Who is an appropriate support person? And when can you veto an employee’s choice?
Remember that time HRM wrote about the man who brought a clown into his redundancy meeting as his support person? No, you didn’t misread that. It was an actual clown – blue fuzzy wig, novelty-sized hat and balloon animals included.
If you don’t, here’s the gist. A man was forewarned that a redundancy meeting was looming and was invited to bring a support person in. Partly joking, he decided a clown would be the right person to lighten the mood – after all, he was about to get fired.*
At the time, HRM spoke with employment lawyer Michael Byrnes who informed us that an employer would have a hard time objecting to such a stunt.
“Provided that the clown is not conducting themselves in an offensive or objectionable way and is merely providing support as opposed to advocacy, it would probably be difficult to say ‘no’ to the clown,” Byrnes said at the time.
In this instance, the support clown was allegedly creating balloon animals and miming crying. Annoying? Strange? Noisy? Perhaps. But according to Byrnes, not disruptive enough to warrant asking the clown to leave.
But just because an employee can bring a clown into a meeting as their support person, that doesn’t mean they should. The same goes for friends and family – sometimes it can make the situation too emotionally charged and difficult to manage.
So what should HR do if they are faced with a difficult support person? And what can they do to stop them from potentially derailing a meeting (be that through an emotional outburst or a noisy balloon animal creation)? HRM put these questions to workplace investigator and director at Worklogic, Jason Clark.
Haven’t got time to read the whole article? We’ve summarised some of the key points at the bottom.
Support person 101
Employees should be permitted to bring a support person to any formal meeting relating to their employment – for your benefit and theirs. This might include performance, disciplinary, and termination meetings. It could include any meetings in relation to a workplace investigation, regardless of whether they are the complainant, respondent or a witness, says Clark.
In simple terms, a support person is there to provide moral and emotional support for the employee. They could be a colleague, union representative, lawyer, friend or family member – however, tread carefully with the last two (more on that in a moment).
A support person is not there to engage with the meeting, answer questions, speak on behalf of the employee or disrupt proceedings, says Clark. Instead, their role is to act as a (semi) silent, supportive bystander – they can offer advice to the employee throughout the meeting and take notes.
The Fair Work Act doesn’t specify that employers offer an employee the opportunity to bring a support person to a meeting, but refusing an employee’s request to have a support person present could work against you if the employee later lodges an unfair dismissal claim.
Because of this ambiguity, it’s usually left to HR to decide if a meeting will require a support person.
“I would advise employers to err on the side of caution,” says Clark. “If your meeting is going to have anything to do with discipline or performance issues – even if you feel it’s a quick notification – I would recommend offering the employee a support person.”
A support person should be informed of what the meeting is about beforehand so they don’t receive any nasty surprises or react in an unproductive manner.
“I had instance where I investigated sexual harassment claim and the employee being investigated brought along his partner as the support person without telling her about the claims [made against him],” says Clark.
“It can become quite problematic and potentially derail the process if the support person is blindsided by the allegations.”
When can you say ‘no’ to a support person?
An employer should be informed up front who the employee intends to use as a support person, and there will be instances where the employer might want to push back against an employee’s choice of support person.
However, employers have to be careful about vetoing people as it could come back to bite. Take this 2012 FWC case for example. After an employee head-butted a colleague at a Christmas party, he sought to have a union representative present at his disciplinary meeting. His employer refused and instead allocated its own support person for the employee.
It was a classic case of a lack of procedural fairness, the presiding commissioner found, stating, “There was no proper investigation undertaken, the relevant manager… ambushed the applicant with the allegations, and he unreasonably refused to allow the applicant a support person of his choice. It is difficult to imagine a more blatant example of a denial of natural justice.”
So while denial of the support person was not the clincher, it was a strong contributing factor in the FWC’s decision to side with the employee in question (however, he wasn’t reinstated). You always want to have the most arrows in your quiver during an unfair dismissal claim.
However, it may be appropriate to rule out a support person if there’s a conflict of interest or if they have a personal stake in the outcome. This is why line managers are sometimes not an appropriate choice, especially for disciplinary meetings, says Clark.
In regards to an investigation, an employee’s support person cannot be someone who is involved in the investigation in any capacity, such as a witness.
