In the Fair Work Commission (FWC), a Full Bench has clarified that the obligation on employers to allow employees to bring a support person with them to any discussion that could lead to dismissal does not extend to allowing the support person to be an advocate.

Facts

The employee was an executive officer of the employer company and had been in that role for eight years when a number of issues arose about potential performance and conduct issues.  The employer wrote to the employee, inviting her to attend a formal meeting two days later to discuss her performance and conduct, without including particulars of the allegations against her.  The letter stated that she may bring a support person if she wished, however the letter continued:

‘Please note that the role of the support person is to provide you with emotional support.  The support person is not to act as your advocate and should not speak on your behalf.’

In subsequent correspondence between the employee and employer, the employee sought, and was provided with, details of the particular allegations that she would be asked to respond to.  The employee then resigned before the scheduled meeting was due to be held. 

The employee brought an unfair dismissal claim against her employer, alleging that she had been constructively dismissed.  The employee claimed, amongst other things, that her employer had denied her procedural fairness by refusing to allow her to have an advocate attend the meeting.

First instance decision

At first instance, the FWC found that, in the circumstances, the employer’s statement to the employee that she could have a support person but that the support person was not to act as an advocate constituted a refusal by the employer to allow the employee to bring an advocate to the meeting.

This finding contributed to the decision at first instance that the employer did not afford procedural fairness to the employee, and that the employee was left with no reasonable choice but to resign (ie the employee was constructively dismissed), and that the dismissal was an unfair dismissal.

Full Bench decision

The Full Bench confirmed the principle that a support person is not an advocate.  The Full Bench noted that, under the Fair Work Act 2009 (Cth) (Act), in the context of unfair dismissal, the FWC is required to take into account ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’

In light of the Act, and in the absence of any other obligation to allow an advocate (eg under an applicable enterprise agreement, contract or policy), the Full Bench determined that the employer’s inherent refusal to allow the employee to have an advocate did not deny the employee procedural fairness.  The Full Bench overturned the first instance decision that the employee was effectively placed in a position where she was forced to resign, and dismissed the employee’s application for an unfair dismissal remedy.  

Lesson for employers

This case acts as a reminder for employers that, under the Act, they cannot unreasonably refuse to allow employees who have access to the unfair dismissal jurisdiction to have a support person present at any discussions relating to possible dismissal.  However, the Act does not extend to allowing the employee to have an advocate.