Key Points:

Employers who wish to control who attends their meetings about an employee's performance need to understand what they can, and can't, exclude.

When an employee is being performance-managed or investigated, one issue that can arise is the proper role of the support person. But what is a support person? Is it the same as an advocate?

This is not mere semantics. Under section 387(d) of the Fair Work Act, one factor that is taken into account in assessing whether a dismissal was harsh, unjust or unreasonable is whether there was an unreasonable refusal to permit the employee to be accompanied by a "support person" at any discussions relating to the dismissal. Understanding the role of a support person, and how far an employer can go to control what they can do, is an important element of successfully and lawfully managing employees.

A recent decision of the Full Bench of the Fair Work Commission, Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613, appears to be the first to discuss the substantive role of the support person, and suggests that employees do not have an inherent right to be represented by an "advocate" at a meeting to discuss allegations.

A right to a support person, not an advocate

Ms de Laps was asked to attend a meeting by her employer, the Victorian Association for the Teaching of English Inc (VATE), to discuss her work performance. She was given two days' notice, and told:

"You may bring a support person if you wish. 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."

She protested against the VATE's failure to provide particulars of the allegations, refusal to permit an advocate and the short time-frame. The VATE sent her another letter detailing the allegations, and gave her three days to respond. Her response was a resignation, followed by unfair dismissal proceedings.

The case turned on one issue: was Ms de Laps forced to resign by the VATE's conduct, including by refusing her an advocate?

The Full Bench of the Fair Work Commission said she had not, and crucially that there is no inherent right for employees to elect to be accompanied by an advocate:

"Under the FW Act, 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 meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness."

Is a support person just for emotional support?

The demarcation between "support person" and "advocate" has not been clearly drawn yet. As employers do not have to tell employees of their right to a support a person, and section 387(d) only becomes an issue when an employee's request for a support person is unreasonably refused, the question of what, exactly, a support person does has rarely been an issue. This might be more by chance than anything else. Certainly employers who wish to control who attends their meetings about an employee's performance need to understand what they can, and can't, exclude.

The Full Bench's comment suggests that there is a conceptual difference between "advocate" and "support person"; the primary distinction would seem to be that the former can speak on behalf of the employee, but the latter cannot.

Does this mean a support person is just there for emotional support?

There is some suggestion in another decision that they are not confined to offering emotional support (as important as that can often be), and that there might normally be some element of preparation that a support person would undertake (Roberts v McCreag Pty Ltd [2013] FWC 5505).

Moreover, the language of section 387(d), "to assist at any discussions", suggests that a support person is not merely a passive bystander. For instance, as a general observation, they may be able to help an employee formulate what to say, provide advice and take notes of the matters being discussed. Speaking on behalf of the employee will, however, place them beyond the scope of support person and into the role of advocate.

Given the evolving significance of support persons and the uncertainty surrounding their role, we have certainly not seen the last of this issue.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.