Q&A: Meetings and other internal processes for WA employees

Under Your Contract

Your employer will  be bound by the contract of employment they have with you. If your contract sets out processes or policies in relation to discipline, bullying, sexual harassment, workplace investigations or other processes, your employer should be following these, or they may be breaching the contract.

Separate policies and procedures of your employer may also form a part of your contract. Even where such policies and procedures are not legally incorporated into your contract, your employer’s failure to follow them are likely to indicate an inconsistent and unfair process, which may be relevant to certain legal claims.

If there are internal policies prescribed by your employer, you should ask that they be followed, and ask for an explanation if they are not.

Under laws or legislation

Generally, internal processes are not regulated by law. However, there are certain laws that may become relevant or applicable, depending on the nature and outcome of the process or meeting. For example:

• If meetings and other processes are a part of broader bullying behaviour, then bullying laws may apply.
• If meetings or processes are a risk to health and safety, including mental health, then workplace safety and health laws may apply.
• If the process results in a dismissal, then unfair dismissal laws and other laws relating to dismissal from employment may apply.
• If a meeting or process results in disciplinary action, then general protections laws or protection of employee rights laws may apply.

Under an award or agreement

If there is an industrial award or enterprise agreement that applies to your employment, it may have rules that apply to meetings, complaint mechanisms, dispute resolution procedures or performance management.

You can call Wageline (state system employees) or the Fair Work Ombudsman (national system employees) to see if there is an industrial award or enterprise agreement that applies to your employment.

Your employer has the right to give you lawful and reasonable directions, including asking you to attend a meeting, or make a written submission, or other reasonable participation in a process. Refusing a lawful and reasonable direction can be serious misconduct and your employer may take action against you, or even dismiss you.

A direction to attend a meeting or take other action may not be reasonable in certain circumstances, for example if it is part of an unfair process or is part of a pattern of bullying behaviour.

However, refusing to participate may expose you to disciplinary action or even dismissal. While you may have a legal claim to dispute the disciplinary action or dismissal, this can be time consuming and stressful, and your employer may be able to successfully defend a claim if they can show that their direction was lawful and reasonable.

Requesting a fair process

For this reason, it is preferable to co-operate with your employer, but ask for a fair process.

If you are being required to attend a meeting you might ask for:

• a new date for the meeting, if you feel you have not had enough time to prepare;
• more information on the purpose of the meeting;
• an outline of the broader process (where applicable). For example, if the meeting is part of disciplinary action or a workplace investigation, you could ask for details around what is required of you, what the time frame is and what the potential outcomes will be.
• a support person to be present with you in the meeting (and time to arrange a support person, if necessary)
• anything else that is reasonable and necessary for fairness.

If you are being required to take other action, it may also be appropriate to ask for more information or more time. You should make such requests in writing and use email where possible. If you can’t use email, a text message is another way to keep a written record of your requests. You should emphasise that you are not refusing to participate, but that you are asking for fairness of process while you participate.

If your employer refuses these requests, you might choose to attend the meeting or participate in the process under protest, asking that your employer note your concerns with the fairness of the procedure. You should also re-iterate these concerns in writing prior to the meeting.

You could also refuse to attend the meeting or participate in the process, stating that you are willing to co-operate, but only when a fair process has been agreed to. This is a riskier option and may result in disciplinary action including dismissal.

If you are unfit for work due to illness or injury, you are not required to participate in an internal process (see further below)

Your employer may simply have made a mistake in not stating the purpose of the meeting.

The first step is to ask what the meeting is for. Its best to do this by email or text message so that you have a record of your request.

When the employer refuses to give the reason for the meeting

If your employer is refusing to give you the reason for the meeting, you should state in writing that:

• you are uncomfortable to attend the meeting on the basis that you have not been given information on its purpose and time to prepare;
• your preference is for the meeting to be deferred until you can be given information on the purpose of the meeting and time to prepare;
• if there is a reason why it is not possible to give you information prior to the meeting, this should be explained to you; and
• if you are required to attend the meeting without knowing its purpose, you may not be able to answer questions immediately.

If you are still required to attend the meeting without knowing its purpose and you are blindsided by accusations or other unexpected questions, you can state that you are happy to answer these questions but that you will prepare a written response, or answer the questions at a subsequent meeting, after you have been given time to prepare.

Refusing a meeting

You can also refuse to attend a meeting if you don’t know the reason behind it, on the basis that it’s not a reasonable direction and an unfair process. However, as stated above, this is a riskier option.

It can be considered serious misconduct to refuse to follow a reasonable direction, so if your employer does have a good reason that you are not aware of, you risk committing serious misconduct, leaving you vulnerable to disciplinary action including dismissal.

For example, your employer may be wanting to raise certain issues in a formal and confidential context. The purpose of the meeting may be simply to introduce the issues to you, and then allow you time to prepare a response.

