What is the difference between a representative and a support person?
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 in 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 … with all the messy and expensive consequences
In regard to the role of the support person, this is someone who comes along to provide moral and emotional support. They are typically a friend, colleague or family member. A representative, on the other hand, is someone who is usually hired by your 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.
It is important to note that the law does not make any distinction between the rights of those who appear as support persons versus representatives, and by being present at the meeting, the support person is implicitly let in on the discussion.
They should be permitted to take notes and hear what is being said.
If the employee wants to speak through their support person, then that is their choice.
The consequence of this is that you are required to take what the support person says as part of the employee’s response.
If you are concerned about what the support person is saying on the employee’s behalf, you can remind the employee that by hearing from their support person, you will treat whatever that person has to say as the employee’s own words.
If you feel it is necessary, you can offer to adjourn the meeting for the employee and their support person to consider that. In my experience you may find that this prompts the employee to correct or reconsider what has been said on their behalf.
It is important for us all to remember that these meetings, especially as they potentially relate to the employee’s job, can be very stressful.
Because of this some employees will struggle to express their views. In many cases the support person is likely more dispassionate and unaffected by nerves, and has the ability to translate the employee’s thoughts into words. That is, they may be able to promote the employee’s interests in a way that the employee is rendered incapable of doing themselves.
Understanding the role of an employee’s support person is an important aspect of getting the disciplinary process right – reducing the potential for legal fees and damages later.
The Employment Court has summarised the extent of a representative’s involvement this way:
“A representative of a person at a disciplinary meeting is not a mute observer … Such a person must be able to speak on behalf of an employee, to intervene in the process, and to give explanations where necessary.”
In other words, if you prevent a representative from speaking up and speaking for an employee during a disciplinary meeting, you may be found to have failed to give them a real opportunity to have the support and representation necessary to ensure you have conducted a fair process and therefore breached natural justice.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.