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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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