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Fair Work Commission clarifies differences between a support person and advocate


In February 2014, the Full Bench of the Fair Work Commission (FWC) handed down a judgement in which the nature and role of a ‘support person’ in discussions relating to a dismissal were discussed.

Background

In December 2012, Ms de Laps resigned from her position as the Executive Officer of the Victorian Association for the Teaching of English (VATE) and commenced unfair dismissal proceedings in the FWC. At first instance Ms de Laps was successful, with the FWC Commissioner finding that due to conduct engaged in by the VATE, including the refusal ‘to allow Ms de Laps to have an advocate at [a relevant] meeting’, she had been constructively dismissed (i.e. forced to resign). The Commissioner found that the VATE’s actions also pointed ‘strongly to a process that was not intended to be fair’. VATE appealed the decision.

Unfair Dismissal under the Fair Work Act

The Fair Work Act 2009 (FWA) provides that a person has been unfairly dismissed when:

The refusal to allow Ms de Lap to have an ‘advocate’ attend proposed meetings at which her performance was to be discussed was a significant issue in the case for two interrelated reasons. First, it was alleged that it formed part of a course of conduct designed to force Ms de Laps to resign. Second, it was alleged that the refusal would also make the constructive dismissal harsh, unjust or unreasonable.

The role of a support person under the Fair Work Act

Section 387 of the FWA contains the criteria which the FWC or a court must take into account when determining if a dismissal was harsh, unjust or unreasonable. One of these factors is whether there was ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’ (paragraph 387(d)). In the Explanatory Memorandum to the FWA, it was noted that:

This factor [paragraph 387(d)] will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer     unreasonably refuses.  It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.  It will be one factor FWA must consider when determining whether a dismissal was unfair, having regard to all of the circumstances, including the capacity of the employee to respond to the allegations put to him or her without such a support person being present. (emphasis added).

The FWC appeared to differentiate between an ‘advocate’ and a ‘support person’ when it stated that:

…in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account ‘any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal’. 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 [relevant] meeting can be regarded as constituting an element of procedural unfairness. (emphasis added).

What is the difference between a support person and an advocate?

As paragraph 387(d) of the FWA refers to a support person assisting ‘…any discussions relating to dismissal’, it would appear that they can assist the employee during the discussions, which by implication includes talking to them. Further, it appears reasonable to conclude that when an employee is provided adequate notice of proposed discussions relating to their potential or actual dismissal, a support person may assist the employee’s preparations.

Decisions suggest that a ‘support person’ is not confined to offering emotional support. Instead, whilst a support person cannot speak on an employee’s behalf, they can (at a minimum) help the employee formulate what to say, speak during the discussions to provide advice and also undertake other supportive actions (for example, taking notes).

Hence it would appear that the primary distinction between an ‘advocate’ and a ‘support person’ would seem to be that only an advocate can speak on behalf of the employee.

Why is the case important?

The case provides useful insight into the differences between an advocate and support person and what they can and cannot do. It also clarifies that there is no requirement for employers to inform employees of the ability to have a support person present at discussions relating to dismissal, and that this is a right that an employee must positively seek to enforce.

Finally, the case has already been cited as support for the proposition that the refusal of an employer to allow ‘the attendance of a person as an advocate’ is ‘not to be regarded as constituting an element of procedural unfairness’, and is therefore not  an indication of a harsh, unjust or unreasonable dismissal.