Support persons and unfair dismissal

Here is a brief explanation of the circumstances in which a support person (or lack thereof) may be a relevant factor in an unfair dismissal case.

“Support person – s.387(d)

Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

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.”40

The Applicant was advised in the Meeting Request Letter of 19 August 2021 of the meeting to be conducted on the 20 August 2021 and was specifically notified of her right to be accompanied by a support person. Ms Dominick accompanied the Applicant in the meeting on 20 August 2021. This weighs in favour of a finding that the dismissal was not unfair.”

Extract taken from Dominick v Jessicare Pty Ltd (2021) FWC 6421 delivered 26 November 2021 per Masson DP