries around the conduct of meetings. Take the time to explain the role of the employee support person, making it clear from the outset that their role is to provide emotional support but not to advocate on behalf of the employee or disrupt the meeting. 

“You would not accept bad behaviour from the employee, so you certainly shouldn’t accept bad behaviour from the employee support person” explains Sarah.  “Remembering that 95% of the time, the employee support person will be reasonable to deal with and will play a vital role in supporting the employee at a critical time in the employment relationship”. 

More information

If you enjoyed reading this article you might find some of our other (mostly FREE!) HR tools and resources available for download on our website of value, including:

·       Guide: Preparing for Enterprise Bargaining

·       Checklist: Preparing for Enterprise Bargaining

·       Calendar: Workplace Relations Changes Calendar 2023

·       Guide: Conducting an Effective Workplace Investigation

·       Guide: Burnout Awareness and Prevention

·       Article: Understanding the Better Off Overall Test (BOOT)

·       Article: Understanding the New Pay Secrecy Provisions

·       Article: What are great HR teams are focused on when it comes to workplace relations changes?

Work with us

Humanify HR Consulting is a purpose-driven provider of workplace relations, leadership, culture, coaching and HR consulting services.  Contact us at hello@humanifyhr.com.au to see how we can work together to help you thrive in a new world of work. 

Important Disclaimer: The material contained in this article is provided as general information only. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this article we recommend that you seek professional advice.