A recent decision1 of the Full Bench of the Fair Work Commission has clarified the role of a support person in the context of dismissals. An employee can make out a claim for unfair dismissal if they can successfully demonstrate that the dismissal was harsh, unjust or unreasonable. Section 387 of the Fair Work Act 2009 (Cth) (the Act) sets out a number of criteria for determining whether the dismissal is harsh, unjust or unreasonable, including subsection (d) which asks whether there has been any unreasonable refusal by the employer to allow the employee to have a support person present at any discussions relating to dismissal.
This decision, did not directly rule on the issue of support persons, but canvassed the difference between advocates and support persons. In this case, the Victorian Association for the Teaching of English (VATE) had an application bought against them for unfair dismissal by an employee, Debra de Laps. Ms de Laps had worked at VATE as an executive for eight (8) years. On 10 December 2012, she received a letter from her employer that invited her to a meeting on 12 December 2012 to discuss her work performance and conduct. The letter stated that Ms de Laps could bring a support person and confirmed 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.”2
Following this initial letter there were a number of letters exchanged between VATE and Ms de Laps. In a letter dated 12 December 2012, Ms de Laps requested that she be provided with the particulars of the allegations and noted the short time-frame. In this letter, Ms de Laps stated in regards to the limitations provided by VATE on the support person “I query whether natural justice can be adequately afforded to me in the review process which you personally seek to conduct without any opportunity being allowed for advocacy on my behalf”.3
Following Ms de Laps response on 12 December 2012, VATE sent a letter to Ms de Laps which detailed twenty- two (22) allegations and gave her three (3) days to respond. In response to this letter, Ms de Laps resigned from her position at VATE. Ms de Laps bought an application for unfair dismissal against VATE stating that she had been forced to resign and therefore been constructively dismissed by VATE. At first instance, it was found by Commissioner Ryan that Ms de Laps had been forced to resign by the course of conduct which pointed to a process that was not intended to be fair, and accordingly Ms de Laps resignation was a reasonable response.
On appeal, it was found that the refusal of an advocate was not procedurally unfair. This was because in the Act there is only reference to a “support person” and not an “advocate”. Significantly, the Full Bench stated in relation to section 387(d) of the Act “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 fairness.”4
Furthermore, the Full Bench found that Ms de Laps had not been forced to resign and that three (3) days was an appropriate time to respond to the initial letter issued by VATE. The Full Bench found that the course of conduct did not amount to a breach of procedural fairness, nor did it place Ms de Laps in a position where her only option was to resign. Ultimately, Ms de Laps’ application for unfair dismissal was dismissed.
What Does this Mean for Employers?
This decision strongly suggests that a support person for the purpose of section 387(d) of the Act does not have an advocacy role.
It also highlights important factors that employers should consider in the dismissal process:
- employers do not have to offer a support person (although it is best practice to do so); the obligation is that they must not “unreasonably refuse” a request for a support person;
- employers should clearly state the role of the support person to both the support person and employee;
- employers should be aware of obligations regarding support persons that may exist under industrial instruments; and
- a support person is there to assist the employee, this may be emotionally or by taking notes, asking questions, requesting breaks; a support person is not present to advocate or speak on behalf of the employee.