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FWC give guidance on support person role

A recent decision of the Fair Work Commission’s Full Bench has provided some clarity about the role of a support person in a termination or performance management process.

In the decision of Victorian Association for the Teaching of English Inc v de Laps, the Employee resigned from her employment following the initiation of a performance management process by VATE.  The Employee subsequently made an application for unfair dismissal on the basis that the process undertaken by the VATE left her with no option but to resign.  The VATE objected to the application on the basis that the Employee had not been dismissed, but rather resigned from her employment.  This objection was heard separately to the substantive matter of the case, and Commission Ryan agreed with the Employee, that she was forced to do resign “because of conduct, or a course of conduct, engaged in by VATE”.

The matter was appealed by VATE and the Full Bench accepted that the finding that the performance management process undertaken by VATE was not designed to accord the Employee procedural fairness, was not open to Commissioner Ryan on the facts. Part of the argument led by the Employee at the initial hearing was that certain wording in one of VATE’s letters to her about the role of a support person, prevented her from having an advocate, such as a lawyer, present at the proposed performance review meetings.  On this matter, the Full Bench stated:

“…the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present…”. 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 can be regarded as constituting an element of procedural unfairness.”

This decision assists employers to clarify the role of a support person during meetings relating to performance management and termination. This decision supports the view that a support person is a person who is present in the meeting to provide emotional support to an affected employee, rather than a person to argue their case for them.

Lisa Aitken is an accredited specialist in workplace relations law and the principal of Aitken Legal, a law firm specialising in employment law for employers. www.aitkenlegal.com.au. The information in this column is intended as a guide only.  Liability limited by a scheme approved under professional standards legislation.

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