Unfair dismissal; the role of support person

The following passage from a recent Fair Work Commission unfair dismissal case goes further than the orthodoxy which is that a support person under the Fair Work Act may do no  more than silently observe proceedings.

“Support person

In its email to Mr McCouaig on 8 August notifying him of a meeting on 9 August Colliers said as follows: 69

“You are welcome to bring a support person along to the meeting. The role of a support person is to provide you with emotional support. They are not there to act as an advocate on your behalf.”

Collier’s invitation to bring a support person was made in conjunction with a meeting notice which was, for reasons already mentioned, unfair and misleading. Being invited to bring a support person to an ill-timed meeting where serious allegations had not been outlined and Mr McCouaig misled over possible sanctions compromised not just the rights of the employee but the utility of his potential support person. To the extent an employee is in the dark about allegations and misled about possible sanctions, so too would be that person’s support person.

Colliers had already scheduled a performance management meeting for five days later (14 August) and the employer had provided Mr McCouaig an opportunity to bring a support person to that meeting (as with previous PMP meetings). On this occasion, albeit unknown to Colliers, Mr McCouaig had arranged (quite reasonably) for his father to attend as his support person. Compelling his attendance at a meeting with no more than one hour’s notice made it nigh impossible for Mr McCouaig to secure a support person of his choice.

Colliers (both Ms Narkiewicz and Mr Podnar) knew by at least by 3 August that Mr McCouaig was fearing that he was being set-up for dismissal when he told both by email “that he would hate there to be any surprises” on 14 August. In these circumstances Colliers ought to have recognised that Mr McCouaig’s attendance at further performance or disciplinary meetings with a support person was a real possibility. Colliers was required to make reasonable provision for that right to be exercised as a minimum measure of fairness. It failed to do so.

Collier’s email of 8 August advised Mr McCouaig that any support person could provide “emotional support” but was “not acting as an advocate”. Generally speaking, a support person is not an advocate. Support however takes a variety of forms and may include a support person needing to speak to the employee they are supporting or, in appropriate circumstances, to the employer – for example to seek clarification or request a pause to a meeting. In its communication to Mr McCouaig, Colliers risked unreasonably limiting the role of a support person to that of emotional support. Whilst a support person is not a substitute for direct accountability by an employee to an employer, they perform a role beyond that of a shoulder to cry on 70.

In the circumstances of this case, and notwithstanding the intimation in Ms Narkiewicz’s email of 8 August, I find that Colliers unreasonably refused to allow Mr McCouaig to have a support person present because it gave him no reasonable time-frame to access one.”

McCouaig v Colliers International (SA) Pty Ltd (2019) FWC 1517 delivered 8 March 2019 per Anderson DP