A Full Bench of the Fair Work Commission has ruled that the practice of employers allowing employees to bring a support person to any discussion that could lead to dismissal does not entitle the support person to act as an advocate on behalf of the employee.

At first instance, Commissioner Ryan held that an employee, who was an executive director, was constructively dismissed because she had no choice but to resign. The employee was invited to a meeting to discuss allegations of misconduct and performance issues. The letter notifying her about the meeting specifically stated that she was entitled to bring a support person, but also noted that the support person should provide emotional support only and not act as an advocate or speak on her behalf. Ultimately, the employee tendered her resignation, stating that the process the employer had implemented was a “sham”, with a predetermined outcome.

The Full Bench held that there is no obligation on employers to allow an employee to have an advocate present, and the term “support person” does not extend to that person acting on the employee’s behalf. Further, the Full Bench said that there was no evidence that the employee was “effectively instructed to resign … No ultimatum designed to achieve her resignation [was] evident.” Rather, the employee had the option of attending the scheduled meeting and responding to the allegations against her. 

Key points for employers: 

  • Whilst there is a clearly established practice to offer an employee a support person, this practice does not extend to enabling that person to act as an advocate for the employee. 
  • As such, employers are entitled to insist that the employee act and speak on his or her own behalf during any investigatory or disciplinary discussions.

A link to the decision can be found here: Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 (19 February 2014)