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FWC clarifies support person vs advocate controversy

In a win for employers, the Full Bench of the Fair Work Commission[1] has overturned a recent unfair dismissal decision and in doing so, clarified aspects of employer obligations about support persons during a misconduct investigation.

Touching on issues such as procedural fairness, the role of a support person and reasonable notice of a formal meeting, this decision contains important lessons for employers undertaking HR investigations of workplace wrongdoers.


The employee in question (Ms de Laps) claimed in August 2013 to have been forced to resign from her position as an Executive Officer with the Victorian Association for the Teaching of English Inc (the employer) due to her employer’s conduct.

In particular the employee claimed that her employer failed to afford her procedural fairness and gave her ‘no option’ but to resign during a prolonged HR investigation process.

At the first instance, the FWC agreed with the employee’s argument, stating that the process taken by the employer was not “designed to afford procedural fairness”.

In the Commissioner’s eyes, the employer had:

  • Failed to disclose all material relating to allegations against the employee
  • Required an overly ‘tight’ timeframe for the meeting
  • Refused to allow the employee an advocate at the meeting

The Commissioner considered the employer was merely giving ‘lip service’ to the concept of procedural fairness during the December 2012 workplace investigation.

As a result, the Commissioner viewed the employee’s resignation prior to the meeting a ‘constructive’ dismissal that in the circumstances was unfair.

The employer subsequently appealed the FWC Commissioner’s decision.

The Full Bench Decision

On appeal in February 2014, the Full Bench overturned the Commissioner’s decision and decided in the employer’s favour.

The Full Bench quickly decided that the Commissioner in the first instance had erred on a number of important points:

  • The decision to refuse an advocate cannot be regarded as constituting an element impacting on procedural unfairness
  • The FW Act requires the allowance of a ‘support person’ if requested but is silent on any other purported obligation to allow an advocate
  • The timeframe from when the employee received the employer’s letter (13 December 2012) advising her of the meeting, and when the meeting was to be held (17 December 2012) was not so “tight” as to be unreasonable and thus deny procedural unfairness

Other complaints by the employee concerning her employment that led to an alleged constructive dismissal were not substantiated on the evidence.

In the Full Bench’s view, the conduct or course of conduct by the employer during its workplace investigation was not such as to place the employee in a position where she was forced to resign.

Indeed, the FWC viewed aspects of the employee’s own evidence as inconsistent with her assertion she had been forced to resign.

Ultimately, the FWC Full Bench considered the employee was not dismissed within the meaning of the FW Act.

Lessons for Employers

Prudent employers would be aware that they are required to afford procedural fairness to employees during a workplace investigation.

However, when conducting a workplace investigation employers should be clear about the limit of procedural fairness obligations under the Fair Work Act.

The FWC’s decision – for now – puts to rest arguments that an employer is required to permit a support person to act as an advocate also.

The decision confirms that although an unreasonable refusal to allow a support person during a misconduct interview will impact on procedural fairness requirements, the Fair Work Act’s support person obligations do not extend to a requirement to permit a support person to act as an advocate.

The decision also demonstrates that an employer following a robust HR investigation process (even if unpleasant for the employee concerned) does not of itself mean that the employer intends to bring the employment relationship to an end or that the employee has no choice but to resign.

[1] Victorian Association for the Teaching of English Inc v de Laps [2014] FWCFB 613 (19 February 2014)

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