Support Persons in meetings: your rights explained

Under Australian workplace law, while employers do not have to offer a support person automatically, they must not unreasonably refuse if an employee requests one. If they do refuse without a good reason, it can seriously undermine the fairness of any dismissal that follows.

Understanding how support persons work — and how employers must handle requests — is essential for protecting your rights during disciplinary action.

What Is a Support Person — and What Are They Allowed to Do?

A support person is someone who attends a disciplinary or dismissal-related meeting to assist and support the employee. Their main role is to provide emotional support and act as a witness to what occurs.

However, a support person cannot:

• Actively argue or advocate on your behalf

• Interrupt or take control of the meeting

• Present or defend your case like a lawyer

Their role is limited to being present for support and to observe — not to speak on your behalf unless specifically invited to.

A support person could be a union representative, a trusted colleague, a family member, or even a friend. Importantly, you have the right to choose who you want, provided they behave appropriately.

When Does an Employer Have to Allow a Support Person?

There is no positive duty for an employer to offer you a support person automatically. However, if you request one, your employer must not unreasonably refuse the request.

If you don't ask, the employer is not obliged to suggest it. But if you do request a support person, the employer must give proper consideration and accommodate it unless there is a strong and genuine reason not to.

Refusing a support person for reasons such as mere inconvenience or minor scheduling issues is likely to be seen as procedurally unfair by the Fair Work Commission.

What Happens If an Employer Refuses a Support Person?

If an employer unreasonably refuses your request, it can weigh heavily against them if the matter goes before the Fair Work Commission.

The refusal can be a significant factor when assessing whether a dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009. Even if the misconduct itself is proven, procedural unfairness in the handling of the disciplinary process can still render a dismissal unfair.

Case Studies: Where Employers Got It Wrong

The Fair Work Commission has seen several cases where the mishandling of support person requests led directly to findings of unfair dismissal.

Dewson v Boom Logistics Ltd
An employee accused of serious misconduct requested a specific union official to be his support person during the disciplinary meeting. Instead, the employer insisted on appointing a different delegate without involving the employee. The Commission found this substitution was unreasonable. Combined with other procedural errors, the dismissal was held to be unfair.
Lesson: Employees have the right to choose their support person — employers cannot simply appoint someone else.

Laker v Bendigo and Adelaide Bank Limited
An employee facing a dismissal meeting asked for a short delay so a union representative could attend. The employer refused to reschedule, pressing ahead without the requested support person. The Commission found the refusal was unreasonable, contributing to a finding that the dismissal process was procedurally unfair.
Lesson: Reasonable rescheduling requests should not be ignored lightly.

Lankam v Federal Express (Australia) Pty Ltd
The employee requested a union representative to attend a disciplinary meeting, but the employer allowed only an HR representative to be present. The Commission noted the employee’s limited English skills and ruled that the employer’s refusal contributed to a finding of procedural unfairness.
Lesson: Particular care is needed where language barriers exist — employers must not deny meaningful support.

Where Refusal IS Reasonable: Understanding the Other Side

There are also situations where the employer’s handling of support person requests was found to be proper.

Jalea v Sunstate Airlines
An employee who was later dismissed requested a last-minute rescheduling so her support person could attend. The employer had provided reasonable notice of the meeting. The Commission found that refusing to reschedule under those circumstances was not unreasonable.
Lesson: Timing matters — employers are not expected to accommodate every late change.

Mabior v Baiada Group Pty Ltd
Here, the employee alleged they were denied a support person. However, the Commission preferred the employer’s evidence and found no breach of the employee’s rights.
Lesson: Credibility matters — unsupported claims are unlikely to succeed.

Dissanayake v Busways Blacktown
The employee did not actually request a support person and later argued that the employer should have offered one. The Commission made it clear: without a request, there’s no obligation.
Lesson: You must ask if you want a support person — employers don’t have to guess.

Biggs-Venz v Ozcare
Similar to Dissanayake, no evidence was presented that the employee requested a support person. As a result, there was no unreasonable refusal.
Lesson: Always put your request on record.

Mydlowski v AAA Cleaning
The employee's preferred union representative was unavailable, but another suitable support person attended the meeting. The Commission found that the employee had been sufficiently assisted and there was no unfairness.
Lesson: Alternatives can be acceptable if the employee is still properly supported.

Key Takeaways for Employees

If you are facing a disciplinary meeting:

• Request a support person early: Don’t wait until the meeting has already started. Make your request in writing if possible.

• Be clear about who you want: Name your chosen support person and, if needed, explain their availability.

• Be reasonable: Request a meeting delay only if genuinely needed, and provide reasonable notice.

• Know the limits: Understand your support person’s role — they’re there to observe and support, not argue for you.

• Act quickly if refused: If your employer unreasonably refuses your support person request, not everything done in writing, and seek advice from us immediately.