What Is Employer Responsibility To Provide A Support Person During Disciplinary Proceedings?

An application for unfair dismissal was placed with Fair Work Australia (Ms Kelly Anne Biggs-Venz v Ozcare) by Ms Kelly Anne Biggs-Venz (the Applicant).

The Applicant had been employed by Ozcare (the Respondent) for almost 2 years, and had been subject to a number of disciplinary actions spread over her period of employment. These actions had resulted in a first warning being issued in June 2008 and a final warning being issued in April 2009. In the disciplinary action leading up to termination which occurred in November 2009, the Applicant was asked to respond to a number of issues, and ultimately to show cause why her employment should not be terminated. The Respondent terminated the applicant’s employment as the Respondent was not satisfied that [the applicant] had demonstrated reasons why her employment should not be terminated.

Senior Deputy President (SDP) Richards was presented with submissions in relation to performance and the termination; and in addition to considering the evidence provided - considered the relevant parts of the Fair Work Act 2009 (the Act).

In particular Section 387(d) requires consideration of any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.

SDP Richards referred to the Explanatory Memorandum of the above section noting that it only becomes a relevant consideration when an employee has made a request for a support person present but that request is refused. Although the Memorandum makes that clear, it was further noted that it will be the case that in certain circumstances the capacity of an employee to respond to the allegations put to him or her in the absence of a third party support person may be an issue relevant to [Section 387(h) which allows FWA to consider any other relevant matters].

Towards that end in the present application, SDP Richards doubted that the Applicant lacked the capacity to respond to the allegations being put to her in the absence of a support person being present. This view was supported by the dealings the Applicant had with the Respondent in relation to disciplinary matters.

In consideration of all of the information provided, it was found that the dismissal was not unfair - and the application was dismissed – but a reminder was made to employers in relation to requests for a support person during dismissal discussions.