Fair Work Support Person: How To Run Lawful Workplace Meetings

When you’re handling a difficult conversation with an employee - like a performance discussion, an investigation interview or a potential termination meeting - you’ll often hear the phrase “support person.”

As a small business owner, understanding the role of a Fair Work support person is essential. It’s not about making things harder for you - it’s about running a fair, defensible process that reduces the risk of claims and helps you reach a clear outcome with respect and care.

In this guide, we’ll explain when to allow a support person, what they can and can’t do, and how to run meetings confidently and lawfully in Australia.

What Is A Fair Work Support Person?

A support person is someone the employee chooses to accompany them to a workplace meeting that could have disciplinary consequences. This could be a colleague, friend, family member, union representative, or another trusted person.

The Fair Work Commission expects employers to conduct a fair process before taking disciplinary action. One of the factors the Commission will look at in an unfair dismissal claim is whether an employee “had an opportunity to have a support person present” at a meeting that may lead to termination.

Importantly, you don’t have a positive legal duty to provide a support person - but you should not unreasonably refuse the employee’s request to bring one. Offering or allowing a support person shows procedural fairness, which can be critical if your decision is ever reviewed.

If you’re weighing the risks of a dismissal, it’s worth being familiar with section 387 of the Fair Work Act factors the Commission considers in unfair dismissal cases.

When Should You Allow A Support Person?

Allow a support person whenever the meeting could reasonably lead to disciplinary action, a warning, suspension, or termination - especially if there are allegations of misconduct or performance concerns.

Common scenarios include:

• Initial or subsequent interviews as part of a workplace investigation.
• “Show cause” meetings where you’re considering termination or a final warning.
• Performance management meetings that could escalate to formal consequences.
• Medical or capacity meetings where continued employment is genuinely in question.

If you’re conducting a formal investigation, it’s also good practice to explain the process and options upfront. Where allegations are serious, you might consider standing down the employee (on pay) while you investigate, if your contract or policy allows it.

For “show cause” processes, provide a written notice that sets out the concerns and invites a response. A clear Show Cause Letter often accompanies the meeting invitation and notes the employee may bring a support person.

What Can (And Can’t) A Support Person Do?

The support person is there for support - not advocacy or representation (unless your policy or an applicable industrial instrument says otherwise). Their core role is to provide emotional support, help the employee understand the process, and take notes.

Permitted role

• Quietly support the employee (emotional support, note-taking).
• Ask clarifying questions about the process or timing.
• Help the employee confer privately during breaks.
• Assist the employee to articulate their response if needed (without taking over).

Not permitted role

• Answer questions on the employee’s behalf or cross-examine managers.
• Disrupt the meeting or refuse to follow reasonable directions about conduct.
• Record the meeting secretly where state/territory laws prohibit it without consent.

To keep things on track, set ground rules at the start: introduce attendees, explain the purpose of the meeting, confirm the employee’s right to a support person, and outline expectations for respectful, orderly conduct.

How To Run Meetings With A Support Person

Here’s a practical, step-by-step approach you can adopt across performance, investigation and disciplinary meetings.

1) Prepare the paperwork

• Send a written invitation that explains the purpose of the meeting, outlines the concerns at a high level and, where relevant, provides any documents the employee should review in advance.
• Let the employee know they can bring a support person and ask for the name in advance, if possible.
• Attach relevant policies or excerpts that apply to the issue (e.g. code of conduct, performance policy, disciplinary procedure).

For performance or conduct issues that may escalate, align your approach with your Performance Management Process so the steps are consistent and fair.

2) Open the meeting clearly

• Introduce everyone and record their roles in your notes.
• Confirm the employee received the invitation and documents and understands the purpose of the meeting.
• Note that a support person is present and confirm their role is to support, not advocate.
• Explain the process: you’ll outline the concerns, invite a response, consider any materials, and no decision will be made until you’ve considered everything raised.

3) Present the concerns fairly

• State the issues factually and neutrally. Reference specific dates, times, behaviours, and any evidence.
• Avoid exaggeration and keep judgemental language out of it.
• If this is part of an investigation, focus on the allegations, not conclusions, and explain the possible outcomes of the process.

