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Send In the Clowns

27 September 2019

Hitting news headlines around the world recently, Josh from Auckland brought a clown with him as a support person to a meeting with his employer, instead of the usual family member, colleague, friend or lawyer representative. Josh was aware he was likely going to be told at the meeting he was to be made redundant due to job cuts after the loss of a large account at the advertising firm he worked for. During the meeting the clown blew up balloons and mimed crying when the redundancy paperwork was handed over to Josh lightening the mood and no doubt taking the mickey out of his employer.

One aspect of being a fair employer is allowing your employees to have support and advice during disciplinary meetings. Most employers are aware that an employee is entitled to a support person or representative in a disciplinary meeting, but they are not fully aware what role this person plays. Getting it right by ensuring the employee knows what they are entitled to, what type of person is suitable, and allowing the support person to perform their role, will minimise the risk of a later claim that you got the process wrong.

So exactly what is a support person, why do they exist and what is their role compared with a legal representative?

Support Person v Representative

Two different terms are given to someone who attends a disciplinary meeting with an employee: ‘support person’ and ‘representative’.

There are no fixed legal distinctions between these two roles, but in general:

  • A support person is someone who comes along to provide moral and emotional support. They are typically a friend, colleague or family member. They are not there to give legal advice as such.
  • In contrast, a representative is someone who is usually hired by the employee to give them specific advice. They may be lawyers, non-lawyer advocates or union reps. Under the Employment Relations Act an employee is entitled to appoint anyone they wish to be their representative.

Four key points for an employer to keep in mind

  1. Give the employee enough time to obtain a competent support person. An employer needs to not only tell an employee that they are entitled to a support person, but also make sure that the employee is told that it is in their interests to obtain a competent representative. This entitlement holds no weight unless an employee is given enough time to obtain a competent support person. For example, an employer should not tell an employee late Friday afternoon that there will be a disciplinary meeting first thing Monday morning and that they are entitled to a support person at that meeting. Realistically, the employer in this situation is limiting who the employee can have as their support person.
  2. Record that the employee has been given the opportunity to have a support person present. Where an employee chooses not to have a support person present at the disciplinary meeting, the employer should ensure that they make a note of that fact and also seek their reason. This reason should also be included in the employer’s interview notes.
  3. The purpose of the support person. The support person is there to provide “wise counsel” and be an advocate for the employee. This is in the context of a situation where the employee may not be able to think clearly without assistance from someone who is “on their side”. The support person enables the employee to be heard effectively, which is an important requirement of natural justice.
  4. Active participation. As the purpose of the support person suggests, the support person is allowed to actively participate in the meeting on the employee’s behalf. The support person is not present just to provide a witness for the employee, and therefore does have a speaking role. The support person needs to be able to speak on behalf of the employee, intervene in the process and give explanations where necessary.

Conclusion

You are obliged to invite your employees to bring a support person or representative to attend a formal meeting with them. Failure to do this could result in a personal grievance.

If the invitation is utilised you must not tell the support person or representative to be quiet, or prevent them from speaking on the employee’s behalf. If you do so, you risk reaching an unjustified decision at the end of the disciplinary process.

If necessary, make the employee aware that you will consider that person as their spokesperson so that, if they do not agree with what their support person is saying, they will be prompted to let you know.