Under Section 387 (d) of the Fair Work Act 2009, Australian employees generally have the right to a support person during discussions relating to dismissal. Your employer cannot unreasonably refuse this request and doing so could form part of an unfair dismissal claim.
Before you walk into that meeting, understand this: a support person is there to provide emotional support and witness the process. They’re not your lawyer. They’re not your spokesperson. They’re your anchor in what can be an incredibly stressful situation.
However, choosing a lawyer as your support person does offer significant benefits, including:
- Ensuring your employer follows the law and provides proper procedural fairness, as they are aware a legal professional is present; and
- Having a lawyer who can ask the right questions—something the team at Fair Workplace Solutions is highly skilled at doing.
Can My Employer Deny a Support Person? (The “Unreasonable Refusal” Test)
No, generally they cannot. Section 387 (d) of the Fair Work Act specifically states that employees must be given an opportunity to have a support person present in discussions relating to the termination of their employment. Unreasonable refusal of this request can become grounds for an unfair dismissal claim, as it demonstrates the dismissal process wasn’t conducted fairly.
What counts as “unreasonable”? The Fair Work Commission has found refusals unreasonable when employers provide no valid reason, when they claim the meeting isn’t disciplinary when it clearly is, or when they impose arbitrary restrictions on who can attend.
Your Refusal Rebuttal Script
If your employer attempts to deny your request, use this response:
“I am requesting a support person under Section 387 (d) of the Fair Work Act. If you are refusing this request, I need you to provide the reason for this refusal in writing before we proceed. I understand that unreasonable refusal may be considered in any subsequent Fair Work Commission proceedings.”
Stay calm. Don’t argue. Simply make the request and document their response.
Is It a Valid Meeting? Quick Assessment
Your right to a support person applies in specific circumstances:
A disciplinary meeting triggers Section 387 protections. If you’ve been called in to discuss alleged misconduct, poor performance, or any matter that could lead to termination, you have the right to request a support person.
A redundancy consultation meeting also triggers these protections. When your employer is consulting with you about potential redundancy, you’re entitled to support.
A show cause meeting, where you’re asked to explain why you shouldn’t be terminated, absolutely requires this protection.
However, a routine catch-up, general team meeting, or informal chat about your workload doesn’t typically trigger Section 387 rights. The key question is whether the meeting relates to potential dismissal.
The Role: Speaking, Notes, and “Advocacy”
Understanding what your support person can and cannot do prevents them from being removed from the meeting which would leave you worse off than if they’d never attended.
Support Person vs. Advocate: The Critical Differences
| Activity | Support Person | Advocate/Union Rep |
| Provide emotional support | Yes | Yes |
| Take detailed notes | Yes | Yes |
| Request breaks | Yes | Yes |
| Speak on behalf of the employee | No | Yes |
| Answer questions for the employee | No | Yes |
| Argue points of law or procedure | No | Yes |
| Cross-examine witnesses | No | Yes |
| Negotiate outcomes | No | Yes |
The distinction matters enormously. If your support person starts advocating, answering questions on your behalf or arguing with management, your employer can legitimately ask them to leave or reschedule the meeting without them present.
The In-Meeting Protocol
Your support person should follow these guidelines:
- They should take detailed notes of who said what and when. Record the date, time, attendees, and key statements verbatim where possible. These notes may become crucial evidence later.
- They should request a break if you become emotional or overwhelmed. A simple “Can we take five minutes?” is entirely appropriate and demonstrates the employer is conducting the process reasonably.
- They should help you understand questions quietly. If you’re confused by something asked, they can lean over and clarify, but they cannot answer for you.
- They must not answer questions directed at you. Even if they know the answer and you’re struggling, the employer needs to hear from you.
- They must not argue with the employer or challenge their statements. This crosses the line from support into advocacy.
- They must not threaten consequences or mention lawyers. This escalates the situation and may be used against you.
- They can ask questions for clarifications.
Who Can Be Your Support Person?
Choosing the right person can make or break the meeting’s outcome. The wrong choice introduces additional stress, potential bias claims, and may even harm your position.
Selection Criteria
Consider whether your potential support person is emotionally detached from the situation. Someone who will become angry on your behalf or who has their own grievances with the employer is a liability, not an asset.
Assess whether they can remain silent when provoked. Employers occasionally test support persons with provocative statements. If your support person can’t resist responding, they’re the wrong choice.