4) Invite and genuinely consider the response

• Give the employee time to respond (in the meeting and, if reasonable, in writing afterward).
• Pause for breaks if requested, including to confer privately with the support person.
• Ask open questions to make sure you understand their position and any mitigating factors.

5) Close and follow up

• Confirm next steps and timing (e.g. when you’ll decide or reconvene).
• If the next step may be disciplinary action, outline possible outcomes without pre-judging.
• Send a written summary of what was discussed and the agreed next steps, then keep clear records in line with your Employee Privacy Handbook and privacy obligations.

Tip: If your policies allow, you can mutually agree to record the meeting for accuracy - but always check recording laws in your state and seek consent from all parties before recording.

Legal Risks, Compliance And Helpful Documents

Getting the support person piece wrong doesn’t automatically make a dismissal unfair. But if you unreasonably refuse a support person, rush the process, or fail to give a fair opportunity to respond, you increase your risks. This is especially important where termination is on the table.

Key compliance points for employers

• Don’t unreasonably refuse a support person for a disciplinary or investigation meeting.
• Give the employee clear written notice of concerns and enough time to consider and respond.
• Keep your approach consistent with contracts, policies, enterprise agreements or awards that apply.
• Document everything. Good notes and correspondence will be crucial if a decision is challenged.
• Make the decision-maker impartial where possible, and avoid pre-determining outcomes.

If you need to separate the employee from the workplace while you investigate serious allegations, check your contract and policy settings and consider suspension pending investigation (usually on pay) as a measured alternative to immediate dismissal.

Documents and policies that make this easier

Having the right documents in place makes it much simpler to run a fair, consistent process every time.

• Employment Contract: Sets expectations, reference to procedures, and any rights to suspension during investigations.
• Workplace Policy: A suite covering conduct, investigations, disciplinary procedures, and meeting protocols (including support person expectations).
• Show Cause Letter: A structured template and process helps you frame concerns and invite a response properly.
• Employee Termination Documents: Letters and checklists that ensure procedural fairness is followed and documented.
• Performance Management Process: A clear framework for coaching, warnings and escalation that aligns with your contracts.

Using consistent templates also helps managers keep language neutral and ensures you always include the support person option where appropriate.

What about investigations and mental health considerations?

If you’re conducting an internal investigation, plan it carefully. Define the scope, identify witnesses, gather documents, and give the employee an opportunity to respond at the right stage. Where mental health concerns are involved, be mindful of your safety and discrimination obligations and take a respectful, supportive approach that still allows you to address performance or conduct issues fairly. Your policies and processes should reflect this balance.

Do you need to delay a meeting to accommodate a support person?

Short delays are often reasonable, especially for serious matters. If the employee’s preferred support person is genuinely unavailable for an extended period and delaying would be impractical, you can offer alternative dates or allow a different support person. Keep a record of offers made and why a particular timing was reasonable.

Should you agree to a lawyer as a support person?

Generally, a support person is not an advocate and does not act as a representative. Whether you allow a lawyer to attend as a passive support person is a judgement call - consider the complexity of the matter, your policy, and whether their presence will help or hinder a fair process. Make the role boundaries very clear at the outset if you agree.

Linking the process to outcomes

After you’ve completed the meetings and considered the response, assess the appropriate outcome: no action, coaching, warning, further investigation, suspension, or dismissal. When dismissal is under consideration, cross-check your process against the section 387 factors again to make sure you’ve taken reasonable steps to act fairly.

If you need to proceed with termination during probation, ensure the decision still follows a procedurally fair pathway consistent with your contract and policies, and issue the right documentation from your termination suite.

Key Takeaways

• A Fair Work support person is there to support the employee in meetings that may lead to disciplinary action - they are not an advocate.
• Don’t unreasonably refuse a support person. Offering one helps demonstrate procedural fairness and reduces unfair dismissal risks.
• Run a clear process: written invite, disclose concerns, allow time to respond, set meeting ground rules, and document everything carefully.
• Use consistent documents and policies - a solid Workplace Policy, Employment Contract, and structured Show Cause Letter process - to keep things fair and efficient.
• For serious allegations, consider lawful options like standing down or suspension pending investigation while you gather facts.
• Before dismissal, sanity-check your process against the section 387 factors the Commission uses to assess fairness.

If you’d like a consultation on handling support persons, investigations or disciplinary meetings in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.