Support persons and representation
Section 387(d) rarely decides a case on its own. But it trips up employers who think it means more than it does — and advisers who think it means less.
What you’ll be able to do
- State what s.387(d) actually asks, and explain why it isn’t a duty to offer a support person unprompted.
- Tell the difference between limiting what a support person does in a meeting and refusing to let them be there at all.
- Recognise why this factor almost always weighs neutrally in practice — and spot the rarer decisions where it doesn’t.
The legal test
Section 387(d) asks two things, in order: did the employer refuse to allow the person to have a support person present to assist in discussions relating to the dismissal, and if so, was that refusal unreasonable [2026] FWC 75 at [55].
There is no positive obligation on an employer to offer an employee the opportunity to have a support person [2022] FWC 3249 at [201]. The same proposition appears in close to identical wording in [2023] FWC 793 at [101] — this looks like a stock paragraph used across many FWC matters, not a one-off observation, so don’t treat it as novel reasoning when you see it quoted again elsewhere.
The factor only comes into play once a request has been made. Where no discussions about the dismissal took place before the employee was terminated, there is nothing for the employee to have asked for, and so no refusal to assess [2024] FWC 953 at [53].
Support, not advocate
A support person’s role is to support — not to advocate, negotiate, or answer questions on the employee’s behalf. An employer who spells this out to a support person at the start of a meeting is not thereby refusing their presence [2022] FWC 3249 at [63]. The same limitation appears in a show-cause letter in a different matter, telling the employee in advance that his support person could not ask questions or advocate on his behalf [2022] FWC 1439 at [17].
Where a support person goes beyond that role — interrupting, becoming aggressive, or trying to speak for the employee rather than beside them — an employer is on solid ground responding to that conduct. In one matter, a support person “began to interrupt the meeting in an aggressive manner and attempt to speak on behalf of the Applicant” [2022] FWC 3249 at [67].
Restricting participation is not the same as refusing presence
This is the distinction advisers most often get wrong in either direction. An employer that excludes a support person from attending at all, going forward, because that person was disruptive or tried to advocate the employee’s case, is not thereby making an unreasonable refusal under s.387(d) — provided the conduct relied on actually happened [2022] FWC 3249 at [203]-[204].
In that matter, the Commissioner gave two reasons: the exclusion happened before any discussions relating to dismissal took place, and the support person had been disruptive, argumentative and had tried to advocate the applicant’s case at the meetings in question. The result: the factor weighed neutrally [2022] FWC 3249 at [205].
What this is not a licence for: silencing a support person who hasn’t done anything, or treating an unequal level of professional representation — the employer’s lawyer versus the employee’s friend — as itself a s.387(d) problem. The provision tests refusal of presence, not equality of arms, and a submission that conflates the two has been rejected as misconceived [2026] FWC 75 at [55].
When has the Commission actually found an unreasonable refusal?
Rarely, on this research pass — and when it has, the fact pattern tends to be a plain, specific refusal, not a dispute about the support person’s role. In one matter, the employer refused the employee’s request that the dismissal discussion continue in the site office where his union representative was located; the Commission found that repeated refusal unreasonable [2023] FWC 3399 at [41].
In another, the finding rested on thin ground: the employee asserted in her submissions that her request for a support person had been refused, but — unusually — “this factor was not further explored during the conference nor challenged by the Respondent” [2023] FWC 2485 at [45]. Left unanswered, the assertion stuck, and the Commission found the refusal unreasonable [2023] FWC 2485 at [46]. The lesson for a respondent isn’t about the law — it’s about not leaving a factual assertion on the file unanswered.
How much weight does this factor carry?
Be honest with yourself about this before you spend much time on it. Across the decisions reviewed for this module, s.387(d) is treated as a neutral consideration far more often than it moves the outcome either way — including in matters the employer otherwise won [2022] FWC 3249 at [205] and in matters the employer otherwise lost [2022] FWC 1439 at [55]. On this research pass, it only carried independent weight where the refusal itself was clear-cut and specific — not where the complaint was really about how the support person was allowed to participate. Don’t let a client over-invest in this ground; check the process factors in s.387(b) and s.387(c) first.
How this factor fails
An unchallenged assertion is enough
The employee said her request for a support person was refused. The employer never challenged it. [2023] FWC 2485 at [46]
If an applicant alleges a refusal, respond to it in evidence — silence reads as a concession.
A specific, reasonable request, flatly refused
The employee asked for the discussion to continue where his union representative was. The employer said no. [2023] FWC 3399 at [41]
A concrete, logistically simple request for a support person’s presence is hard to refuse safely. Think twice before saying no outright.
Unequal firepower isn’t the test
The employee argued that the employer’s in-house counsel attending created an “imbalance of arms” requiring disclosure. Rejected as misconceived. [2026] FWC 75 at [55]
Don’t run a s.387(d) argument about the quality of representation on each side — it tests refusal of presence, nothing else.
