You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. What should you do next?

The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. In this practical guide, we’ll take a look at the differences between a support person and a union representative, and share tips on complying with your legal obligations. 

You must allow a support person where reasonable

When considering whether an employee was unfairly dismissed, the Fair Work Commission will look at whether the employer unreasonably refused to allow a support person to assist in any discussions relating to an employee’s potential dismissal. 

Employers should never refuse the presence of a support person, except in rare circumstances where it would be reasonable to do so, for example, if allowing the support person to attend would mean rescheduling the meeting at the last minute. You should also ask the employee if they’d like to nominate a support person to attend their meeting with at least 24 hours’ notice.

A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). Their role is generally to provide emotional support, take notes and clarify questions. Their role is not to speak on behalf of, or advocate for the employee. 

The importance of clarifying the union official’s role

If the employee brings a union official to the meeting, it’s important to establish whether their intended role is as a support person or as the employee’s union representative. You should clarify this before the meeting begins. 

If a union official is acting as a support person and then starts to act more like a union representative during the meeting, you should consider pausing the meeting to remind them of their role, and record this in your notes.

Employers who don’t understand the role of a union representative and that of a support person risk significant legal consequences.

This is best illustrated by the case of Vong v Sika. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. The union official refused to sign, and stated that he was there to act as Vong’s union representative. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. The same thing occurred at the next two meetings. 

At the third meeting, the HR manager left the room and returned with a notice of dismissal. Vong argued that he had been unfairly dismissed because he was a union member. Vong’s claim was successful, on the basis that his employer effectively forced him to relinquish his right, as a union member, to be represented by the union. 

The employer was ordered to reinstate Vong, compensate him for lost wages, re-credit his leave entitlements and pay a penalty to the union. 

This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. 

What employers can’t do

It’s illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against an employee because they sought union representation. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings and commencing disciplinary processes.

In practice, this means if even a fraction of the reason an employer took adverse action against an employee was because the employee wanted union representation, that employer can be hit with a general protections claim in the Fair Work Commission. 

This doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. Rather, an employer must be able to demonstrate that when the decision to take adverse action was made, the employee’s desire to be represented by their union was not a reason for that decision.

For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. These reasons should be communicated to the employee as distinct and separate conversations from any discussions about union representation.

Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards or if you’re not sure about the role of a union official in disciplinary meetings.

Karl Rozenbergs is a partner, and Gemma Hallett a lawyer, at Hall & Wilcox.