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Fair Work Commission confirms – right to a support person is not a right to an advocate

Employers are increasingly being frustrated by union representatives and lawyers seeking to speak on behalf of employees during meetings regarding disciplinary and dismissal processes. Last week the Fair Work Commission handed down a helpful decision confirming that there are limits on the role of support persons.

In Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613, an employee argued that she had had no choice but to resign after she had been requested to meet with management to discuss her performance and conduct.  She claimed that:

  • she was not given prior notice of the specific issues to be discussed at the meeting; and
  • while she was invited to have a support person present at the meeting, she was warned that the support person could not speak on her behalf.

A Full Bench of the Commission considered these arguments, and determined that the employee had resigned voluntarily, and had not been constructively dismissed.

In doing so, the Full Bench noted that:

  • the Fair Work Act 2009 does not give an employee any right to have an advocate speak on the employee’s behalf at meetings with management; and
  • there is nothing inherently unfair about not disclosing in advance allegations that may be discussed at a performance management meeting (provided that the employee is ultimately given a reasonable timeframe to consider and respond to those allegations, whether at that meeting or at a later date).

The Full Bench’s decision should provide some comfort to HR Managers when planning performance management and disciplinary meetings in the future.

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