Support persons and the fair work system

The role of a support person in the fair work system is generally limited to the provision of moral and emotional support at meetings. The Fair Work Act does not mention the role of a support person except to provide that when considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable it must take into account any unreasonable refusal by the employer to allow the person who was dismissed to have a support person present to assist at any discussions relating to a dismissal; sub-sec 387(d).

Consequently an employer is not bound to permit a support person to be an advocate for the employee or to make submissions on the employee’s behalf. Perhaps the most crucial potential role of a support person is to be available to give evidence at a hearing if there is a dispute about what may have been said at a relevant meeting in the event of a dispute about that.

Consequently a support person may act as a witness, observe the proceedings and make notes if desired and if appropriate, request a break in the meeting so that he or she and the employee may privately discuss relevant issues. A support person is not entitled to provide their own opinions or answer questions on the employee’s behalf during a meeting but should be permitted to assist the employee to explain or clarify questions asked about detail or process.