Support persons necessary when performance managing staff

Most employers only act to conduct disciplinary meetings with their staff after a prolonged series of incidents or issues give them more than enough evidence of a genuine staff problem. However, while they may have a genuine reason for terminating an employee, many employers may not be aware their actions could be reversed by the Fair Work Commission if they have not conducted their disciplinary meeting with sufficient procedural fairness.

A recent decision of the Commission has confirmed procedural fairness includes the ability of an employee to have a support person present at their disciplinary meeting but has clarified the ability of an employer to specify the level of involvement of the support person.

In a case involving a very senior employee called to a meeting with her employer to discuss ongoing performance and conduct issues, the employee requested full details of the issues to be discussed. The employer provided these along with a warning her failure to attend could result in a decision being made without her input. The employee continued to resist attendance at the meeting and claimed a decision on the matter was already predetermined and the process being implemented against her was ‘simply a sham’.

The employer also advised their employee she could have a support person attend the meeting but added this did not extend to having an advocate who could speak on her behalf. The employer subsequently terminated the employee.

After considering the matter the Commission confirmed the employer had was not denied procedural fairn

ess to their employee and therefore found the termination was not harsh, unjust or unreasonable. On the procedural fairness issue of the role of a support person, the Commission held the Fair Work Act only provided for such a person to be available to attend discussions and did not extend to constricting an employer from stipulating conditions as the employer had done in this case ie the support person could not act as an advocate or speak on behalf of the employee.

Tips for Employers

Don’t overlook the importance of providing procedural fairness to employees you need to meet about performance or discipline issues. Failing to provide sufficient procedural fairness could mean your decision to terminate a misbehaving employee could be overturned even though you have more than sufficient evidence of their misconduct or poor performance.

On the issue of support persons, remember to apply any requirement in an applicable modern award, enterprise agreement, workplace policy or contract of employment specifying the role they are to play in a disciplinary meeting – these conditions will add to the base level requirement set out in the Act.

Victorian Association for the Teaching of English Inc v de Laps [2014] FWCFB 613 (19 February 2014)