Can an employer say ‘no’ to a support person?

09 April 2018

Employees might assert they have a ‘right’ to have a support person present during certain processes, for example during performance management, investigations and disciplinary procedures.

Understanding the role of a support person, and how far an employer can go to control what they can do, is an important element of successfully and lawfully managing employees.

Can an employer lawfully refuse an employee’s request to have a support person?

If an employee wishes to have a support person present to assist in a discussion relating to dismissal, it will only be in very rare situations that an employer could reasonably refuse such representation. Before making this decision, employers need to be aware that ‘unreasonable refusal’ is one factor the Fair Work Commission (FWC) must take into account in considering whether a dismissal was harsh, unjust or unreasonable under section 387 of the Fair Work Act 2009 (FW Act)1.

Key points

  • Employers do not have a positive obligation to offer a support person.2
  • It is usually only a relevant factor in unfair dismissal claims if:
    • the employee has requested to have a support person attend a disciplinary meeting3;
    • the employer refuses to allow the support person to attend; and
    • the refusal to allow a support person is unreasonable.
  • The employer could be required to:
    • give an employee notice that the meeting might lead to disciplinary action including dismissal4;
    • give an employee sufficient advance notice of a disciplinary meeting to allow the employee to arrange a support person to attend5; and/or
    • reschedule a disciplinary meeting to allow for an employee’s support person to attend.6

Case example: Knight v Commonwealth of Australia (Australian Criminal Intelligence Commission) [2017] FWCFB 3896

Mr Knight appealed Deputy President Kovacic’s 5 May 2017 decision in which his unfair dismissal application was dismissed.

Mr Knight was dismissed by the Australian Criminal Intelligence Commission (ACIC) on 30 November 2016 following a performance improvement process. Deputy President Kovacic found that the process had been thorough and fair, and that there was a valid reason for his dismissal.

The employee appealed on a number of bases, including that he was denied an opportunity to have a support person present, because he had not seen or read the message from his employer advising him of the meeting and the fact that he could bring a support person. Deputy President Colman rejected this argument and found that there had been no refusal. Mr Knight was refused permission to appeal.7

When can an employee request a support person?

Pursuant to section 387(d) of the FW Act, in discussions relating to (or which might relate to) dismissal.

An employer can lawfully refuse an employee’s request for a support person when an employee is completing an incident report in relation to an incident which might result in their dismissal.

Case example: BlueScope Steel (AIS) Pty Ltd v Nejat (Paul) Agas [2014] FWCFB 5993

Mr Agas was dismissed by BlueScope Steel for ‘continued unacceptable performance’. Mr Agas’ dismissal was triggered by an incident on 27 July 2013, during which $10,000 of damage was caused to equipment whilst Mr Agas was operating a 40 tonne crane. Mr Agas failed to promptly notify management, he had also been involved in other safety-related incidents.

At first instance, Commissioner Riordan ordered that Mr Agas be reinstated. BlueScope appealed.

The Full Bench of the FWC held that in the original decision, Commissioner Riordan had failed to make a finding about whether BlueScope had unreasonably refused to allow Mr Agas to have a support person at any discussions relating to his dismissal.

Commissioner Riordan had stated that Mr Agas was not offered the opportunity to have a support person present on the evening when he completed the incident form. There was no evidence that Mr Agas had asked for a support person at the time he completed the incident form.

The Full Bench clarified that section 387(d) of the FW Act does not extend to when an employee is preparing an incident report, because preparation of such a report ‘would not ordinarily or necessarily be considered to be a matter involving discussions relating to dismissal.’ 8

Is it the same for small businesses?

The Small Business Fair Dismissal Code (Code) states that during discussions between the employer and employee about matters where dismissal is possible, the employer must allow the employee to have another person present to assist them. However, this person cannot be a lawyer acting in a professional capacity.

The FWC interprets it as a requirement of the Code for the employer to tell the employee the nature of the discussions so that the employee can decide whether to have a support person present.9

Who can be a support person?

  • Friend/family member
  • Own choice of individual industrial/union officer10
  • HR representative11 or colleague
  • Lawyer12

What is the role of a support person?

  • To offer support – to clarify questions/allegations, take notes, help an employee formulate what to say, talk to the employee and/or assist them during the discussions, assist the employee with understanding the processes, ask for breaks and give emotional support
  • More than a mere silent observer
  • Not an advocate13 and cannot speak on behalf of the employee – see example below
  • The role might change if the employee is covered by an enterprise agreement

Case example: VATE v Debra de Laps [2014] FWCFB 613

Ms de Laps was asked by her employer (VATE) to attend a meeting regarding her work performance and was told ‘you may bring a support person if you wish. Please note that the role of the support person is to provide you with emotional support. The support person is not to act as your advocate and should not speak on your behalf.’

Ms de Laps protested against VATE’s failure to provide particulars of the allegations, refusal to permit an advocate and the short time-frame. VATE sent her another letter detailing the allegations, and gave her three days to respond. She responded by resigning. She subsequently filed an unfair dismissal claim, alleging she had been forced to resign as a result of VATE’s conduct which included its refusal to allow her an advocate at the meetings.

