Under section 387(d) of the Fair Work Act 2009 (Cth), an employee facing dismissal has the right to request a support person during discussions relating to termination. On its face, this appears simple — a basic safeguard to ensure procedural fairness.
In practice, however, the “support person” has become one of the most litigated and misunderstood aspects of dismissal processes in Australia.
Employers tend to fall into one of two traps: either they refuse or discourage the presence of a support person, or they allow the meeting to be overtaken by a union delegate, lawyer-like advocate, or emotionally charged family member.
Both mistakes can turn an otherwise defensible dismissal into a finding that it was “harsh, unjust or unreasonable.”
Why the Support Person Right Matters
Section 387 requires the Fair Work Commission (FWC) to consider whether an employer unreasonably refused to allow a support person when assessing unfair dismissal claims.
The provision does not require employers to offer a support person proactively. However, if an employee requests one, refusal must be reasonable. In most circumstances, it will not be.
The Commission treats this issue as part of procedural fairness. Even where there is a valid reason for dismissal — such as serious misconduct or poor performance — procedural flaws can tip the balance against the employer.
It is not uncommon to see decisions where the misconduct is clearly established, yet the dismissal is still deemed unfair due to process failures. Denial of a support person is one of the most common errors.
The Debate: Silent Observer or Advocate?
There is persistent debate about what a support person is actually allowed to do.
Many managers and business owners believe the role is limited to silent observation — someone who sits in the room to provide emotional support but does not speak out loud.
On the other hand, union delegates often view themselves as advocates. Family members sometimes attempt to intervene, challenge allegations, or argue on behalf of the employee.
The Fair Work Act does not define the scope of the support person’s role. Nor does it prohibit them from speaking.
The FWC has consistently indicated that while the support person is not there to run the meeting, they may assist the employee — including by seeking clarification, requesting breaks, or providing advice.
The key issue is not whether the support person speaks. The issue is whether the employer maintains control of the process.
When Support Persons Hijack the Meeting
Problems arise when employers either:
- Attempt to silence the support person entirely, or
- Allow the meeting to become adversarial and chaotic.
Common scenarios include:
- The support person answering questions on behalf of the employee
- Interrupting management repeatedly
- Cross-examining decision-makers
- Recording without consent
- Threatening legal action mid-meeting
If unmanaged, this can derail the purpose of the meeting — which is to allow the employee to respond to allegations.
However, excluding the support person abruptly or terminating the meeting can create even greater risk.
The better approach is proactive management.
Refusing a Support Person: A Costly Shortcut
One of the most dangerous statements a manager can make is: “We need to push ahead today.”
Operational urgency rarely justifies refusing a support person request. The FWC generally expects employers to accommodate reasonable delays to enable attendance.
Even short postponements — 24 to 48 hours — are often seen as reasonable. Refusal may be viewed as a denial of procedural fairness.
Employers sometimes argue that the employee failed to request a support person. However, where the employer created pressure to proceed immediately, the Commission may still potentially view the process as unfair.
The lesson is clear: if an employee requests a support person, grant the request unless there are genuinely exceptional circumstances.
Managing the Role Without Losing Control
Allowing a support person does not mean surrendering authority.
Employers should:
- Confirm in writing before the meeting that a support person may attend.
- Clarify the purpose of the meeting and the support person’s role.
- State ground rules at the beginning of the meeting.
- Remind all participants that the employee must answer questions personally.
- Adjourn if behaviour becomes disruptive.
A simple script can be effective:
“You are welcome to support [Employee], including by requesting clarification or breaks. However, [Employee] will need to respond directly to questions.”
This approach balances procedural fairness with managerial control.
Documentation Is Critical
If the support person behaves disruptively, document it.
If the meeting is adjourned, record why.
If the employee declines the offer of a support person, confirm that in writing.
When matters reach the Commission, credibility often rests on contemporaneous records.
The Bigger Picture: Procedural Fairness Is The Key
Many employers focus exclusively on proving misconduct. However, unfair dismissal claims are rarely decided on substance alone.
The Commission assesses whether the dismissal was:
- Based on a valid reason
- Communicated clearly
- Supported by an opportunity to respond
- Procedurally fair
A mishandled support person request can undo an otherwise strong case.
The dismissal may still stand — but compensation risk increases significantly.
If you cannot manage the room, you cannot defend the dismissal.