The failure by an employer to facilitate an employee whose job is at risk having a meaningful opportunity of having a support person present might well swing a dismissal from being from fair to unfair, thus
“Section 387(h) – other relevant matters
“The Applicant did not request a support person to attend the meeting with Mr. Cross. This is likely because she would have been unaware that her ongoing employment was at risk. Had she been put on notice of the allegations against her, the Applicant would have been in a better position to respond, including by seeking some support. As it was, she met with Mr. Cross and was forced to defend herself, by herself, ‘on the spot’. She was summarily dismissed after a brief discussion. The Respondent was not required by s.387(d) to tell the Applicant to bring a support person but had they done so, and had the Applicant had the opportunity to avail herself of that option, this may have militated against some of the other shortcomings in the process. I regard this as a relevant consideration under s.387(h).11
I also take into account the fact that the Applicant had almost 7 years’ service with the Respondent. Mr. Cross for the Respondent described the Applicant’s work performance as ‘hot and cold’. The Respondent said, and I accept, that the Applicant was given some verbal warnings during her employment but nothing serious enough to warrant being reduced to writing. I conclude that the Applicant had a reasonable work record over the course of her employment and that this weighs in the Applicant’s favour in determining whether the dismissal was harsh, unjust or unreasonable.”
Maltby v The Trustee For Kingston Family Trust [2024] FWC 2987 delivered 28 October 2024 Roberts DP