No advocates in termination meetings! No constructive dismissal and no procedural unfairness!

A recent decision of the Full Bench of the Fair Work Commission has confirmed the approach to constructive dismissal and the role of a support person in meetings regarding termination of employment.

Background

The employee, Ms de Laps was employed by the Victorian Association for the Teaching of English Inc (VATE) since 2004, as its Executive Officer.

Ms de Laps was absent from work during July 2012 due to stress and anxiety and returned to work in August 2012. It was alleged by Ms de Laps that following her return to work, during the period August 2012 to December 2012 VATE acted in a hostile manner towards Ms de Laps.

On 10 December 2012, VATE wrote to Ms de Laps inviting her to attend a meeting on 12 December 2012 to discuss her performance and conduct. Ms de Laps was invited to bring a support person and it was noted in the correspondence that "The support person is not to act as your advocate and should not speak on your behalf."

On 11 December 2012, Ms de Laps advised VATE that she would be unable to attend the meeting due to a prior commitment.

In response, VATE wrote to Ms de Lap's stating she was required to attend the meeting on 12 December 2012 and failure to do so may amount to a failure to follow a lawful and reasonable command. Her ability to bring a support person was re-affirmed.

On 12 December 2012, Ms de Laps wrote seeking, amongst other things, a rescheduling of the meeting and requesting details of the specific issues to be discussed.

VATE responded to Ms de Laps on 13 December 2012 outlining an agenda for discussion and directing her to attend a rescheduled meeting on 17 December 2012.

On 14 December 2012, Ms de Laps resigned from her employment in writing.

Ms de Laps subsequently made an application to the Fair Work Commission alleging she had been constructively dismissed from her employment as she was forced to resign due to the conduct or the course of conduct engaged in by VATE.

Decision in first instance

Commissioner Ryan found that VATE's communications to Ms de Laps in December 2012 were not designed to accord procedural fairness. Further, Commissioner Ryan found that VATE's conduct was an unfair process as:

• listed some 22 allegations against Ms de Lap in its letter of 13 December 2012 but failed to disclose the material in its possession regarding those allegations;
• imposed unreasonable requirements on Ms de Laps to adhere to tight timeframes; and
• it only allowed Ms de Laps to bring a support person and not an advocate to the meeting.

In the decision, Commissioner Ryan stated "There is a real sense that VATE was giving 'lip service' to the concept of procedural fairness."

In the circumstances, Commissioner Ryan found VATE's conduct gave Ms de Laps no real or effective choice but to resign and accordingly she was unfairly dismissed from her employment.

Appeal to full bench

On appeal, the full bench found that:

• the legislative provisions of the Fair Work Act 2009 provide for a support person and not an advocate to be present at any discussions relating to dismissal. As such, a support person's role does not extend to that of an advocate and there is no obligation on employers to allow the employee to have an advocate at any such meeting. Consequently, VATE's position did not give rise to procedural unfairness;
• the timeframe between 13 December 2012 (the direction to attend a meeting) and 17 December 2012 (the scheduled meeting) was not unreasonable;
• procedural fairness did not require VATE's to disclose in its letter the material available to in relation to the allegations against Ms de Laps; and
• in considering the course of conduct, there was no threatened or impending dismissal designed to achieve Ms de Lap's resignation or, conduct or course of conduct which gave her no choice but to resign. The full bench pointed to Ms de Lap's own evidence that she had two options if she attended the scheduled meeting - termination of employment or performance management contract.

The decision at first instance was quashed.

Conclusion

The full bench clarified that:

• the Fair Work Act 2009 does not entitle to an employee to have an advocate present at the meetings regarding the termination of employment or a support person acting as an advocate. Under section 387(d) of the Fair Work Act 2009, a criteria for determining the fairness of the dismissal is if the employer unreasonably refuses an employee to have a support person to assist in the discussions relating to the dismissal;
• there is no constructive dismissal if there is more than one option, even if one of the options is termination of employment;
• procedural fairness does not require an employer to disclose to the employee the material supporting the allegations made against the employee; and
• procedural fairness is not impugned if an employee is required to attend a meeting in a relatively short period of time after the allegations have been put to the employee.

If you would like more information about the case, please contact National Workplace Lawyers on +61 2 9233 3989. 

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.