What you need to know about the new IR reform bill, What’s a “complaint”? 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 to attend would mean rescheduling the meeting at the last minute. The same thing occurred at the next two meetings. The ACAS Code of Practice describes the role of the union representative being to: The Trade Union officials are normally very balanced and objective, and providing you follow our guidance in relation the meeting there is nothing to be concerned about. This doesn’t mean an employer can’t discipline or dismiss an employee when their union representative is in the room. $1 million Federal Court appeal holds lessons for HR, Talk their talk: becoming more convincing through ‘linguistic mirroring’, Manager/subordinate romances: what HR needs to know, 2 reasons why there aren’t more women in tech, Video: Recruiting top talent, and how to recruit women. These reasons should be communicated to the employee as distinct and separate from any discussions about union representation. An argument ensued, and the HR manager told the union official to leave the premises and terminated the meeting. In addition, the representative may not use their rights to address the hearing and to confer with the worker in a way that prevents the employer explaining its case or any other person at the hearing making their contribution. If Fair Work only provides for the right of an employee to have access to a support person (and the nature of that role) how can a Union official have the ability to choose what role they play at the start of the meeting? These are known as Weingarten rights (from a 1975 Supreme Court case). the seriousness of the disciplinary issue; the employee’s disciplinary record, general work record, work experience, position and length of service; getting a medical opinion on whether the employee is fit to attend the meeting (with the employee’s permission) 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. However, from 1 July 2019, […], Employment & Workplace Relations For this reason, we strongly recommend that employers record clear written reasons for any decision to take adverse action against an employee. Where do we stand on this? Vong argued that he had been unfairly dismissed because he was a union member. 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). A Rep is a union member who represents and gives advice to colleagues when they have problems at work (1) The role is wide ranging and includes representing workers with problems and accompanying them to grievance or disciplinary hearings. 11 October 2019. This is best illustrated by the case of Vong v Sika. Strictly speaking, there is no legal obligation on the employer to allow the doctor to be accompanied at a disciplinary hearing by someone who does not meet the statutory definition. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. A support person can generally be anyone that the employee chooses (up to and including clowns, apparently). If the employee brings a union official to the meeting, it’s important to establish whether their intended role is as a support person or as the employee’s union representative. | You can ask your employer if someone else can accompany you, but they don't have to agree to this. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. You can disable cookies at the browser level, however this can limit your experience with our website. They are normally held as part of an investigation into your performance or conduct at work. 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. 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. Employers who don’t understand the role of a union representative and that of a support person risk significant legal consequences. This is because the range of activities in which a trade union official can participate on behalf of the union is much wider than for an ordinary member. If you’re not sure about the role of a union official in disciplinary meetings, you should seek legal advice. Unions are involved in far more than organizing campaigns to convince employees to join their ranks, and they do more than negotiate labor union … The presence of union officials in disciplinary meetings can feel like a legal minefield for employers. I would be happy to provide you with a copy. Keep in mind that any enterprise agreements or modern awards covering your employees may impose additional obligations relating to union representation. Disciplinary procedures may involve something as simple as an informal chat, and escalate to involve letters, meetings and appeals. In the workplace a trade union representativeu0007u0007 (2)bb is an employee who will represent and defend the rights of workers. However, employers should be prepared to be flexible. The employer was ordered to reinstate Vong, compensate Vong for lost wages, re-credit his leave entitlements, and pay a penalty to the union. The union official refused to sign, and stated that he was there to act as Vong’s union representative. You should clarify this before the meeting begins. This could be a trusted colleague, friend, family member, union representative or lawyer. A disciplinary meeting is a confronting experience for any employee and the presence of a support person may help the employee feel more relaxed. This case is a pertinent reminder of the consequences of misjudging the role of a union official in a disciplinary meeting. You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. Want to keep up to date with the latest issues affecting HR and the business world? You’ve asked your employee to attend a disciplinary meeting, and they show up with a union official. Their role is not to speak on behalf of, or advocate for the employee. At the third meeting, the HR manager left the room and returned with a notice of dismissal. The advice I have received in the past both from Fair Work and from 2 different law firms, and the practice followed by the usually very militant unions that I’ve dealt with, was that even as a delegate, their role is still as an observer to ensure fairness and equity of the process, to ensure clarity of the issue and that all parties are clear on the intended outcomes of the meeting and next steps in the process, and to challenge the employer representative only when they believe there is questionable evidence, etc in regards to the issue,… Read more ». [1]Please note that it is different at the pre-disciplinary meeting (aka Loudermill hearing). Vong argued that he had been unfairly dismissed because he was a union member. The news site of the Australian HR Institute. ). The meeting did not proceed as the employee did not want to attend without the union involved and the employer would not allow it. The employer may be required to furnish grounds to an employee prior to imposing a disciplinary measure. representative to physically attend the meeting. [1] When the employee Vong was called into a disciplinary meeting, he brought a union official with him. Health and safety representative– has statutory rights to cover many aspects of health, safety and welfare in the workplace and attends health and safety committee meetings. Their role is not to speak on behalf of, or advocate for, the employee. What is the companion's role at a disciplinary or grievance hearing? 15 Sep 2019. If you have a trade union representative, you could also ask them to help follow it up. What should you do next? http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2010/1021.html, Changes to long service leave in Victoria for employers in community, cleaning and security industries, District Court chips away at discretion for clinical judgement. You should also ask the employee if they’d like to nominate a support person to attend their meeting with at least 24 hours’ notice. When the employee Vong was called into a disciplinary meeting, he brought a union official with him. Know your role as a Steward and/or Union representative. Representatives are entitled to raise any concerns with management on behalf of union members. The Role of the Union Representative. Fair Work Act of 2009 Thinking 2. 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 … What should you do next? They will help you prepare a Written Statement, and present your case at your Formal Meeting. It is also worth bearing in mind that there is a duty on employers to make reasonable adjustments for disabled employees in certain circumstances, which could include allowing a disabled employee to be accompanied at meetings other than disciplinary or grievance hearings, or allowing a companion other than a colleague or trade union representative (see below). Employers who confuse the role of a union representative with that of a support person risk significant legal consequences. 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. Anyone that the employee did not want to attend a disciplinary meeting, he brought a union member,. Transfer of undertakings employee did not proceed as the employee as distinct and separate from. | 15 Sep 2019 written reasons for any decision to take adverse against... 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