Unfair dismissal and support person

An employer does not need to explicitly advise an employee of his or her right to be accompanied by a support person at a meeting which may lead to the employee’s dismissal.

However an employee has the right to exercise that right (if he or she is aware of it).

In Simson Joy Thomas Charivupurayidam v Lapa Armadale Pty Ltd T/A Lapa Brazilian Barbecue [2017] FWC 1503, the employee was found to have been unfairly dismissed. The Commission’s comments on the support person provision are nonetheless illuminating. The employee argued that he was not aware that a meeting to be held between himself and the company would relate to his dismissal and that, as a result, he did not request a support person to be present. The employee nonetheless brought a support person into that meeting albeit without informing the company. The Commission found that the email sent to him by his employer referred to ‘very serious allegations’, and that, in the circumstances he should have known that the meeting could involve disciplinary consequences and that the presence of a support person would be in his interests.

These comments support the position that an employer does not have to explicitly state that an employee should have a support person present for the purposes of a disciplinary meeting. The very mention of possible consequences of that meeting, or the mention of serious allegations is sufficient. But even this is not necessary. It is nonetheless best practice to mention to employees before a meeting that they may have a support person present. Should an employee attend the disciplinary or termination meeting without a support person present and then commence unfair dismissal proceedings, they must clear a very high evidentiary hurdle to show that the employer unreasonably refused the presence of a support person.