Can a support person be an employee advocate?

Leaders are sometimes called upon to lead a performance management process for employees where there are issues of underperformance or misbehaviour. Emotions often run high during performance management meetings which can make them difficult to manage, especially when an external party is present as a support person. But what is the role of the support person? Are they just meant to sit and listen or can they speak on behalf of the employee?

A recent case before the Fair Work Commission sheds light on this issue. Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 dealt with an employee who claimed to have been constructively dismissed, i.e. forced to resign, due to poor treatment during the performance management process. One aspect of the complaint from the employee was that while they were allowed a support person at all meetings, they were told that this person was for emotional support only and was not to serve as an advocate on their behalf.

In dealing with this matter the Commission ruled, ‘Under the FW Act, 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 meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.”

This does not mean that a support person cannot say anything but it does clarify that their role is not to speak on behalf of the employee. Businesses must be certain never to deny a reasonable request for a support person, and it is good practice to openly offer one and to be welcoming when one is in attendance during a meeting. However, the focus of the meeting can be clearly and confidently on a direct discussion with the employee rather than a mediated discussion via a support person acting as an advocate.

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