Support Person or Advocate... What's the Difference?

In my last post I touched on the difference between a support person and advocate. I find this an interesting distinction so I thought I'll explore the difference in a bit more detail here.

Fortunately we have some case law to look at from a Full Bench decision by the Fair Work Commission in Victorian Association for the Teaching of English Inc v Debra de Laps [2014] FWCFB 613 

In short, this was a case where an employee claimed a constructive dismissal because their employer refused to allow them an advocate at a disciplinary meeting.

First lets look at the Fair Work Act 2009. Section s387 outlines criteria the Commission must consider when determining if a termination was harsh, unjust or unreasonable and subjection (d) refers to a support person. 

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;

Interestingly, this is not a positive right for an employee to have a support person, rather it obligates that an employer can not unreasonably refuse a request for one to be present. So what is a reasonable refusal? Well in terms of a meeting which relates to a dismissal, it is if the employee intends to bring an advocate.

In terms of how clearly this case defined the distinction between support person and advocate; it appears that different firms have slightly different takes on the matter.

Importantly, this case has also clarified the role of a support person. By affirming an employee's right to a support person, but not an advocate, the Full Bench has distinguished between the two roles. A support person is "present to assist in any discussions", whereas an advocate "speaks on behalf of, or argues in favour of, another". Therefore, the assistance a support person provides, must not amount to speaking on behalf of the employee and an employer has a right to limit the role of the support person. - HWL Ebsworth Lawyers

The demarcation between "support person" and "advocate" has not been clearly drawn. While a support person may not be able to speak directly on behalf of an employee, they are also not confined to offering emotional support (as important as that can often be). For instance, as a general observation, they may be able to help an employee formulate what to say, provide advice and take notes of the matters being discussed. - Clayton Utz

Personally, i'm leaning towards HWL on this one - I like how their definition sets up a point where a support person's actions can amount to advocacy. 

I believe it's important good practice to inform staff that they may bring a support person, particularly if the situation appears to be heading towards what may be a dismissal. This way an employer is able to better defend a claim of harshness etc. A manager should consider if the meeting is of appropriate caliber to offer a support person however - just because a manager is holding a performance discussion doesn't necessarily mean a support person should be offered. Ideally a performance matter is dealt with and resolved informally before it escalates to disciplinary proceedings.