Support Persons in New Zealand Disciplinary Meetings
In New Zealand employment law, a disciplinary meeting is a formal meeting held by an employer to discuss allegations of misconduct or poor performance with an employee, which could potentially lead to disciplinary action, including dismissal. Employees attending such meetings often wish to have a support person present. A support person is an individual who accompanies an employee to a meeting to provide moral support and assistance.
The Legal Basis for a Support Person
While the Employment Relations Act 2000 (ERA 2000) does not contain a specific section explicitly stating a 'right' to a support person in disciplinary meetings, the expectation for an employer to offer and allow a support person stems from fundamental principles of New Zealand employment law:
The Duty of Good Faith
Both employers and employees are required to deal with each other in good faith. Good faith means acting honestly, openly, and without misleading or deceiving the other party. It also includes being responsive and communicative [Source: Employment Relations Act 2000, s 4(1A)]. The duty of good faith applies to all aspects of the employment relationship, including disciplinary processes. Courts and the Employment Relations Authority have consistently interpreted this duty as requiring employers to conduct disciplinary processes fairly, which includes allowing an employee to have a support person present.
Fair and Reasonable Process
When assessing whether a dismissal or other disciplinary action was justified, the Employment Relations Authority or Employment Court must determine "whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred" [Source: Employment Relations Act 2000, s 103A(2)]. Denying an employee the opportunity to have a support person present, without a justifiable reason, can lead to a finding that the employer did not act as a fair and reasonable employer, rendering the process procedurally unfair.
The Role of a Support Person
A support person's role is primarily to provide emotional and moral support to the employee during the disciplinary meeting. They may also:
- Take notes during the meeting.
- Help the employee to clarify points being discussed.
- Provide comfort to the employee.
- Assist the employee in understanding the allegations or process.
It is important to note that a support person is generally not expected to speak on behalf of the employee, answer questions directed at the employee, or act as a legal representative. Their presence is to assist the employee, not to participate in the substantive discussion or argue the employee's case. If an employee requires legal representation, that is a separate discussion and often involves different expectations regarding participation.
Employer's Obligations
In line with their duty of good faith and the requirement for a fair process, employers typically have the following obligations regarding support persons:
- To inform the employee: Employers should inform the employee that they are entitled to have a support person present at a disciplinary meeting [Source: Employment Relations Act 2000, s 4].
- To allow reasonable time: Employers must allow the employee a reasonable amount of time to arrange for a support person to attend [Source: Employment Relations Act 2000, s 4].
- To allow a reasonable choice: The employer should permit the employee to choose any support person they wish, provided the choice is reasonable and their presence does not unduly disrupt the meeting. This could be a friend, family member, colleague, or union representative [Source: Employment Relations Act 2000, s 4].
- To act reasonably: If the employer believes the chosen support person is inappropriate or disruptive, they must act reasonably in addressing the issue and explore alternative solutions in good faith [Source: Employment Relations Act 2000, s 4].
Employee's Considerations
When exercising their right to a support person, an employee should:
- Inform their employer as soon as possible if they intend to bring a support person.
- Ensure their chosen support person understands their role is primarily supportive and not to actively represent or argue on the employee's behalf.
Consequences of Denying a Support Person
If an employer denies an employee's request for a support person without a valid reason, it can significantly undermine the fairness of the disciplinary process. This could form the basis of a personal grievance claim. A personal grievance is a complaint by an employee that they have been disadvantaged by an unjustifiable action by their employer [Source: Employment Relations Act 2000, s 103(1)(a)]. If the Employment Relations Authority or Employment Court finds that the process was unfair due to the denial of a support person, any disciplinary action taken by the employer, including dismissal, may be deemed unjustified, potentially leading to remedies such as reinstatement, lost wages, or compensation [Source: Employment Relations Act 2000, s 123].
When to Seek Independent Legal Advice
If an employee believes their employer has acted unfairly in a disciplinary process, including by denying them a support person, or if an employer requires clarity on their obligations, it is advisable to seek independent legal advice. The Ministry of Business, Innovation and Employment (MBIE) provides mediation services, and guidance can be sought from official bodies such as Employment New Zealand and Community Law Centres for free advice and support. Community Law Centres