If you do refuse to attend a meeting, you should set out your reasons in writing, noting that you are happy to co-operate by attending a deferred meeting with adequate information and notice.

You may be asked to agree to certain processes or actions, or to sign documents, including warnings or contracts of employment. If you are unsure about making an agreement or signing a document, you should ask for more time to respond. You should make it clear that you are not refusing to make the agreement or sign the document, but that you want a fair process that allows you to make an informed decision.

If you are seeking legal advice on the issue, or intend to seek legal advice, you can also state that you are waiting to receive legal advice and aren’t comfortable agreeing to anything before you have been fully informed as to your legal rights.

If your employer continues to pressure you, for example by threatening dismissal or other disciplinary action, you should ask that your request to delay your response be recorded in writing, and you should also record it in your own notes.

Your employer is allowed to take reasonable management action, including asking you to attend meetings. However, unreasonable behaviour may be part of bullying behaviour, even where it is presented as management activity.

For example, repeated, unnecessary disciplinary meetings or extended disciplinary processes that have the effect of intimidating and harassing an employee may amount to, or be part of a pattern of bullying behaviour.

If you think you are being bullied, there are certain actions you can take to address the bullying. For more information, see our publication: “Q&A: Bullying for WA workers”.

If you believe that these allegations are false it is important that you raise this during the meeting (or in written communications if you have been asked to respond in writing). You should explain what your objections are and raise any inaccuracies in the allegations against you. You should also take notes during the meeting of what the allegations are, and how you have responded. You may also want to follow up with a summary of your response in writing, so it is formally recorded as a communication to your employer.

Employers may say things that are difficult to hear or that you disagree with, but it is important to stay as calm and reasonable as you can, while still arguing your position and pointing out inaccuracies or falsehoods.

In general, you don’t have a right to access performance review documents and you don’t have a broad right of access to your human resources file.

There are some exceptions to this general rule. For example, your employer is required to keep pay records, and you have a right to access them. There are also rules outside of employment laws that regulate access to medical records.

Outside of these exceptions, records that your employer produces are considered the property of the employer, and it’s up to the employer whether or not they give you access.

You should still make any requests for documents in writing and keep a record of your request. Even though your employer may not be obligated to provide them, your employer’s failure to be transparent during a performance management or disciplinary process may be relevant to certain legal claims, including unfair dismissal.

There are no laws governing when an employer must address performance issues or misconduct. Therefore, your employer may bring up issues that have happened a while ago.

However, it may be that the employer is restricted in the action they can take against you. For example, if they are arguing that you breached the contract, but it occurred a long time ago, it may be that they have waived the right to take action against you by leaving it so long.

Further, if your employer dismisses you for issues that have occurred a while ago (without giving you prior notice about these issues), then you may be able to make an unfair dismissal claim on the basis of an unfair procedure. For example, you could argue that you were not given an opportunity to respond and improve.

Every situation is unique, and if you have been accused of breaching a contract or you have been dismissed, you may wish to seek legal advice. Please note that time limits for dismissal-based claims can be as short as 21 days from the date of dismissal.

You can ask for a support person to be present in a meeting. A support person is someone you choose to attend the meeting with you for emotional support. It could be a friend or family member. You can ask for another employee to be your support person, but if that employee has been involved in the issues it may be considered a conflict of interest for them to attend the meeting.

A support person does not argue on your behalf, and generally shouldn’t participate in the conversation with your employer. It is most common for a support person to be present for disciplinary meetings, however there may be other circumstances where a support person is reasonable and appropriate.

Your employer is not legally required to allow a support person for you. However, if you ask for a support person to be present and your employer refuses, this might be evidence of an unfair process, which could be relevant to a legal claim. For example, if you are unreasonably refused a support person for disciplinary meetings that ultimately lead to a dismissal, this could be evidence of an unfair dismissal.

If you are unable to attend work due to illness or injury, you have the right to be absent and cannot be compelled by your employer to perform any work duties, including participating in a meeting or other workplace process.

An illness could be a mental illness, including temporary work induced stress. However, you do need to comply with appropriate laws. If your employer asks you to provide reasonable evidence of your illness, you need to comply with this request, which will generally mean providing a medical certificate.

Your employer also has obligations under workplace safety and health laws. If you believe it is a risk to your mental health to attend a meeting, you can notify your employer in writing. Your employer has a general duty to avoid exposing you to hazards to your health.

Keep in mind that attending meetings is a regular part of employment. If you are stating that you are unfit to attend a meeting, your employer may conclude that you cannot fulfil the “inherent requirements” of your position and use this as a justification to dismiss you. If your employer can argue this successfully, it can be a defence to unfair dismissal and discrimination based claims. For more information see our publications, “Q&A: Dismissal for WA workers” and “Q&A : Workplace discrimination for WA workers”.

