BlandsLaw - A support person is not an advocate
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A support person is not an advocate

Both employees and employers alike seek information around the role of support people in disciplinary or other important workplace meetings.  A recent Fair Work Commission (FWC) decision has provided useful clarification around the role of a ‘support person’.

Facts of the case

In Victorian Association for the Teaching of English Inc v de Laps [2014] FWCFB 613 the employer requested the employee attend a disciplinary meeting and offered that she could bring a support person to the meeting. The letter, however, went on to note that the support person was only an emotional support and was not to speak as her advocate. The employee replied that she could not attend the meeting at the time requested. The employer said this was not reasonable as they had provided 48 hours notice and it was during her usual work hours. The employee subsequently resigned, describing the employer’s process as a ‘sham’ and a breach of procedural fairness.

Case history: no legislative requirement to offer an advocate

The employee’s unfair dismissal claim was successful in the first instance. On appeal, the full bench held that that the employer’s actions were not unreasonable and their conduct did not force the employee’s resignation. 
 
In terms of procedural fairness the full bench said there was no legislative requirement to offer an advocate. The criteria for determining if a dismissal is harsh, unjust or unreasonable include that there is a valid reason for the dismissal and that certain procedures are followed. The procedures  include that there is not ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’  The Full Bench specifically note that there are no other legislative references obliging employers to allow advocates to be present. Therefore the refusal to allow an advocate did not amount to procedural unfairness.
 
The importance of this aspect of the decision is that it provides some much needed clarification to the role of the support person. Procedural fairness requires that employees should be offered the option of a support person. The wording of the legislation potentially leaves open whether this is only invoked if a request is made; but best practice dictates that employees should always be offered this option. This case confirms, however, that a support person is not an advocate and the elucidation of this by the employer was not unreasonable or a breach of procedural fairness.  

Lesson for employers

It is very important that employees are given the option for a support person to attend disciplinary or other important workplace meetings. The types of meetings where you should consider formally offering the option to bring a support person include meetings about potential redundancy, performance management, misconduct and summary dismissal.  It is the choice of the employee whether they in fact bring a support person.
 
In terms of their role, a support person is exactly that - a support. If a support person does attend a meeting with an employee, they are present as an emotional support and not as an advocate or representative of the employee. The employee, if they choose to do so, must speak for themselves to answer questions or provide information. It can be helpful to reiterate the role of the support person at the outset of the meeting and this may prevent problems later on. 
 
Sarah Waterhouse, Solicitor, BlandsLaw
 
Image courtesy of renjith krishnan / FreeDigitalPhotos.net
 

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