Workplace Management Curve Ball No. 3: The employee will only meet with you if they bring their spouse with them
An employee may throw you a curve ball by telling you that they will not meet with you unless they are able to bring their spouse with them as a support person. While the employee is able to request that they bring a support person along to a disciplinary meeting with management, workplace issues may intensify and become very messy if you allow an employee’s spouse to get involved.
There are plenty of real life examples that illustrate how workplace conflicts can become exaggerated and emotionally charged when an employee’s spouse becomes involved:
In Arthur Trebelas v The Trustee For C & S Nastas Family Trust t/as Beta Group [2011] FWA 4385, a dispute between the employee and employer relating to the employee’s pay and entitlements escalated when the employee’s wife contacted the employer. Her verbal abuse of the employer over the phone ultimately led to the employer deciding to terminate Mr Trebelas’s employment. Although it was found that the employer’s dismissal of Mr Trebelas on the basis of his wife’s phone call was unfair, this case does highlight the way in which issues can escalate as a result of a spouse’s involvement in workplace affairs.
In Nathalie Mocsari v Expanse Pty Ltd [2010] FWA 2138, following a meeting between the employee, Nathalie Moscari, and her employer where her workplace performance was being discussed, the employee’s husband approached her employer and a verbal altercation ensued. Ultimately, the police were called and arrested the employee’s husband. The employer also took out an Apprehended Violence Order against the employee’s husband. This example underlines the emotional difficulty that spouses are likely to experience when they become involved in their significant other’s workplace issues and the significant consequences they may face when matters get out of hand.
What you should do when faced with this curve ball:
For Informal Counselling Sessions
If the meeting is merely a counselling session, the informality of the meeting should be explained to the employee.
Highlight that a support person is not necessary as the meeting is simply to identify ways to improve the employee’s performance in the workplace and we as management are trying to support you reach the required standards of conduct.
Point out that the nature of the meeting will mean that it will be more productive on a one-on-one basis.
For Formal Disciplinary Procedure Meetings:
If the meeting is part of a formal disciplinary procedure, it must be remembered that s 387(d) of Fair Work Act requires the Fair Work Commission to take into account ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’ when determining whether a dismissal was harsh, unjust or unreasonable. Therefore, as an employer, you do have the discretion to determine whether you will allow in a particular case the employee to bring a support person and who that may be.
However, it should also be emphasised that bringing a spouse as a support person may not be appropriate because it is likely to be emotionally difficult for the spouse. It is also worth pointing out instances where getting a spouse involved in workplace issues have in fact intensified the problems for the employee and also for the spouse.
The employer could also suggest that a union representative or lawyer may be more appropriate than a spouse to act as a support person as they are more experienced with dealing with workplace issues and are better equipped to provide professional support and advice during the disciplinary process.
Having said this, it should be noted that it is unlikely that an employer will have a right to stop the employee from bringing a spouse as the support person to a formal disciplinary meeting without a valid reason. In Sharp v Arwon’s Little Angels Child Care Centre (2011) FWA 2849 at [28], Commissioner Connor found that Mrs Sharp (a child care teacher) was ‘entitled to rely on a support person of her choosing, including her husband’. This suggests that, when assessing whether a dismissal is unfair, the Fair Work Commission will not accept a bare refusal for an employee to bring a spouse as a support person to a formal disciplinary meeting without the employer providing a reasonable justification for doing so.
Author: Glen Bartlett