“HR does need to put their foot down sometimes and say, ‘No that’s not an appropriate choice,'” says Clark.
“I have seen someone try to act as a support person to the complainant in an investigation and then try to be the support person for the respondent also. That’s a conflict of interest and you can’t allow that.”
Some organisations have bans on lawyers as support people, for example. If someone chooses their lawyer to be their support person, Clark explains there is sometimes the expectation they are there to advocate on behalf of the employee – that’s not their role.
Occasionally a support person will step beyond their remit, especially if they have an emotional connection to the employee – such as a friend or family member.
Clark suggests beginning meetings by informing the support person of exactly what their role is and where the boundaries lie. If they overstep those boundaries, remind them of that role, or stop the meeting until the support person toes the line.
It’s important to make it clear to the employee that they can take a moment alone with their support person when they need. This can curb the possibility of the support person interjecting during the meeting, Clark suggests.
“I have seen someone try to act as a support person to the complainant in an investigation and then try to be the support person for the respondent also. That’s a conflict of interest and you can’t allow that.” – Jason Clark, workplace investigator and director at Worklogic.
If the support person becomes too unruly you may need to have a frank conversation with the employee.
“There have been instances where I’ve had to say to the participant, ‘Look, your support person is being too disruptive and they’re impeding your ability to answer my questions,’” says Clark.
If the employee intends to bring that person to a future meeting, Clark believes you’re well within your rights to ask them to reconsider.
As well as advising a support person of their role in a meeting, it’s important they’re also aware of the confidentiality restrictions they and the employee in question are bound by. That means they should not discuss the matter with anyone who was not present at the meeting.
If the support person is an employee, they should be aware that breaching that confidentiality could result in disciplinary action, such as termination. It gets trickier if the confidentiality breach is made by a support person who’s not an employee.
“In this instance, I would focus on finding out what happened, where the breach was and what impact that has on the investigation, or on other employees,” says Clark,
“If they’ve revealed information about an employee or said something to them, then your focus should be making sure that employee is getting the right support.”
A recent FWC decision heard the matter of the summary dismissal of an employee after she revealed confidential information to her partner about a sensitive workplace investigation. The partner sent a string of “aggressive, threatening, and intimidatory” texts to others involved in the investigation as a result, claiming they had “thrown [his partner] under the bus”.
“Had [the person who received the texts] been a witness in this proceeding and [the partner] engaged in such behaviour in response to her testimony or proposed testimony, he would have committed a serious offence under s676 of the [Fair Work] Act and been liable to imprisonment,” said the presiding deputy president.
While the employee had a lawyer present as her official support person, she also claimed her partner was a support person. This is where the matter got a little complicated. The deputy president said if the partner was an additional support person, he wasn’t a very good one as he did opposite of what is required of him and “set off a chain of events” that resulted in the employee’s dismissal.
While this is a good example of how easily things can spiral out of control when confidentiality is breached, the FWC overturned her dismissal, claiming it is reasonable for an employee to share such information with their spouse or de facto partner.
Want to know more about support people in meetings? Or have another HR question? Reach out to AHRI:ASSIST to receive bespoke advice from an HR expert.
Employers need support people too
It’s important to remember that support people are not exclusive to employees. It’s reasonable for HR to have a support person present if they feel it’s necessary.
For an employer, a support person can be a helpful addition to a meeting. They might be able to take notes and can be a valuable support mechanism for debriefing after a meeting.
Clark has told HRM previously how important it is for HR to be able to talk to someone after emotionally fraught meetings.
“We deal with varying types of heightened emotion and you don’t want to internalise that. Talking with a colleague allows you to debrief from the encounter. It’s also a way to think through what happened and what you’ve learnt,” he said at the time.
- Support people should be present at investigation, performance, disciplinary and termination meetings.
- They are a (semi) silent observer, there to offer moral and emotional support, and quiet advice to the employee.
- Support people should be told what their role is at the beginning of a meeting.
- HR should be informed who the employee intends to bring as a support person before a meeting.
- Support people cannot have a conflict of interest relating to the matter being discussed. If they do, it’s reasonable for the employer to veto them.
- Allow the employee and the support person time to talk in private as needed.
- A support person is bound by the same confidentiality rules as an internal employee.
*He has since been hired again, FYI. The clown stunt actually bagged him the job.