The Fair Work Commission (FWC) has previously addressed the role of the support person in various decisions. Amber Chandler, Partner, Barker Henley, outlines what this role entails
The principles of procedural fairness tend to demand that an employer allow an employee to have a support person present when carrying out any action that may be viewed as adverse to the employee’s interests. However, it can often occur that the support person invited by the employee, be they the employee’s spouse or local union member, becomes a vocal participant in the meeting, an advocate for the employee and can often frustrate meaningful dialogue between the parties.
The Fair Work Commission (FWC) has previously addressed the role of the support person in various decisions.
A support person is not an advocate
In Victorian Association for the Teaching of English Inc v de Laps  FWCFB 613, an unfair dismissal application, the Full Bench of the FWC held that the obligation for employers to allow an employee to bring a support person to a meeting to discuss termination of employment did not extend to allowing that support person to be an advocate.
In this particular case, allegations had been made against an executive director of the Association in relation to misconduct and poor performance. The employer directed her in writing to attend a meeting to discuss the issues and invited her to bring a support person. The letter, which gave two working days’ notice of the meeting, included the following paragraph:
“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. In the event a support person attends the meeting with you, please provide us with your support person’s details prior to the meeting.”
However, the executive director responded by refusing to attend that meeting due to a prior commitment, and the employer then put her on notice in writing that, should she not attend the meeting, she would be considered to be breaching her obligation to obey reasonable and lawful directions of her employer.
Further communications ensued, with the employer eventually stating the purpose of the meeting was to discuss her performance and conduct, and that she was not expected to provide a response at the meeting, nor would any decisions be made until the outcome of the meeting. The employer also subsequently provided an agenda containing specific claims of misconduct and poor performance for the executive director to consider in advance. The executive director then tendered her resignation, stating she considered the process to be a sham.
At first instance, a Commissioner determined that procedural fairness had not been afforded to the employee. The Commissioner raised three particular aspects as evidence of the employer’s failure in this regard: not disclosing the material up front, giving too short a time frame between notice of the meeting and the proposed meeting date and refusing to allow the employee to have an advocate present. The Commissioner therefore found there had been a constructive dismissal, and that this had been unfair to the employee.
However, upon appeal of the initial decision, the FWC Full Bench disagreed and quashed the Commissioner’s decision. They did not consider the two working days’ notice of the meeting was too tight. They noted the obligation in the unfair dismissal provision in section 387(d) of the Fair Work Act 2009 extended only to a support person, not an advocate. They found there had not been constructive dismissal as the course of conduct adopted by the employer had not been such that the executive director had been forced to resign.
Section 387 of the Fair Work Act sets out the criteria that the Fair Work Commission must consider to determine whether a dismissal is unfair. Subsection (d) specifically states:
“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account: ... (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;...”
In the above case, the FWC Full Bench noted the role was that of a support person, and not an advocate. The Full Bench made the following statement in relation to section 387(d) above:
“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.”
A support person must maintain confidentiality
In CFMEU v MSS Strategic Medical and Rescue  FWC 4336, an employee who was being disciplined for poor performance and conduct brought a support person who was also an employee of the company and a CFMEU delegate. The support person became so involved in the issues that he later forwarded an email containing information about the internal investigation to the CFMEU and others in his group. The employer then issued a final written warning to the employee who was the support person for breach of the company’s confidentiality policy.
Whilst the FWC found that the employer acted harshly in issuing a final written warning, the Commissioner stated: “Support people need to understand that investigations into another employee’s work performance or behaviour are private matters between the parties, and the confidentiality of those processes should be respected at all times”. That said, the Commission also stated that the employer should have provided him with clear information on confidentiality in the role of a support person.
Practical tips for employers
While an employer is not legally required under the unfair dismissal provisions of the Fair Work Act to offer an employee a support person for disciplinary meetings, it is best practice to notify your employee that they are permitted to bring a support person. Some industrial instruments may actually stipulate a requirement of a support person at such meetings.
With the above cases in mind, it is important that the employer clearly sets out in opening discussions with their employee and support person the role and expectations of the support person:
- The support person is present to support the employee the subject of the meeting, not to advocate for the employee.
- The employee may request a break in the meeting to discuss any issues arising with their support persons.
- All matters discussed in the meeting are confidential and it is therefore inappropriate for anyone present at the meeting to discuss these matters with any other persons, or reveal the information in any other manner.
- If the support person is also an employee, they should be put on notice that any breach of confidentiality will be treated seriously with a written warning.
About the author
Amber Chandler is a Sydney-based partner practising in employment law at law firm Barker Henley. Amber regularly provides legal advice to employers, particularly in regards to HR issues and appears regularly before the Fair Work Commission, Federal Circuit Court and State employment tribunals. Barker Henley has offices throughout Australia and internationally and advises in areas including employment law, work health and safety, workers compensation, insurance and commercial law.