Industrial relations: Defining the support role

The Land column

By Peter Darley, Chair, Industrial Relations Committee

Managing a performance management process of staff and conducting disciplinary meetings is a complicated task. It can often become increasingly complex when an employee’s witness or support person takes the role of an advocate on behalf of the employee.
When conducting a disciplinary process, employers are required to afford employees with procedural fairness which in many cases includes offering an employee the opportunity to bring along a ‘support person’ to disciplinary meetings.
In determining unfair dismissal matters, the Fair Work Commission (FWC) will consider if the employee was unreasonably refused the opportunity of having a support person present during any disciplinary meeting.
A recent decision of FWC confirmed the scope of a support person’s ability to advocate on behalf of an employee.   
The decision of (Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613) clarified the role and limitations of support persons as:
• The ability to have a support person does not extend to the ability of that person to advocate on their behalf
• The fundamental nature of the support person is to provide emotional support to an employee and
• The Fair Work Act 2009 does not give an employee the express right for someone to advocate on their behalf.
In circumstances where an employer denies the employee an advocate, this would not constitute procedural unfairness.
For smaller or medium sized farm businesses that may not necessarily employ a human resource specialist or may have limited knowledge themselves of the industrial relation framework, this decision is welcomed.
The decision ensures businesses can appropriately undertake performance management processes knowing that support persons do not have the capacity to advocate on an employee’s behalf during disciplinary meetings.
It confirms the long held belief that support persons, whether they are a union representative or solicitor on behalf of an employee, cannot put forward the employee’s case during disciplinary proceedings.
Employers have the right to ask questions of their employees and discipline them as appropriate, without having to argue with an advocate.
However employers are reminded of their obligations to provide staff with procedural fairness but should take some comfort from this decision.

Published 10 April 2014

Contact: Matthew Waring

Phone: 1300 794 000

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