One of the matters which the Fair Work Commission has to consider in deciding whether a dismissal has been unfair is any unreasonable refusal by the employer to allow the person to have a support person present to assist any discussions relating to dismissal (section 387(d) Fair Work Act).
But if a person facing a serious disciplinary meeting has a support person with them, what is that person entitled to do? Are they entitled to act as an advocate or representative?
The traditional understanding has been that a “support” person is there to do just that - ie provide support to the employee - and not to be a spokesperson or advocate for the employee. This is generally seen as a corollary of the proposition that the employer is entitled to communicate directly with the employee, and have the employee respond in person, about workplace disciplinary matters, rather than through a representative.
In a recent case, Victorian Association for Teaching of English Inc vs De Laps, the Full Bench of the Fair Work Commission came to conclusions consistent with this traditional understanding and confirmed that the employee was not entitled to have an advocate attend a disciplinary meeting.
Ms De Laps was an executive employee of VATE of 8 years standing. On 10 December 2012, she was invited to a meeting on 12 December to discuss her performance and conduct. The letter requesting her to attend the meeting said that she could bring a support person if she wished, but said “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”.
Some testy correspondence ensued between the President of VATE and Ms De Laps. Ms De Laps said that the refusal to allow an advocate was one of a number of matters which showed that VATE would not give her a fair hearing, that the process was “simply a sham” to result, and that her dismissal was pre-determined. The date of the meeting was extended to 17 December, and further details were provided of the matters for discussion, but Ms De Laps tendered a written resignation before the meeting could take place.
Ms De Laps then commenced unfair dismissal proceedings, alleging constructive dismissal, ie that VATE’s conduct left her with no alternative but to resign. The Commissioner who heard the case upheld the claim, finding that the employer’s approach did not accord procedural fairness to Ms De Laps, one feature of which was the refusal to allow her to have an advocate. However in an appeal, the Full Bench of the Fair Work Commission noted the requirements of section 387(d) regarding a support person, but held that there was no other obligation under the Fair Work Act to allow an advocate. The appeal was upheld, and the claim dismissed, because the Full Bench decided that Ms De Laps was not forced to resign and had other viable alternatives.
Significance of this decision:
The decision in this case emphasises that the requirements of section 387(d) are limited.
Firstly, an employer is not obliged to raise the matter of the employee bringing a support person: the obligation is only that the employer “not unreasonably refuse” the employee the opportunity to have such a person present. Nevertheless, many employers, when setting up a serious disciplinary meeting, do inform the employee that they have that right, as a matter of good practice if not of legal obligation. It is also generally prudent to be flexible in arranging meeting times to allow the support person to attend.
However, assuming a support person attends, their role is not that of an advocate for the employee but to be there as a support. This might involve their attentive presence, or taking notes, or the support person suggesting to the employee points they should make, or questions they should ask, or information they should request, or suggesting when there should be a break from the meeting, particularly if the employee has become upset. Such a break is an opportunity for the support person to make suggestions for the further conduct of the meeting on the employee’s side. These considerations apply regardless of the identity of the support person, whether he or she is a friend or work colleague, a family member, a lawyer or union representative.
However, if a support person attempts to act as an advocate, the employer is within its rights to request the person to desist, and if the support person’s contribution prevents the meeting proceeding satisfactorily, the employer might consider terminating the meeting and setting it for another day with clear rules for any support person who attends that meeting
This decision tends to confirm that managing the reasonable and orderly conduct of a disciplinary meeting is within the employer’s control.