Disruption, not presence, was the problem
The support person was barred going forward after being disruptive and trying to advocate — not merely being present. [2022] FWC 3249 at [203]-[204]
This only holds up if you can describe specific conduct, not a general preference for a quieter room. Write down what happened at the time.
Adviser checklist
- Before any discussion
- If a support person is requested
- If I need to limit participation
- Before relying on this factor
Practice scenario: the payroll show-cause meeting
Fictional scenario. Write your answers, then reveal the model answer.
Priya is a payroll officer at a regional aged-care provider, facing a show-cause meeting over an alleged payroll data breach. She asks to bring her sister, who isn’t a lawyer or paid agent, as a support person. The HR manager agrees, but tells the sister at the door: “You’re here to support Priya, not to speak. If you say anything at all, I’ll ask you to leave.”
Partway through the meeting, the sister says quietly, “Can I just clarify — the date on that email, is that the 3rd or the 13th?” The HR manager stops the meeting, reminds the sister of the rule, and warns that she will be removed if she speaks again. The meeting proceeds without further interruption.
A second meeting is needed to finalise the outcome. Priya says her sister can’t make the date proposed because of a hospital appointment, and asks for one extra day. The HR manager says the matter needs to be finalised on schedule and proceeds without any support person present at all.
- The first meeting is likely fine. A rule that the support person is there to support, not to answer or argue the case, matches the accepted role of a support person — and a single clarifying question about a date isn’t advocacy, so reminding her of the rule (rather than making anything of it) was a reasonable response, not a refusal of presence.
- Not from this alone. A blanket “don’t say anything at all” rule announced at the door is more exposed than a rule tied to actual conduct — if the sister had been removed over a single clarifying question, that would start to look like excluding her for being present, not for misbehaving. The manager’s warning stayed short of that line here, but it’s close enough that advisers should flag it.
- The real problem is the second meeting. Priya made a specific, modest request — one extra day, for a documented reason — and the manager proceeded without any support person rather than accommodating it or offering an alternative. That’s much closer to the pattern the Commission has found unreasonable: a concrete request, simply refused.
Where it could land, depending on what else is in the file:
Decisions cited
Check each paragraph reference against the published decision on the FWC website before relying on it. None of the authorities behind this module’s propositions needed flagging as outside the corpus — each statement traces to a decision read directly from the snapshot. The “no positive obligation” passage recurs in close to identical wording across more than one decision; treat that as a sign it’s standard-form language, not as two independent lines of reasoning.
| Decision | Outcome (confirmed from the text) |
|---|---|
| [2026] FWC 75 Riley v Nuvei Australia Merchant Services | Found not to have been unfairly dismissed; application dismissed. On s.387(d): no evidence of a refusal — Nuvei told Mr Riley he could bring a support person to each meeting and he did — and the submission that an 'imbalance of arms' from in-house counsel attending was itself relevant to s.387(d) was rejected as misconceived. [63] |
| [2024] FWC 953 Nuttall v BM Supplies Unit Trust | Found to have been unfairly dismissed. On s.387(d): no refusal arose because the Applicant never requested a support person — there were no discussions relating to the dismissal before the phone call that terminated him. [72] |
| [2023] FWC 793 Tutolo v Noongar Mia Mia | Found not to have been unfairly dismissed; application dismissed. On s.387(d): the Respondent's show-cause letter told the Applicant she could bring a support person, and there was no evidence of any refusal. [146] |
| [2023] FWC 3399 Vonja v Adcon Resources Victoria | Found to have been unfairly dismissed; compensation ordered. On s.387(d): the Commission found Adcon did unreasonably refuse a support person — it refused Mr Vonja's request that the dismissal discussion continue in the site office where his union representative was located. [65] |
| [2023] FWC 2485 Wang v Perfect Shape Medical Beauty Australia | Found to have been unfairly dismissed; compensation of $4,312 ordered. On s.387(d): the Commission accepted the Applicant's unchallenged and unexplored assertion that her request for a support person was refused, and found that refusal unreasonable. [98] |
| [2022] FWC 3249 Dajanovic v WACO Kwikform | Application dismissed. On s.387(d): excluding Mr Laalaa from PIP meetings as the Applicant's support person (because he was disruptive and tried to advocate the Applicant's case) was not an unreasonable refusal; the Commissioner treated the factor as weighing neutrally overall. [215] |
| [2022] FWC 1439 Kubica v InvoCare Australia | Found not to have been unfairly dismissed; application dismissed. On s.387(d): the Applicant attended the show-cause meeting with his paid agent, so the Commission treated the factor as neutral. An earlier consultation letter (for a different, earlier meeting) had told the Applicant his support person could not ask questions or advocate on his behalf. [64] |