Unreasonable refusal of a support person

See Fair Work Act 2009 s.387(d)

There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

A support person does not act as an advocate – a support person does not present or defend a case on behalf of the employee.[2]

Unreasonable refusal of support person

Employer denied employee choice of support person

Dewson v Boom Logistics Ltd [2012] FWA 9027 (Cambridge C, 24 October 2012); [2013] FWC 760 (Cambridge C, 5 February 2013).

The employee was dismissed for serious misconduct including allegations of assault and bullying. The employee requested that a particular union official be present at the disciplinary meeting as a support person. The employer refused the request and nominated a different union delegate to act as a support person.

It was held that the employer unreasonably refused to allow the employee a support person of is choice and, in light of other procedural deficiencies, determined that the dismissal was unfair.

Employer refused to reschedule meeting so union representative could attend

Laker v Bendigo and Adelaide Bank Limited [2010] FWA 5713 (Lewin C, 28 September 2010).

The employee was dismissed for poor performance. The employee requested that the disciplinary meeting be rescheduled to allow for the attendance of a union representative. The employer refused to reschedule the meeting.

It was held that the request for adjournment was not an unreasonable burden on the employer. It was found that the dismissal was unfair because the conduct of the termination meeting was unreasonable.

Request for union representative denied – employer offered choice of someone from human resources

Lankam v Federal Express (Australia) Pty Ltd T/A Fed Ex [2011] FWA 6230 (Deegan C, 9 September 2011).

The employee was dismissed for alleged misconduct and breach of company policy relating to delivery parcels. The employee requested that a union representative be present at the first disciplinary meeting, however the employer only allowed for a member from human resources to be present. Further disciplinary meetings were held both with and without a union representative present.

Notwithstanding the finding that the dismissal was unjust because there was no valid reason for dismissal, it was also held that the dismissal was unreasonable because the employer did not adequately provide for the employee's English language difficulties in the disciplinary process.

NO unreasonable refusal of a support person

Employer refused to reschedule meeting on short notice

Jalea v Sunstate Airlines (Queensland) Pty Ltd T/A Qantas Link [2012] FWA 1360 (Bissett C, 5 March 2012).

Permission to appeal refused in [2012] FWAFB 7267 (Drake SDP, McCarthy DP and Riordan C, 11 September 2012).

The employee was dismissed for the use of inappropriate language and physical force towards her manager. The employer scheduled two meetings to discuss the allegations with the employee and her representative. The employee's representative requested that the meetings be rescheduled but the employer refused these requests.

It was found that the employer provided adequate notice of each meeting and in circumstances where the employee's requests were received at short notice, there was no basis for a finding that the employer unreasonably refused to allow a support person to assist the employee.

Employee alleged that a support person was denied

Mabior v Baiada Group Pty Ltd T/A Adelaide Poultry [2011] FWA 5778 (Steel C, 25 August 2011).

The employee was dismissed for misconduct relating to alleged racist remarks about a colleague. Whether the employee was given an opportunity to have a support person was in issue.

It was concluded that the employee was an unreliable witness and preferred the evidence of the employer. It was held that there was no unreasonable refusal of a support person.

Union delegate attended at employer’s request – employee did not request the presence of a support person

Dissanayake v Busways Blacktown Pty Ltd [2011] FWA 3549 (Sams DP, 23 June 2011).

Permission to appeal refused in [2011] FWAFB 6487 (Acton SDP, McCarthy DP, Spencer C, 22 September 2011).

The employee was dismissed for misconduct relating to reckless driving of a school bus. The employee did not request a support person but argued that he was denied procedural fairness because he was not offered one.

It was found that the employer was not in breach of s.387 (d) because there was no request by the employee for a support person, it followed that there was not an unreasonable refusal of such a request.

Employee notified that she could have support person – made no request

Biggs-Venz v Ozcare [2010] FWA 4797 (Richards SDP, 8 July 2010).

The employee was dismissed for poor performance. There was no evidence in the proceedings that the employee sought or requested a support person. Accordingly it was found that there was no unreasonable refusal by the employer to allow a support person.

Employee’s choice of representative unavailable but no request for adjournment – alternate support person provided sufficiently assisted employee

Mydlowski v AAA Cleaning, Security Maintenance Pty Ltd [2010] FWA 1810 (Richards SDP, 1 March 2010).

The employee requested that a particular union representative be present at the meeting however the representative was unavailable. The employer did not reschedule the meeting; however the employee did not seek that the meeting be rescheduled.

It was discussed that a refusal to adjourn a disciplinary meeting may be relevant to issue of procedural fairness but is not relevant to the requirements of s.387(d). It was also noted that whether a support person 'assists' the employee at a disciplinary meeting is relevant when considering s.387(d).

For the purposes of s.387(d), it was found that the support person sufficiently assisted the employee and that there was no unreasonable refusal by the employer.