The Fair Work Act provides that the Fair Work Commission in an unfair dismissal case when deciding whether a dismissal was harsh, unjust or unreasonable must take into account a number of specific issues including “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal.”
Normally this is interpreted to mean what it says, namely that the relevant issue is whether there was an unreasonable refusal to facilitate the presence of a support person rather than as a requirement for the employer to initiate the presence of a support person. Furthermore the Commission as consistently held that the Act is not to be interpreted to mean that the support person is entitled to speak or advocate for the employee.
However it is true that individual members of the Commission from time to time do take a more aggressive attitude to the issue and here is an example.
“Even though the 19 April meeting was an advanced disciplinary meeting, Cabin Services took no steps to offer Mr Wederay a support person of his choice. Ms Armone’s evidence was that company policy required staff facing disciplinary processes to be offered a support person 55. Mr Wederay’s evidence was that none was offered or provided on that day or in any preceding disciplinary or counselling session56. On this point, I accept his evidence and prefer it to that of Ms Crook, which was inconsistent and vague57. In cross examination, Ms Crook claimed that she offered a Team Leader (Charmaine) to sit in on their meeting58. Charmaine was Mr Wederay’s immediate supervisor. I do not accept Ms Crook’s evidence on this point. It was not led in her witness statement. She proffered this only under pressure of questioning. In doing so, she gave the impression of conflating events to bolster the company’s case and cover her tracks. She also seems to consider that a third party witness, including a company selected manager such as Mr Priestley, would satisfy any internal requirement of a support person being made available59. In any event, even on Ms Crook’s version, Charmaine was nominated by Ms Crook, not Mr Wederay.
In the context of the events of 19 April, the failure to offer Mr Wederay a support person of his choice was a failure of substance. A support person can assist an employee to assert their rights, act consistently with their rights and not act contrary to their interests. In the context of the events of 19 April, a support person would have been entitled to take a role in moderating Mr Wederay’s agitated state, give him confidence to state his objections to the written warning, assert his right not to sign the warning, counsel him against a heat of the moment resignation, ascertain his real intention and counsel him on whether a heat of the moment resignation, once expressed, should be instantaneously withdrawn. The conduct of Cabin Services in not offering Mr Wederay an opportunity to be accompanied by a support person of his choice was a significant and material failure on its part.
In deciding whether a dismissal is harsh, the legislature requires specific consideration of whether an employer unreasonably refused to allow an employee a support person. That this is identified amongst a myriad of potential relevant factors suggests some importance should be attached to the role a support person can perform. Although Cabin Services did not unreasonably refuse Mr Wederay a support person, the circumstances giving rise to the presence or otherwise of a support person in this particular case are relevant to deciding whether a “fair go all round” 60 has been provided.”
Wederay v Airline Cleaning Services Pty Ltd T/A Cabin Services Australia (2017) FWC 4603 delivered 6 September 2017 per Anderson DP