Confirm their availability not just for this meeting, but for potential follow-ups. Consistency in who attends matters for credibility and continuity.
Evaluate their professional demeanour. Someone who presents calmly and professionally reflects well on you.
Why Family Members Often Fail as Support Persons
Your spouse, parent, or sibling loves you, which is precisely the problem. Their emotional investment makes objectivity nearly impossible. When they hear something unfair said about you, their instinct is to defend you, which crosses into advocacy.
Family members also carry the burden of knowing your entire history with the employer, every complaint you’ve made at home, every frustration you’ve vented. This knowledge can leak into their body language, tone, or worse, their comments.
A colleague, former colleague, or professional acquaintance often makes a better choice. They can witness objectively, take accurate notes, and provide support without the emotional volatility.
Can a Former Employee Be Your Support Person?
Yes, legally they can. However, this carries risks. Your employer may argue the former employee has bias (particularly if they left on poor terms) or that they have a vested interest in the outcome. If you choose a former employee, select someone who left amicably and has no pending claims against the employer.
Applying the Rules: Investigations, Performance Reviews, and Redundancy
Different meeting types carry different considerations, even though your underlying right remains the same.
Performance Review Meetings
Standard performance reviews don’t automatically trigger Section 47 rights. However, if the review might lead to a Performance Improvement Plan (PIP), disciplinary action, or dismissal, you’re entitled to request a support person.
The warning sign is usually in the meeting invitation. Phrases like “formal performance discussion,” “concerns about your performance,” or “required attendance” suggest this isn’t a routine check-in.
Workplace Investigations
When you’re being investigated for alleged misconduct, your support person becomes crucial for witnessing the process. Investigations can feel like interrogations, and having someone present protects both you and the employer from later disputes about what was said.
During an investigation meeting, answer questions directly and don’t volunteer additional information. Your support person should note every question asked and your response. If you’re unsure about a question, it’s acceptable to say “I need to think about that” or “I don’t recall the specific details.”
Redundancy Consultations
Redundancy consultation meetings absolutely trigger your support person rights. These meetings directly relate to potential termination of your employment, and the Fair Work Act requires genuine consultation, which includes allowing you to have support present.
Your support person can help you understand the selection criteria used, note any inconsistencies in the employer’s explanation, and provide emotional support during what’s often a devastating conversation.
Key Terms Explained
A show cause meeting is a formal meeting where your employer presents allegations against you and gives you an opportunity to respond before making a decision. Think of it as your chance to present your side before a verdict.
Natural justice (also called procedural fairness) means you have the right to know the allegations against you, the right to respond to those allegations, and the right to have an unbiased decision-maker. Having a support person is often considered part of procedural fairness.
A Performance Improvement Plan (PIP) is a formal document outlining performance deficiencies and required improvements within a set timeframe. Failure to meet PIP requirements often leads to termination, which is why PIP-related meetings trigger support person rights.
Unfair Treatment: What Happens If Your Rights Were Denied?
If your employer unreasonably refused your support person request and then terminated your employment, this refusal becomes part of your unfair dismissal case. It demonstrates the dismissal wasn’t conducted fairly, even if the substantive reasons for termination were valid.
Immediate Steps After Denial
Document everything in writing as soon as possible after the meeting. Note the date and time of the meeting, your specific request for a support person, who refused and what reason (if any) they provided, and what occurred in the meeting itself.
If you haven’t yet been terminated, send a follow-up email to your employer restating your request and noting their refusal. This creates a written record that’s difficult to dispute later.
If you’ve been terminated and believe the denial of a support person contributed to an unfair process, you have 21 calendar days from the date of dismissal to lodge an unfair dismissal application with the Fair Work Commission.
Seeking Further Assistance
The Fair Work Commission provides information about the unfair dismissal application process on their website.
If you would prefer personal support, or if your situation is complex, particularly if it involves discrimination, bullying, or multiple procedural failures, consider seeking advice from Fair Workplace Solutions, our employment lawyers will be able to advise the best course of action and next steps for you.
Your right to a support person exists because workplace meetings about termination carry enormous consequences. Exercise that right. Choose your support person wisely. And document everything.
You may contact Fair Workplace Solutions if you choose to have a lawyer act as your support person. We regularly attend workplace meetings in this role and have extensive experience ensuring employees are treated fairly throughout the process. By engaging our team, you gain the confidence that your employer will not take advantage of you.
In many matters, our involvement has directly contributed to decisions to terminate employment being reconsidered or reversed.