Warnings before a performance dismissal, and the right to a support person
A performance dismissal usually needs a clear prior warning. A support person is not automatic, but refusing one unreasonably can count against the employer.
Warnings for unsatisfactory performance
Warnings become relevant specifically where an employee is dismissed for unsatisfactory performance, which the Fair Work Commission's guidance ties more to capacity than conduct. A warning has to identify the actual aspect of performance the employer is concerned about; the Commission's own words are that "a mere exhortation to improve is not sufficient," and the warning has to make clear that continued employment is genuinely at risk unless performance improves.
The support person factor
There is no positive obligation on an employer to offer a support person. The Fair Work Commission's guidance is specific about when this factor comes into play at all: only where the employee actually asks for a support person at a discussion relating to the dismissal, and the employer unreasonably refuses. An employer who was never asked, or who agreed to the request, has not fallen foul of this factor.
Two separate factors, easy to run together
It is worth keeping these apart, because they only bite in different situations. The warnings factor only matters where performance, not conduct, is the stated reason for dismissal, and only asks whether a clear enough warning was given before termination. The support person factor only matters where a request for a support person was actually made and refused; it has nothing to do with why the dismissal happened. A dismissal can fail on one of these factors, both, or neither, and each is weighed alongside the other section 387 factors covered on the harsh, unjust or unreasonable guide, not decided on its own.
What this site has not sourced
Neither the warnings page nor the support person page, as extracted this session, gave a specific number of warnings required or a definition of what counts as a genuine offer to bring a support person. Where a case turns on the exact wording of a warning or the exact circumstances of a refusal, the Fair Work Commission's own guidance pages, linked below, are the primary source to read in full.
Where this came from
- Fair Work Commission: Warnings, unsatisfactory performance.
- Fair Work Commission: Unreasonable refusal of a support person.