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Maybe don't send in the clowns to your next employment meeting

25 September 2019

A man recently hit global headlines for taking a clown to a redundancy meeting. Joshua Thompson, an Auckland advertising copywriter, brought Joe the Clown along to the meeting as a support person.

The clown made balloon animals for the meeting attendees and mimed crying as the employee was handed the redundancy paperwork.

Normally, employment meetings where an employee is likely to bring a support person are very serious and stressful times. Few employees would turn their mind to hiring a clown in those circumstances. However, Thompson's unusual choice to bring along a support clown sheds a light on whether there are limits to your support person choices.

Legally, an employee is generally entitled to bring a representative or support person of their choice to employment proceedings and disciplinary meetings.

he law does not distinguish between legal representatives, advocates or other support people in this respect.

A key reason for a support person, advocate or representative is to provide guidance and assistance with affecting the outcome of the process.

For instance, where an employee is facing allegations of serious misconduct, a legal representative is usually the best choice because they know the employer's obligations and the employees' rights and will insist on both being met. But they cost money.

An alternative option is to bring a trusted friend along particularly someone who has experience of HR or employment issues.

Typically, employees will bring a family member, partner or close friend. While they may not be able to guide the employee as to the process, a trusted friend or family member can assist the employee with the stress of an employment process and provide moral support throughout.

Therefore, so long as the choice is reasonable in the circumstances, there is no apparent legal basis that would prevent an employee bringing any support person of their choice - a clown, a magician or any other individual they see fit.

However, the practical reality creates a different issue.

Bringing a novel support person could affect the outcome of the meeting you are attending.

Thompson brought Joe the Clown to a redundancy meeting. A redundancy is a no-fault process and often in a redundancy situation there is little prospect of changing the outcome, particularly as in this case where a major account was lost by the employer in question.

In a situation where the employer is seeking the employee's responses, the absence of a support person that can assist with the process, or at least someone the employee can rely on for moral support, could negatively impact on the employee's ability to respond in their best interests.

More pertinently, the choice of support person forms part of the employee's behaviour during the process, which could itself influence the outcome.

An employee's conduct and demeanour during an investigation can result in adverse conclusions against them, either formally or subconsciously.

For instance, where an employee is dishonest during a misconduct investigation, that conduct can result in a further investigation and disciplinary action up to and including dismissal.

This was the case in an Employment Court case involving Auckland Council where a manager engaged a new casual employee without proper authorisation.

During the investigation she was allegedly dishonest. The concerns about dishonesty were raised with her and became part of the investigation resulting in dismissal and the court found that this was an option open to the council.

While bringing a clown to make balloon animals is not as serious as dishonesty, it can indicate that the employee does not take the process seriously, and more importantly, may not be consistent with the employee's duty of good faith which includes an obligation to be active and constructive in the employment relationship, particularly if it is intended to be an act of defiance or disruption or prevent the employee from responding to questions.

Ultimately, when an employee is facing any potential employment process, they should seriously consider taking a support person and who is best in the circumstances given the potential outcomes of the process and the level of support they are likely to require.

Often employees will be relieved to have the support of a friend, family member or representative to help them through a stressful employment process.

Every situation is different, however, and in the case of Thompson, he appeared to be very pleased with his support clown.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

Cullen - The Employment Law Firm and Women's Refuge are partnering to bring your business an understanding of the effects of domestic violence and the new laws assisting victims of domestic violence at work. Contact us to discuss your needs.

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