© 2017 Sebastian De Brennan. Barrister at Law

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EMPLOYMENT LAW & DO I NEED A SUPPORT PERSON?

November 29, 2017

 

EMPLOYMENT LAW & DO I NEED A SUPPORT PERSON?

 

Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of employment law before acting or relying on any of its content.

 

Having your lawyer with you at a meeting to discuss workplace issues or allegations can be a real advantage. However, as a general proposition, an employer is not obliged to permit your lawyer to attend a workplace meeting where a matter has not gone before the Fair Work Commission or a court. See for example the decision of the Full Bench of the Fair Work Commission, Victorian Association for the Teaching of English Incorporated v Debra de Laps [2014] FWCFB 613.

 

Assuming your employer does not permit you to have a lawyer present at a workplace meeting to discuss allegations against you or other workplace issues, you should insist on having a “support person” present.

 

Although the practice from organisation to organisation can vary, the general position is that a support person does not enjoy a right to speak on your behalf or otherwise “advocate” for you. That is to say, their role is largely a passive one.

 

Nonetheless, employees should choose a support person that they consider is knowledgeable of the organisation’s workings, are fair and not biased and who will take the responsibility of “sitting in” on any meeting seriously.

 

The question of whether a support person was allowed to sit in at a meeting involving an employee can be important in an employment dispute. For example, under the unfair dismissal laws, e.g. section 387(D) of the Fair Work Act 2009 (Cth), one of the matters that is considered in assessing whether a dismissal from work was harsh, unjust or unreasonable is whether there was an unreasonable refusal to allow an employee to be accompanied by a support person.

 

Where an employee is denied a support person, this may constitute a breach of the principles of procedural fairness or natural justice.

 

Indeed, in certain circumstances, it may be unfair/not due process for an employee to prevent a lawyer from attending a meeting involving his or her employee client. In Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 Drummond J said that:

 

“The effect of the cases is that in the absence of statutory indication to the contrary, administrative bodies and lay tribunals are in general free to exclude lawyers; but the circumstances of the particular case may be such that a refusal to allow legal representation may constitute a denial of natural justice. This is likely to be so where complex issues are involved or where the person affected by the decision is not capable of presenting his or her own case. In this sense, it may be said that in certain circumstances the ‘right to legal representation’ is an element of natural justice".

 

By Sebastian De Brennan, Barrister, s.debrennan@humanrightslaw.com.au

 

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