Giving Notice for Possible Termination Meetings
When an employee has been dismissed, two of the numerous factors that the Commission must take into account in determining whether the dismissal was 'harsh, unjust or unreasonable' are:
1. whether the employee was given an opportunity to respond to any reason related to their capacity or conduct; and
2. any unreasonable refusal by the employer to allow the employee to have a support person present to assist at any discussions relating to dismissal.
Given this, it may seem reasonable for an employer to engage in the following practice:
(a) calling an employee into a meeting without little or no notice;
(b) refraining from notifying the the employee of the nature of the meeting beforehand;
(c) advising the employee that they may may bring a support person with them to the meeting;
(d) holding the meeting and dismissing the employee, provided that the employer has a 'valid reason' for the dismissal.
A recent decision of the Commission appears to take a different apprach.
In Roberts v McCreag Pty Ltd [2013] FWC 5505, the employee was called into a meeting but was not notified that it would be for the purpose of discussing his future employment. At the meeting, the employeewas presented with allegations and ultimately dismissed there and then.
Although there was no express refusal by the employer for the employee to have a support person present, "the meeting on 1 March 2013 was held without any notice of the purpose of the meeting. In these circumstances I am prepared to find that there was, by the actions of Mr Choi, an unreasonable refusal to allow the Applicant to have a support person present".
The reasoning of the Commission appears as though the requirement of notice of a meeting that may end in the termination of employment is consistent with a view that the role of a support person is not passive, and that there might normally be some element of preparation that a support person would undertake.
Given the above, it is advisable that where a meeting is to be held that may result in the termination of employment, an employer should disclose the nature of the meeting beforehand, and provide the employee with reasonable notice to arrange for a support person to be present that may support and assist the employee at that meeting.
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