Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Fair Work Commission clarifies differences between a support person and advocate



Download PDFDownload PDF

Fair Work Commission clarifies differences between a support

person and advocate

Posted 16/05/2014 by Jaan Murphy

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 person has been dismissed, and

• the dismissal was harsh, unjust or unreasonable, and

• the dismissal was not consistent with the Small Business Fair Dismissal Code, and

• the dismissal was not a case of genuine redundancy.

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.