There is a general belief that an employee has an absolute right to have a support person or advocate attend disciplinary or termination meetings. Is this correct?
Section 387 of the Fair Work Act 2009 (Cth) (FW Act) provides consideration criteria for when a termination of employment is “harsh”. For a support person the only reference is contained in s387(d):
“any unreasonable refusal by the employer to allow the person to have a support person to assist at any discussion relating to dismissal”
In other words, there is no positive obligation on employers to provide a support person or for a support person to be present at these types of meetings, but only a ‘reactive’ obligation not to refuse their attendance if requested by the employee. There are a few exceptions to this rule and could include:
- a person that is involved in the issues being addressed in the meeting;
- a person who may be disruptive or overtly interventionist to the process, such as a disgruntled ex-employee; and / or
- a person who is higher up in the organisation’s org chart than the manager conducting the meeting.
Each of these exceptions should be considered on a ‘case by case’ basis and is definitely not a ‘one shoe fit all’ approach.
In February 2014, the Full Bench of the Fair Work Commission (FWC) provided a judgement where the role and nature of a support person was further clarified.
In December 2012, Ms De Laps resigned from her Executive Officer position at the Victorian Association for the Teaching of English (VATE) and soon thereafter commenced unfair dismissal proceedings. Ms de Laps was initially successful in this application with the FWC finding that due the VATE’s conduct (including their refusal to allow Ms de Laps to have an “advocate” at the meeting), she had been forced to resign (or constructively dismissed). The VATE appealed this decision that went to the FWC full bench.
In February 2014, the FWC handed down their decision, Victorian Association for the Teaching of English Inc v Debra de Laps  FWCFB 613, and held that there was no obligation to allow the support person to be an ‘advocate’, there are limitations as to the role that support person can perform and cannot advocate on behalf of the employee.
In this matter, the FWC differentiated between a support person and an ‘advocate’ when it stated:
“…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 provisions 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.”
FWC decisions suggest that an advocate is one that speaks on the employees’ behalf, where a support person may assist in formulating what to say, provide advice to the employee and undertake other functions like taking notes and monitoring the employees wellbeing during the process, requesting breaks if required.
There is also another important case that deals with the employers’ obligation to offer a support person and whether this was seen to be harsh, unjust or unreasonable regarding the dismissal of the employee. In BlueScope Steel (AIS) Pty Ltd v Nejat (Paul) Agas  FWCFB 5993, the FWC full bench found that the Bluescope may have had grounds to refuse the request for a support person even if it was made by the employee, and even if the refusal was unreasonable, because the meeting related to the investigation not the dismissal (which occurred at a later meeting).
This decision showed that there is no strict obligation on employers to offer employees a support person during an investigation meeting, and even at a dismissal meeting.
There are no strict rules on who can be a support person, however the most common examples include a union representative/delegate, family member or friend, a work colleague (be mindful that they are not involved in the issue being looked into), or a legal practitioner.
Concerning possible termination of employment, best practice for managers would be to encourage the employee to bring a support person to the disciplinary meeting. In doing so the employer should take the following steps:
- Notify the employee of a need to have a meeting and advise them they have the ability to bring a support person if they wish;
- If the meeting needs to be rescheduled due to the availability of the support person, this should be done, but the employer needs to keep control of the situation and timeliness of any actions taken (ie 24 hour delay might be reasonable, 5 days’ delay is not);
- At the commencement of the meeting, clarify to all in attendance what the support person can and cannot do, including articulating to the support person what their role is;
- Allow the support person to support the employee, whilst ensuring they are not advocating on their behalf;
- If a support person is overtly obstructionist, the employer should consider suspending the meeting and rescheduling to another time; and
- Ensure that the employee is afforded procedural fairness, including not refusing a request for a support person from an employee. This will mitigate claims that the termination was ‘harsh, unjust or unreasonable’.
There are a few strategic considerations that come into play which are dependant on the proposed outcome:
- When the matter at hand is resolved by way of mutual separation, inclusive of a settlement deed. It might be handy to have a support person attend to help facilitate this discussion with the employee.
- When the matter is going to result in termination with an unfair dismissal claim likely, have a support person attend will assist in demonstrating the employer’s reasonableness it the matter proceeds to the FWC.
- When the action, will more than likely only result in a final warning and no dismissal, there is no real need to ‘bend-over backwards’ to accommodate rescheduling or the support person.
What are your views on the above case? Does it have any implications for current processes your business may have that contradict this decision? Will you change your termination meeting processes as a result?