If you have been asked to attend a compulsory performance meeting it is likely that you are feeling anxious about having to explain yourself to your employer in a way that preserves your reputation (and possibly even your job). Receiving criticism from your boss or manager is difficult at the best of times and it may feel unfair that your employer has time to prepare their criticisms while you are left to give your responses in the moment.
You may wonder whether you can invite someone to support you during any investigative or performance management meetings. While the law does prevent employers from refusing you this support outright, there are circumstances where they are able to refuse your request. It is also important to understand what support persons can and cannot do during such meetings.
We provide a short summary below that addresses what exactly a ‘support person’ is, what role they play during performance meetings, and what a refusal by your employer to allow you a support person might mean for you.
What is a support person?
A support person can be any person you choose to bring into a meeting with your employer to provide you with emotional support or reassurance. This includes friends, family members, lawyers, and union representatives.
Some persons, such as lawyers or union representatives, may even provide you with advice as to your basic legal rights (e.g., as to whether you are being afforded procedural fairness). Usually this is helpful if your employer seeks to terminate your employment or is conducting a formal workplace investigation into allegations against you.
Other activities might include taking notes during the meeting or assisting you to prepare a written response to any allegations put forward prior to the meeting.
Who is not a support person?
The Fair Work Commission (FWC) and the Courts emphasise that support persons are not advocates.1 Basically, your employer can reasonably refuse any request to have someone speak on your behalf during a meeting. Support persons may only talk to you (as the employee), not to the employer’s representative directly.
The FWC also recognises scenarios where having a certain person present as a support person might be inappropriate. For example, an employee may be refused to invite a fellow colleague as their support person, especially if that person is personally involved in the situation under investigation. Managers and company representatives may also be inappropriate (for obvious reasons).2
What does it mean if my employer refuses my request for a support person?
Under the Fair Work Act, some employee terminations are determined to be ‘harsh, unjust, or unreasonable’ to the extent that the employee can reasonably make a claim for compensation. In determining whether the employee has been subject to an ‘unfair dismissal’, the FWC or a court must take into account ‘any unreasonable refusal’ by the employer to allow an employee to have a support person present during any discussions relating to their dismissal.3
It is important to note that a refusal of this kind is not always determinative in a finding of unfair dismissal and that it constitutes one of many possible factors that would lead to such a ruling. There is also no obligation for your employer to notify you of your right to have a support person present in a performance meeting, meaning that you have to be proactive when it comes to assessing whether you require such a person to attend.
If you have been asked to attend a compulsory performance meeting and need some advice or would like us to act as your support person, please contact us on (02) 9199 8597.
1 Victorian Association for the Teaching of English Inc v Debra de Laps  FWCFB 613.
2 Trembath v RACV Cape Schanck Resort  FWC 4727.
3 Fair Work Act 2009 (Cth) s 387(d).