Thinking | 11 October 2019
Unions in disciplinary meetings: your practical guide
You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. What should you do next?
The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. In this practical guide, we’ll take a look at the differences between a support person and a union representative, and share tips on complying with your legal obligations.
Starting point: you must allow a support person where reasonable
When considering whether an employee was unfairly dismissed, the Fair Work Commission will look at whether the employer unreasonably refused to allow a support person to assist at any discussions relating to an employee’s potential dismissal.
This means employers should never refuse the presence of a support person, except in rare circumstances where it would be reasonable to do so (for example, if allowing the support person would mean rescheduling at the last minute). We also strongly recommend asking the employee, with at least 24 hours’ notice, if they would like to bring a support person.
A support person can generally be anyone that the employee chooses, and their role is generally to provide emotional support, take notes, and clarify questions. Their role is not to speak on behalf of, or advocate for, the employee.
When a support person isn’t a support person: the importance of clarifying the union official’s role
If the employee brings a union official to the meeting, it is important to establish whether their intended role is as a support person or as the employee’s union representative. You should clarify this before the meeting begins.
If a union official who is acting as a support person starts to act more like a union representative during the meeting, you should consider pausing the meeting to remind them of their role, and record this in your notes.
Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. This is best illustrated by the case of Vong v Sika. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. The employer’s HR manager asked the union official to sign a document which required him to act as an observer, rather than as a representative. The union official refused to sign, and stated that he was there to act as Vong’s union representative. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. The same thing occurred at the next two meetings.
At the third meeting, the HR manager left the room and returned with a notice of dismissal. Vong argued that he had been unfairly dismissed because he was a union member. Vong’s claim was successful, on the basis that his employer effectively forced him to relinquish his right, as a union member, to be represented by the union.
The employer was ordered to reinstate Vong, compensate Vong for lost wages, re-credit his leave entitlements, and pay a penalty to the union.
This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting.
Employers cannot take adverse action because an employee sought union representation
It is illegal under the Fair Work Act 2009 (Cth) for an employer to take adverse action against an employee because that employee sought to be represented by their union. Adverse action can include dismissal, discrimination, demotion, suspension, issuing warnings, and commencing disciplinary processes.
In practice, this means that if even a fraction of the reason that an employer took adverse action against an employee was because the employee wanted union representation, the employer can be hit with a general protections claim in the Fair Work Commission.
This doesn’t mean that an employer can’t discipline or dismiss an employee when their union representative is in the room. Rather, an employer must be able to demonstrate that when the decision to take adverse action was made, the employee’s desire to be represented by their union was not a reason for that decision.
For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. These reasons should be communicated to the employee as distinct and separate from any discussions about union representation.
Check your enterprise agreements and modern awards
Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. We recommend seeking legal advice if you are unclear about the operation of your enterprise agreements or modern awards.
If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. Hall & Wilcox can assist with all aspects of the employer-union legal relationship, as well as all stages of the disciplinary process.
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