Support persons and the Fair Work Act

In an unfair dismissal case the Fair Work Commission is bound by the Fair Work Act to take into account whether there was an unreasonable refusal by an employer to permit an employee to have a support person present at any meetings of significance but this does not convert into a positive duty upon an employer to facilitate the presence of a support person.

“There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 33

Habbershaw v Jo-Ann Aay T/A Hermitage Produce (2021) FWC 5111 delivered 2 September 2021 per Platt C and see Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].