For this reason, if you believe you are unfit to attend a meeting, it is helpful to indicate that this is a temporary issue, and that you believe you will be fit to attend in the future, with appropriate support from your employer. It is also helpful to have a medical certificate that evidences you are unfit, and which sets out the circumstances under which you can attend a meeting, or will be able to attend a meeting in future.

Every meeting is different, yet there are some practical tips which are generally applicable and good practice.

Prepare a written statement

Even if you are confident in what you want to say, it’s easy to get overwhelmed in some meetings, so it’s generally a good move to prepare a written statement on your position, or at least some notes that cover the areas you want to address.

Prepare questions

You are likely to have questions about the issues being discussed, or the process that is being followed, or both. Write these down to make sure you don’t miss anything. Even if the meeting doesn’t go as planned, it will assist you to have some certainty over what happens next.

If you have not been given good information on the process prior to the meeting, you should ask that this be clarified at the start of the meeting. If you haven’t been given time to ask any questions by the end of the meeting, you should politely ask that you be given this time.

Take notes

You should keep your own record of the meeting, in case the meeting or its outcomes are disputed at a later point, including as part of a legal claim such as unfair dismissal. Take notes as the meeting progresses and ask for some time if you are struggling to record everything.

You can also ask your employer if you can record the meeting using a recording device such as your phone. However, your employer is not obliged to agree. If you record the meeting without your employer’s consent, you may be breaching the law and it is unlikely that you could use the recording in any legal proceedings.

Remain calm

It is easy to become emotional, particularly if your employer is making accusations that are untrue.

You should prepare yourself for this possibility and try to remain as calm as possible during the meeting. This will help to keep the focus on the issues and the process, rather than interpersonal conflicts.

It will also help you to argue your position more convincingly, and have your questions answered.

Take a break

If you need to If you are feeling overwhelmed, ask for a quick break to compose yourself. If your employer refuses, you may want to state that you are feeling stressed by the process, and you want a quick break to ensure your health and safety.

Your employer has obligations under workplace safety and health laws to prevent hazards to your safety and health, including your mental health.

It’s normal for everyone to get stressed during meetings of this nature, and you should anticipate some level of stress. However, if your stress is causing you to be panicked, physically distressed, or generally overwhelmed, you should insist on a break.

Defer questions and issues that you have not prepared for

Sometimes an employer may ask questions based on new information, new allegations or new evidence that you were not made aware of prior to the meeting.

If this happens, you can raise your concerns by saying that you were not aware that these issues would be raised, and that you would like time to consider them before responding, to ensure a fair process.

If your employer insists you answer, you can state that you are not refusing to answer, but that you need more time. Alternatively, you could choose to answer the questions, but ask that your objections around fairness be noted, and record this in your own notes.

You might be asked to make a submission or written response in writing where you have been accused of misconduct or where you are participating in a bullying or harassment investigation.

• Write clearly and stick to the facts. Avoid personal attacks and personal opinions.
• Use numbered paragraphs.
• Where you are describing events, write them down in the order that they happened and provide dates
• If you agree with allegations or accusations, accept responsibility and focus on how you will improve in the future.
• If you disagree with allegations or accusations, set out the facts which support your version of events.

As outlined above, there are no laws that directly regulate the content and process of internal processes, including meetings. For this reason, it is often unnecessary to speak to a lawyer prior to every workplace meeting that you have. For many meetings and processes, it will be sufficient to follow the practical tips outlined above, and then decide whether or not to seek legal advice based on the outcomes of the process.

In certain circumstances, it is helpful to have legal advice. For example, if there are allegations of criminal conduct, it may be important to seek advice from a criminal lawyer before participating in a workplace meeting.

If you are uncomfortable with certain questions in a meeting or other requests as part of a process, you can ask to respond in writing at a later date, or to discuss again at a subsequent meeting. You can also state that you are not prepared to answer the questions until you have obtained legal advice.

Try not to be rude or obstructive, just emphasise that you are wanting to co-operate but believe you are entitled to a fair process.

Of course, your employer may insist on you participating and you may face disciplinary action for failing to participate. However, if you have a good reason for requesting more time or the opportunity to seek legal advice, your employer’s insistence on you participating immediately may indicate an unfair process. Highlighting the unfairness of the process may then form a part of a legal claim if you are dismissed or punished in another way.

If you are dismissed, or your employer takes other disciplinary action against you, you may wish to seek legal advice. You can contact Circle Green using the details below, to see if you are eligible for our legal advice service.

Please note that limitation periods for dismissal based claims can be as short as 21 days. Forced resignations and significant demotions can be considered dismissals for the purposes of certain legal claims.

For more information see our publications, “Q&A: Dismissal for WA Workers”

Q&A: Dismissal for WA workers

Q&A : Workplace discrimination for WA workers

Q&A: Bullying for WA workers

Q&A: State or national system for WA employees

Fair Work Commission

Western Australian Industrial Relations Commission

Equal Opportunity Commission

Australian Human Rights Commission

Fair Work Ombudsman

Wageline

Fair Work Commission