The right to union representation at Counsellings
Counselling/Discussion Records/Personal Improvement Plan
Are you experiencing difficulties with the tasks your manager has set for you?
Do you feel you have not received adequate training to complete these tasks?
Don’t wait until you are called into the office for a ‘counselling’ on your work performance. Be pro-active and ask for help or more training from your supervisor or department manager. If your requests are ignored, speak to your Store Manager. It is always wise to record in your diary the date and to whom you spoke to regarding this matter.
Your employer is entitled to interview and counsel you if they feel it is warranted. However this process is to assist you in improving your performance, not to punish you or be used as a threat to make you yield to unreasonable requests.
Examples of unreasonable requests could be:
- “If you don’t come to work on your day off, you will be counselled”;
- “I don’t care if you are sick, you have to come to work or you will be counselled”.
The two examples above are not fair-dinkum counsellings. They are clear breaches of any Enterprise Agreement or Award and are typical examples of intimidation and bullying.
Remember these points if you find yourself in this position:
It is often the case that members are called into the manager’s office and are not aware that the purpose of the meeting is to have a counselling session or worse. If this happens to you, you have the right to seek an adjournment to the meeting so that you can prepare for such meeting.
- You are entitled to have your SDA Shop Steward/Delegate or another person of your choice as a witness to a counselling;
- You have the right to remain silent and cannot be forced to answer questions;
- You cannot be forced to enter the company office or be detained against your will unless you are under arrest;
- You cannot be forced to sign a document;
- You are entitled to a copy of any document that you have signed;
- If you are refused a witness, contact the SDA office immediately;
- Most companies have anti-bullying policies. Pursue this issue through the grievance or disputes procedure and enlist the assistance of your workplace Shop Steward or Delegate.
Counsellings/disciplinary action/Right to union representation
It is often the case that members will rely not only on the advice of the SDA but its ability to provide representation at meetings. Most requests for representation relate to disputes or when a member faces a disciplinary action. At these times, some employers might inform the member that their representative is acting in a support role only and is to be a ‘silent witness’ without any ability to speak on the member’s behalf.
The SDA has always maintained and enforced (when needed) its right to ‘represent’ so when a Steward/Delegate or Union Official acts in the role they maintain the ability to talk, clarify, question and argue on the member’s behalf. The Federal Court in Vong v Sika Australia Pty Ltd has approved the position taken by the SDA.
In this case, the employee was terminated for refusing to attend a disciplinary process where the Human Resources manager had refused the Union Organiser to represent the employee. The HR Manager knew the employee had concerns with the process and was not fully capable of understanding it but went as far as to insist that the Organiser sign a form stating that he would be a ‘silent witness’ without any ability to talk for the member.
The Federal Court found that the actions of the HR manager constituted an unlawful reason to terminate as it prevented the employee to have appropriate and requested union representation and had, in effect, breached the legislation that applied at the time by terminating an employee as a direct result of them having a lawful union association.
The decision firmly supports the notion that the employee has an entitlement to have a person/union of their choice to act as a ‘representative’ in these matters and that the person has the right to refuse to have a meeting if this entitlement is not allowed. The bottom line is that an employee cannot be forced to relinquish their right to the assistance or representation of the union. There may be some occasions where your representative is a witness (e.g., being in attendance during an investigation process the outcome of which may result in disciplinary action – in this case, during the investigation the support person observes and would not necessarily act as a representative).
If you find yourself in this position it is important to note what transpires – keep notes of conversations and the reasons the employer provides if refusing representation. Remember you do have the right to refuse to be involved in the meeting if representation is unreasonably refused.
Providing SDA representation in counsellings and disciplinary meetings is one of the fundamental reasons why the SDA exists. It is always good to know that the SDA supports our members in their time of need.