When commencing a performance management process, employers must flag an employee's entitlement to the presence of a support person in those discussions. However, a recent Fair Work Commission decision has found that right does not extend to having an advocate present.

A full bench of the Fair Work Commission has found in Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613, that denying an employee the presence of an advocate in discussions that may lead to the termination of their employment does not constitute procedural unfairness, and has overturned a Fair Work Commission ruling in part for this reason.

Facts

Ms de Laps had been employed by the Victorian Association for the Teaching of English Inc (VATE) since 2003, and from 2004 held the position of Executive Officer. 

In early December 2012, VATE’s president wrote to Ms de Laps requesting that she attend a meeting to discuss performance and conduct issues relating to her. The proposed meeting was to take place two working days later. In the letter, the president noted that Ms de Laps was welcome to bring a support person to the meeting, but that the role of the support person was to provide ‘emotional support… not to act as your advocate’.

The following day Ms de Laps responded to this letter notifying the president that she would not be able to attend the meeting due to prior commitments.

The president replied noting that the meeting was to be held within Ms de Laps' ordinary work hours, that VATE had provided her with sufficient notice of the meeting and that a refusal to attend the meeting may be considered a failure to follow lawful and reasonable direction. The president directed Ms de Laps to attend the meeting.

Ms de Laps replied to the president requesting, among other things, that VATE provide her with notice of the allegations against her prior to the meeting, and that any review of her performance be undertaken by an independent consultant.

The president responded informing Ms de Laps that the purpose of the proposed meeting was to outline the performance and conduct issues and VATE intended to seek Ms de Laps responses at a later date. In accordance with Ms de Laps' request, the president outlined the allegations against Ms de Laps.

The following day, Ms de Laps tendered her resignation, claiming that VATE’s investigation was a sham and the outcome of the investigation was predetermined.

Ms de Laps then brought an application for unfair dismissal in the Fair Work Commission. VATE objected to the application on the basis that the Commission did not have jurisdiction to deal with the application as Ms de Laps' employment had not been terminated by VATE.

Decision at first instance

At first instance, Commissioner Ryan found that the approach adopted by VATE in its communications with Ms de Laps was not designed to provide Ms de Laps with procedural fairness and that while Ms de Laps had resigned, VATE’s conduct forced her to do so. VATE appealed to a full bench of the Commission.

Full bench decision

The full bench rejected Commissioner Ryan's finding, holding that:

  • VATE’s refusal to allow an advocate to attend the proposed meeting to assist Ms de Laps did not constitute procedural unfairness as this was not a requirement in the Fair Work Act 2009 or any other instrument 
  • the time between when Ms de Laps was invited to attend a meeting to discuss her conduct and performance, and the proposed meeting date (two working days) was not so tight as to constitute procedural unfairness
  • VATE’s failure to disclose, in its invitation letter, the allegations against Ms de Laps and the material VATE had in support of these allegations was not procedurally unfair, when the letter made clear the purpose of the meeting was to outline these, and seek a response by a later date.

The full bench found that VATE’s conduct was not such that Ms de Laps had no other option but to resign, nor was Ms de Laps' resignation a probable result of VATE’s conduct. Critical to the full bench’s decision was Ms de Laps’ own admission that she believed that there were two possible outcomes from the meeting: the termination of her employment or the commencement of a performance management plan.

Lessons for employers

When conducting investigations which may result in the termination of an employee’s employment, unless a contract, industrial instrument or policy states otherwise, remember:

  • there is no obligation to allow an employee to bring an advocate, as opposed to a support person, to a disciplinary meeting
  • so long as the employee is not required to respond immediately to performance or conduct allegations, in most circumstances it will not be necessary to outline those allegations before meeting with the employee
  • it is not necessary to provide the employee with an extensive amount of notice for a meeting to discuss performance or conduct issues in circumstances where it is clear that details of the employer's concerns will be provided at the meeting, and the employee will then be given time to respond.