The de Laps case suggests that a support person for the purposes of section 387(d) of the Fair Work Act does not have an advocacy role.
When employees are suspected or accused of having engaged in improper or wrongful conduct there is usually a process of investigation where the employee is given notice of certain allegations, given time to prepare a response and then invited to attend a meeting to discuss the allegations. One issue that can arise in such a process is the proper role of the support person.
A recent decision of the Full Bench of the Fair Work Commission, Victorian Association for the Teaching of English Inc v Debra de Laps  FWCFB 613, illustrates some of the issues that employers should be aware of when undertaking a process of investigation. In particular, the Full Bench decision suggests that employees do not have an inherent right to be represented by an "advocate" at a meeting to discuss allegations.
This is an important finding that may carry implications for the unfair dismissal regime: under section 387(d) one factor that is taken into account in assessing whether a dismissal was harsh, unjust or unreasonable is whether there was an unreasonable refusal to permit the employee to be accompanied by a "support person".
Ms de Laps was employed by the Victorian Association for the Teaching of English Inc (VATE) in 2003 as an Education Officer and then as an Executive Officer from 2004.
On 14 December 2012, Ms de Laps gave written notice of the termination of her employment and, on 15 February 2013, her employment formally came to an end.
The case turned on one issue: whether Ms de Laps was forced to resign from her position by a course of conduct engaged in by VATE, ie., was it a "constructive dismissal"? Under the Fair Work Act 2009 (Cth) (FW Act), unfair dismissal access is only available where the employee has been terminated at the initiative of the employer.
In July 2012, Ms de Laps had gone on WorkCover approved leave to recover from a stress-related injury that was caused by alleged bullying and harassment by Mr Terry Hays, the Chairperson for the Conference Committee for the 2011 VATE national conference.
Following her return to work in August 2012, Ms de Laps alleged that the VATE Council (being the elected body responsible for all legal, fiduciary, policy-making and strategic planning aspects of the VATE) had undergone a change in membership composition and had acted in a manner constituting a denial of procedural fairness, which left her no choice but to resign.
Of vital significance in the case were the circumstances leading to Ms de Laps' resignation. On 10 November 2012, Ms de Laps was sent a letter requesting her attendance at a meeting "to discuss [Ms de Lap's] performance and conduct during [her] employment". The letter stated,
"You may bring a support person if you wish. 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."
The letter provided two days' notice for the meeting.
Ms de Laps replied with a letter which protested against the failure to provide particulars of the allegations, the refusal to permit an advocate and the short time-frame.
On 13 November 2012, the VATE sent another letter which detailed 22 allegations against Ms de Laps and provided three days to respond.
Ms de Laps response to this letter was to give notice of her resignation. She then brought unfair dismissal proceedings against VATE.
Before the merits of Ms de Laps' unfair dismissal application could be considered, the Commission heard a jurisdictional objection on the basis that Ms de Laps did not have unfair dismissal access because she voluntarily resigned. The relevant test looks at whether the employer acted in a manner which was intended to bring the employment to an end or in a manner that would have that probable result.
At first instance, Commissioner Ryan found that Ms de Laps was forced to resign by a denial of procedural fairness, as evidenced by several key factors. These factors were the short time-frame in which Ms de Laps was asked to respond to 22 allegations, that there was no disclosure of material that VATE was relying upon and the refusal to permit an advocate (as opposed to the support person she was permitted). It was said that these factors "strongly point to a process that was not intended to be fair".
On appeal, the Full Bench found that Ms de Laps was not forced to resign. The Full Bench ruled that three days was an appropriate time to respond to the 13 November 2012 letter and that the failure to provide material did not amount to a denial of procedural fairness.
Crucially, the Full Bench said that there is no inherent right for employees to elect to be accompanied by an advocate:
"Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission 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”. Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness."
This is an interesting finding which may carry implications for unfair dismissal cases.
Under section 387(d) the criteria for considering whether a dismissal is harsh, unjust or unreasonable include:
"any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal"
Although the Full Bench were not ruling upon section 387(d), the Full Bench's comment (extracted above) suggests that there is a conceptual difference between "advocate" and "support person"; the primary distinction would seem to be that the former can speak on behalf of the employee, but the latter cannot.
It appears this decision is the first to discuss the substantive role of the support person. Due to the terms of section 387(d) (ie. employers are not obliged to notify employees of their right to have a support a person; the provision is only engaged when an employee requests a support person and that request is unreasonably refused) in many decisions, the issue of support person has been a neutral consideration.
However, in one case, Roberts v McCreag Pty Ltd  FWC 5505, the applicant was called to a meeting but was not notified that the meeting would be for the purpose of discussing his future employment. At the meeting, the applicant was presented with allegations and ultimately dismissed there and then. Although there was no express refusal by the employer for the applicant to have a support person present,
"the meeting on 1 March 2013 was held without any notice of the purpose of the meeting. In these circumstances I am prepared to find that there was, by the actions of Mr Choi, an unreasonable refusal to allow the Applicant to have a support person present."
The requirement of notice is consistent with a view that the role of a support person is not passive and that there might normally be some element of preparation that a support person would undertake.
Moreover, the language of section 387(d), "to assist at any discussions", suggests that a support person is not merely a passive bystander.
However, the better view appears to be that a support person's role does not extend to speaking on behalf of the employee. That places them beyond the scope of support person and into the role of advocate.
The Full Bench's decision in Victorian Association for the Teaching of English Inc v Debra de Laps  FWC 4163 is an interesting comment on the role of the support person. The decision suggests that the Commission would be inclined to take the view that a support person for the purposes of section 387(d) of the FW Act does not have an advocacy role.
The demarcation between "support person" and "advocate" has not been clearly drawn. While a support person may not be able to speak directly on behalf of an employee, they are also not confined to offering emotional support (as important as that can often be). For instance, as a general observation, they may be able to help an employee formulate what to say, provide advice and take notes of the matters being discussed.
Given the evolving significance of support persons and the uncertainty surrounding their role, we have certainly not seen the last of this issue.
This article was first published in the Law Society Journal, April 2014