This refusal was an issue in the case in two ways:

  • it was alleged that it formed part of a course of conduct designed to force Ms de Laps to resign
  • it was alleged that it would make the constructive dismissal harsh, unjust or unreasonable

Ms de Laps was successful at first instance on the basis that VATE had engaged in unfair conduct, including refusing to allow her to have an advocate at a meeting, which meant that she had been constructively dismissed. VATE appealed the decision.

The Full Bench of the FWC found in favour of VATE and held that VATE’s refusal had not caused Ms de Laps to resign, and that the right of a support person under the FW Act does not extend to a right to an advocate.14

If an employer refuses, what claims could an employee make?

Unfair dismissal or general protections

Refusing to allow a person to have a support person present at a disciplinary meeting, or refusing to schedule a disciplinary meeting to allow a person sufficient time to arrange a support person, might constitute an unfair dismissal if (assuming there is a valid reason for dismissal) the dismissal was harsh, unjust or unreasonable. This includes if the employer unreasonably refuses to allow the employee a support person. It might also constitute adverse action and could give rise to a general protections claim.

FWC dispute resolution

An employee might be able to make an application under the disputes settlement procedure in an enterprise agreement if the agreement gives the FWC power to resolve a dispute about a particular matter (eg compliance with a company policy which requires that a support person be offered and/or present at certain meetings).

Breach of Contract

If an employer has failed to comply with its own policy (eg by unreasonably refusing to allow the employee to have a support person at a meeting relating to dismissal), and that policy is found to have been incorporated into an employee’s employment contract, an employee could pursue a claim for damages for breach of contract.

Considerations for employers

  • Compliance with any applicable industrial instrument, eg a modern award or EBA
  • Compliance with company policy
  • Type, nature and quality of the support
  • When to offer an employee to bring a support person and at what stage(s) of the process
  • When to grant an employee’s request to bring a support person (the law versus best practice)
  • Whether to adopt a strict or a flexible approach
  • How to communicate the role of a support person to the support person and the employee
  • How to manage the support person during the meeting, including how to restrain an interventionist support person and/or a support person who starts answering questions on the employee’s behalf
  • Whether denying a support person would prejudice the employer at all

If you would like advice or assistance with any support person and/or employee management issues, please contact a member of our Workplace Relations team.


1. See section 387(d) FW Act.

2. Explanatory Memorandum to Fair Work Bill 2008 at para. 1542. This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.

3. If the employee does not request to have a support person, there can be no reasonable refusal. Knight v Commonwealth of Australia (Australian Criminal Intelligence Commission) [2017] FWCFB 3896.

4. DeGasperi –v- Pty Ltd  [2015] FWC 8617.

5. Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWA. Permission to appeal was refused by the Full Bench of the FWC in the decision on appeal in [2012] FWAFB 7267.

6. See Laker v Bendigo and Adelaide Bank Limited [2010] FWA 5713. In this case, the employee was dismissed for poor performance. The employee had requested that the disciplinary meeting be rescheduled to allow for the union representative to attend. Commissioner Lewin held that it was not an unreasonable burden on the employer. The dismissal was found to be unfair because the conduct of the termination meeting was unreasonable. However it probably requires the employee to seek that the meeting be rescheduled. See eg Mydlowski v AAA Cleaning, Security Maintenance Pty Ltd [2010] FWA 1810.

7. [2017] FWC 2488 at 52.

8. BlueScope Steel (AIS) Pty Ltd v Nejat (Paul) Agas [2014] FWCFB 5993 at 76.

9. McConnell v Terry White Chemists Victoria Point [2015] FWC 4060 at 51-52 per Senior Deputy President Richards. In this case, the employer had failed to allow that, therefore the FWC found that the Code did not apply and ordinary unfair dismissal applied.

10. In Dewson v Boom Logistics Ltd [2012] FWA 9027 (Cambridge C, 24 October 2012); [2013] FWC 760, an employee requested a particular union official to be present as support person at a disciplinary meeting which the employer refused, instead nominating a different union delegate as support person. Commissioner Cambridge held that the employer unreasonably refused to allow the employee a support person of the employee’s choice, and in light of other procedural matters, determined that the dismissal was unfair.

11. In Lankam v Federal Express (Australia) Pty Ltd T/A Fed Ex [2011] FWA 6230, an employee requested a union representative to be present at a first disciplinary meeting, however the employer only allowed for an HR employee to be present. Further disciplinary meetings were held both with and without a union representative present. There was no valid reason for the dismissal and the dismissal was found to be unreasonable because the employer did not adequately provide for the employee’s English language difficulties in the disciplinary process.

12. A lawyer can act as a support person, provided that they do not advocate on the employee’s behalf, and as long as they are acting in their capacity as an employee’s support person and not their lawyer.

13. Unless there is some right in the employee’s employment contract, the employer’s policy or in an enterprise agreement.

14. At paragraph 52, the Full Bench stated: ‘Given that legislative provision [section 387(d)] and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.’


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