A New Zealand employee used a clown as his support person in a redundancy meeting. Is this the start of a terrifying trend? No. But it does raise interesting questions. HRM asked a legal expert to weigh in.
It was the nose honk heard around the world. What began as a practical joke – a man electing to hire a clown to act as his support person in a redundancy meeting – became something more. A much better known practical joke.
The story has gone viral, so chances are you’ve heard it, but the question is whether there is anything to be learned from this. No, seriously. In Australia, what does the allowance for a support person entail? Can you bring a clown? If so, what can’t you bring?
Pagliacci in Auckland
As originally reported in the NZ Herald, copywriter at advertising firm FCB Joshua Jack was told there was a meeting he had to attend. He had not worked at the company for long, so he suspected the news wasn’t small.
“I thought it’s either a promotion or worse. I thought it’s best to bring in a professional and so I paid $200 and hired a clown,” the Herald quotes him as telling MediaWorks.
The clown, Joseph Brosnahan, spoke to Stuff about his experience. For him, the story began when he got a call from a party business he works for with an odd request. “They told me it was fine if I didn’t want to do it because it was pretty weird, but a guy was getting fired and he was allowed to bring a support person, and as a joke he wanted to bring a clown… I thought it sounded really funny so I was like, yeah why not.”
Cut to Brosnahan getting dressed in an FCB bathroom, and walking into what is normally a depressing meeting with Jack. The employers were apparently surprised but rolled with the novelty sized punch. Jack told Stuff they said something to the effect of, “Oh okay you’ve brought a clown with you, that’s a bit unusual.”
I have personally fact checked this. The assessment is accurate. It is unusual. (Though, it turns out, the thought itself is not entirely original.)
In the meeting itself the clown apparently made exaggerated crying hands and tied together balloon animals (at least one report said he was asked to stop as it was “rather noisy”). Both Jack and Brosnahan reported that the employer representatives weren’t too fussed. As Jack said, “It was me getting fired, not them, so how badly can they take it?”
Jack is an aspiring comedian who has since moved onto other copywriter work. So even though he intended to use the story for a standup bit, and was upset it was leaked, his willingness to give interviews to several international outlets suggests he was happy for the publicity. Considering the story has spread as far as New York, it’s been a successful stunt.
If Jack made any mistakes, it’s in not realising just how much power he gave to a clown. I’ll repeat that. He gave real power to a random clown.
You see, it seems New Zealand’s labour laws don’t make an official distinction between an employee representative and a support person. Jack may have intended Brosnahan to be a support person, but he wasn’t limited by that intention.
As barrister Mark Donovan writes on his website, “If you [the employer] prevent a representative from speaking up and speaking for an employee during a disciplinary meeting, you may be found to have failed to give them a real opportunity to have the support and representation necessary to ensure you have conducted a fair process.”
Now, both Jack and the employer could have raised objections should the clown have done something untoward. But if you think the clown was being disruptive for making squeaky noises as he tied balloon animals, know that he very well could have legally begun speaking for Jack and advocating for his interests. Presumably using an inflatable oversized mallet as some sort of gavel.
But what about a clown down under?
If an Australian employee tried to bring a clown in as their support person to a serious meeting, could the employer object?
“No they couldn’t, provided that the clown is not conducting themselves in an offensive or objectionable way and is merely providing support as opposed to advocacy,” says Michael Byrnes, employment law partner at Swaab. “It would probably be difficult to say ‘no’ to the clown.”
The law does allow employers to object to a support person if they are a disruption, but you are not on safe ground denying the clown on the logic that a clown is designed to disrupt. “You can’t necessarily assume a clown will disrupt the meeting. If the clown does then that might mean there is a basis for saying, ‘This particular support person is not appropriate, and we are going to terminate the meeting on that basis,’” says Byrnes.
Essentially, it’s better to err on the side of allowing any support person and only objecting once they have proven to be a disruption.
So what’s a disruption? Byrnes says that if the clown behaved as Brosnahan did (making balloons and crying gestures) it would be wiser to warn the employee and clown that the behaviour was inappropriate, rather than immediately adjourning the meeting to ask the support person to leave.
But if you can’t object to a clown support person, is there any profession outlandish enough that someone practising it can’t be a support person? Like, what if an employee wanted to bring in a reptile wrangler?
“You mean if one of the Irwin family came walking in!?” Byrnes laughs.
“A support person is a support person. So long as they don’t have a conflict of interest – another employee of the organisation, say – or someone with a history of violence, intimidation or something like that… then it’s going to be difficult to refuse that support person.”
He does mention that the reptiles themselves could reasonably be expected to stay out of any meeting.
Enough clowning around
If you need a refresher on the rights of employees when it comes to having a support person, here is a quick checklist, courtesy of Byrnes.
- Contrary to what seems to be the case in New Zealand, a support person cannot advocate for the employee. They can’t speak for them, or interject in a disruptive way.
- This doesn’t mean they have to be mute. It might be reasonable for them to give quiet advice to the employee (this can’t be constant or too disruptive), or to interject if they can see the employee is becoming visibly upset or being obviously bullied (they could ask for a break).
- They can also take notes of the meeting for the employee.
- Unless the company has policies that say otherwise, there is no positive obligation on an employer to offer an employee a support person.
- Refusing a reasonable request for a support person doesn’t immediately make a dismissal unfair, but it is one factor that would be taken into account.
Perhaps the best lesson to take from this comes from FCB, the company that made Jack redundant. It’s a textbook example of securing your employer branding amidst a potentially fraught viral story. Asked to comment on the story by the Herald a representative declined. But they did so in an email with the subject line “Coulrophobia” – the fear of clowns.