Unsure whether you can veto an employees’ choice of support person or what to do if they become disruptive? Experts outline the 101 of support people in difficult HR meetings.

Difficult conversations are an inevitable aspect of HR practitioners’ work. Whether it’s addressing workplace complaints, misconduct or poor performance, these conversations need to be had tactfully and compliantly.

With AHRI’s latest Australian Quarterly Work Outlook report showing that redundancy intentions are on the rise for the September 2024 quarter, difficult conversations regarding redundancies are likely happening in many workplaces across Australia at the moment.

In an effort to make these conversations less challenging for employees, encouraging them to invite a support person to join them is an effective way to offer an emotional landing pad for the affected employee and help them feel secure.

“One thing that’s overlooked is the fact that there’s often not an inherent right to a support person,” says Michael Byrnes, Partner at Swaab law firm.

While some industrial instruments or employment policies might refer to a ‘right’ to a support person, it’s not an automatic right across the board, he says. However, if you can prove you offered an employee the chance to have someone join a challenging HR meeting, it’s most likely going to work in your favour if you are brought in front of the Fair Work Commission (FWC) for an unfair dismissal or adverse action claim, for example. 

However, the presence of a third-party support person can also introduce complexities for HR. If they don’t understand the limitations of their involvement in the meeting, or if they become too emotionally involved, they can quite easily derail an important HR meeting, such as a redundancy conversation.

Below, we speak with a legal expert and workplace investigation specialist about some common challenges that emerge when dealing with an employee’s chosen support person.

There are limited circumstances where you can veto a support person

A support person can be anyone from a trusted colleague, a union representative, a friend, family member or colleague.

However, friends and family members, particularly partners, often don’t make for the best choice, says Byrnes.

“They are, understandably, often too emotionally invested in the interests of the employee,” he says. “[This] can lead them to not respect the boundaries.”

Their presence could also inadvertently heighten the emotions of an already emotional employee.

“Some people think a support person is an advocate. But they’re not there to make representations on behalf of the employee.” – Michael Byrnes, Partner, Swaab

With this in mind, you might be wondering if it’s ever appropriate to veto someone’s choice of support person. 

It’s possible, but rarely advisable. So long as an employees’ support person isn’t disruptive, it should be at the employees’ discretion as to whom they deem to be adequate support for them (this was proven by the 2019 case of the New Zealand employee who nominated a clown to be his support person for his redundancy meeting).

“[You could] certainly [veto someone] where there’s a conflict of interest or where the disclosure of information in the meeting is going to be such that creates a conflict of interest involving the support person,” says Byrnes.

For example, if the support person is a current employee who was a witness in an investigation pertaining to the conversation, that would be a conflict of interest.

“HR [practitioners] do need to put their foot down sometimes and say, ‘No. That’s not an appropriate choice,’” Jason Clark, Director at Worklogic, previously told HRM.

“I have seen someone try to act as a support person to the complainant in an investigation and then try to be the support person for the respondent also. That’s a conflict of interest and you can’t allow that.”

However, as outlined in a previous HRM article, employers need to exercise caution when vetoing support people, as demonstrated by a 2012 FWC case.

After an employee head-butted a colleague at a Christmas party, he sought to have a union representative present at his disciplinary meeting. His employer refused and instead allocated its own support person for the employee.

The presiding Commissioner described this as a classic example of a lack of procedural fairness, stating, “There was no proper investigation undertaken, the relevant manager… ambushed the applicant with the allegations, and he unreasonably refused to allow the applicant a support person of his choice. It is difficult to imagine a more blatant example of a denial of natural justice.”

While the employee in this circumstance wasn’t reinstated, it’s still a good example of how mounting examples of poor procedural fairness could work against an employer should they be put in front of the FWC.

They’re not there to be an advocate

A common misconception about the role of a support person is that it’s their job to advocate on behalf of the employee. It’s not.

“A support person, generally speaking, needs to remain mute during the meeting. It’s not their place to speak on behalf of the employee,” says Byrnes. “Some people think a support person is an advocate, but they’re not there to make representations on behalf of the employee.”

Put simply, they are there to be in the employee’s corner. This means they might offer emotional support if an employee becomes upset and “bolster their confidence” to help the employee speak for themselves.

“That’s the emotional side of their role, then there’s the practical aspect,” says Byrnes. “The support person can take notes of the meeting, for example, although they would need to strictly comply with any confidentiality obligations.

“During a break in the meeting, [they] might also offer some tips or observations about what the employee may want to say to their employer when the meeting resumes. They might hand a note to the employee [during the meeting to suggest] something they might want to say. It generally extends to that level of practical support, but it shouldn’t go beyond that.”

Byrnes notes that it would be appropriate for the support person to speak out in instances where they feel the employee is being mistreated or denied their rights – such as having a challenging conversation over a hours without a break – but beyond that, they should keep communication to a minimum.

“Essentially, the role of a support person is to help the employee to present their own case or position. It’s not to do it for the employee, so point that out to the support person in advance. Make them feel welcome – there’s no need to be unnecessarily hostile; treat them as a guest – but you’re perfectly entitled to set out the rules for them, especially if they are friends or family members.”

AHRI members can access a free on-demand webinar outlining expert tips for managing a redundancy process by logging into their member portals. If you want to ensure your HR team is up-to-date on the latest in employment law, sign them up for AHRI’s Introduction to HR Law corporate training package.

Preparing the support person

As part of consultation obligations, employees should be given enough notice of an HR meeting via formal notice, such as a letter or email, allowing them enough time to prepare themselves and, should they wish to, invite a support person to attend the meeting.

While employers/HR have no obligations to contact support people ahead of the meeting, it’s advisable to give the employee all the relevant information to pass onto their support person.

“You’d ask them to notify their support person of the requirements of the meetings and outline the appropriate scope of a support person, such as noting that they’re not there to be an advocate, they’re not to make submissions or representations on the employee’s behalf and that they’re there to provide practical and emotional support only,” says Byrnes.

“The expectation of confidentiality should also be advised to the support person in advance.”

“I have seen someone try to act as a support person to the complainant in an investigation and then try to be the support person for the respondent also. That’s a conflict of interest and you can’t allow that.” – Jason Clark, Director, Worklogic

A support person should be made aware of the context of the meeting ahead of time. Although it’s not the employer’s obligation to provide this context, it’s wise to encourage the employee to do so. This helps ensure the support person doesn’t respond in an unproductive way when new information is shared during the meeting.

“I had instance where I investigated sexual harassment claim and the employee being investigated brought along his partner as the support person without telling her about the claims [made against him],” says Clark. “It can become quite problematic and potentially derail the process if the support person is blindsided by the allegations,” said Clark.

What if they breach the boundaries?

If an employees’ support person becomes disruptive, an employer is well within their right to pause the meeting to remind the person of the parameters of their role, says Byrnes.

If it escalates further and they become rude, aggressive or overly emotional, then the HR practitioner can adjourn the meeting.

“You can let the employee know that their support person is not welcome back and give the employee 24-48 hours to find another suitable support person before you reconvene the meeting.”

Employers should remember they’re entitled to set the rules, says Byrnes, and support people need to be made aware of this from the outset.

This is the second installment in HRM’s redundancy 101 series. You can read our first article on reasonable redeployment offers here. All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.