An urban myth has sprouted up that any time an employee is to be interviewed about their work, or involved in any sort of investigation about incidents at work, the employee is entitled to have a support person present. This is not so. And a recent full bench Fair Work Commission decision explains why.
The case was an appeal against a decision where a Commissioner had decided the lack of a support person for the dismissed employee was a contributing factor to order reinstatement. The trouble for the Commissioner, which the appeal bench soon saw, is that the legislation doesn’t require an employer to ensure there is a support person at all. The relevant sub-section, 387(d), of the Fair Work Act is worth restating to make this clearer. It is one of the criteria which FWC must take into account in determining if the employer’s action has been harsh, unjust or unreasonable:
“any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal”
This is pretty clear; the employer has to unreasonably refuse to allow a support person. For this to even occur, firstly the employee has to ask to have a support person, or indicate that they would like to have one present. It is not, as this Commissioner had said, a right. Secondly, the employer can still refuse such a request if in the circumstances, the refusal is reasonable. And third, it must relate to where a support person is sought to “assist at any discussions relating to dismissal “.
So to make matters worse, the Commissioner conjured up a right for a support person during the investigation process. The appeal bench identified this as simply beyond jurisdiction. The employee was asked to explain what happened and it was at this juncture that the Commissioner asserted the employee was entitled to have a support person. But the employee was simply being asked to explain what had occurred, and no discussions about dismissal were taking place at all.
The reinstatement decision was quashed and the employee’s claim dismissed. The full bench made the strong point that the company did not refuse (reasonably or unreasonably) to allow a support person at all, at any relevant stage, and certainly not in the manner provided for in the legislation.
Employers do not have to ensure a support person is present at any time. They must not unreasonably refuse a request for a support person, but only where such a request is for a person to assist at discussions relating to dismissal.