In Victorian Association for the Teaching of English Inc v Debra de Laps FWCFB 613, A Full Bench of the Fair Work Commission has considered sec 387(d) which provides that one of the factors which must be considered in determining whether a dismissal is harsh, unjust or unreasonable is any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. The case centred on whether the employer, in setting up a process under which it intended to review the employee’s performance, constructively dismissed the employee when she claimed she had been forced to resign by the unreasonable conduct of the employer. One of the considerations was that the employer had advised the employee that she was entitled to the presence of a support person at the meetings to review her conduct, but that the person could not be an advocate for the employee.
In determining that the Act does not entitle an employee to have an advocate present, the Full Bench also reviewed the whole facts and determined that the employee’s resignation did not constitute a constructive dismissal.
The Full Bench said “ 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 case is an excellent reference for the principles involved in determining whether the conduct of an employer constitutes a constructive dismissal.