When can employers demand that employees answer their questions? And when is an employee's silence grounds for dismissal?
It is well known that individuals have the right to remain silent but is this true in the workplace – particularly in the face of questions which may incriminate them? And if an employee avoids an employer's questions, does this provide the employer with grounds for dismissal?
The answer to both questions is not simply 'yes' or 'no'.
In many circumstances, an employee's failure to follow an employer's direction may give rise to a reason for dismissal. However, in most cases, this hinges on the reasonableness of the direction.
Assessing the reasonableness of a direction to provide information is not necessarily straightforward. Asking one employee whether they have abused another employee in the lunch room as part of a workplace investigation is different to demanding that they provide details of the secret ingredient in their apple pie.
Fair Work Commission decision on lawful and reasonable direction
In a 2019 decision handed down by the Fair Work Commission, Hickey – a self-proclaimed 'Nazi-Sparky' – tried to force one of his apprentices to provide him with information in relation to allegedly taking a cash job for a customer without Hickey's approval.
Hickey demanded that the employee provide information about the cash job or otherwise lose his job. He provided the ultimatum via a text message, saying:
Your choice today bro. Info or job by 4 pm. I'll find out about that **** one way or another even if not through you and I will **** him. So you're not stopping it from happening by keeping quiet. I'll give ya till 4.
When the apprentice refused to provide the requested information, he was fired for, among other things, failing to carry out a "lawful and reasonable instruction that was consistent with his employment contract".
This demands the question of what is a lawful and reasonable direction and when will failure to follow one (in circumstances where an employee refuses to provide requested information) give rise to reason for dismissal?
Hickey alleged that in failing to follow the ultimatum given to the apprentice, the apprentice had resigned. The apprentice argued that the tone of Hickey's text messages made the direction unreasonable and that given the request's context, Hickey had issued him with an ultimatum with which he could not have been reasonably expected to comply.
In assessing the reasonableness of the direction, the commission found that:
the request was couched in language so threatening and offensive that [the apprentice] did not have an option to comply… [the apprentice's] silence in the face of a tirade of expletive laden and threatening abuse… is entirely understandable and is not an indication that [the apprentice] was guilty of anything.
As such, the employee's failure to follow the direction to provide information was insufficient grounds for a dismissal in the circumstances under which the direction had been given.
What constitutes a reasonable direction depends on the circumstances of each case. This includes (among other things):
- the nature of the employment relationship between the relevant parties;
- the terms of the employment agreement;
- the method by which the direction is given; and
- any usual or customary practices in the workplace.
The reasonableness of an employer's direction may also be affected by the consequences faced by the employee if they respond to the direction. For example, a direction may be unreasonable or unlawful if it requires the employee to provide information that would incriminate them.
Can employers still request information from employees?
Employees, like most people in Australia, enjoy a common law right against self-incrimination in certain circumstances. This means that if someone has a real and appreciable danger of a criminal conviction or penalty, they are protected from providing information in response to questions or providing information which may incriminate them. While the general privilege exists to preserve the assumption of innocent until proven guilty, its existence is unclear in the workplace.
So, does an employee's common law right against self-incrimination (ie, the right to remain silent) prevent employers from requesting information from employees while conducting investigations?
The short answer is no. Employers can still request information that can negatively affect the employee in relation to their employment but an employee is likely not obliged to provide information to their employer as part of that investigation if it will incriminate them outside the workplace. Essentially, this means that any direction by an employer requesting information from an employee that will incriminate them, may be an unreasonable direction and likely will not justify dismissal if the employee refuses to comply.
While there have been some cases indicating that employees enjoy the privilege against self-incrimination in an employment law context, the issue and operation of the privilege remains open. Enjoyment of the privilege against self-incrimination may also depend on any laws that apply to the context surrounding the direction for the provision of information. For example, there is a removal of the right against self-incrimination in work health and safety legislation. In the course of certain investigations, a person cannot refuse to answer a question purely because it will lead to self-incrimination. The caveat is that the answer cannot be used as evidence in civil or criminal proceedings against the person.
Employers should be mindful that employees notionally enjoy the right to remain silent if speaking up would lead to self-incrimination. However, employers can still conduct their own investigations, which may lead to adverse findings against the employee. As always, employers must observe procedural fairness at all times during investigations or when issuing lawful and reasonable directions to avoid claims against them (eg, unfair dismissal or adverse action).
To return to the above example, while one employee's failure to reveal the secret of their apple pie may not give rise to a reason for dismissal, the right against self-incrimination would not provide them with a reasonable excuse not to comply with other lawful and reasonable directions as part of an investigation.
So what can an employer do if an employee refuses to answer questions or follow directions that are lawful or reasonable? Employers should warn employees that their failure to follow a lawful and reasonable direction may result in dismissal if they continue to refuse to answer questions.
Being reasonable about procedural fairness and providing such a caution protects employers from potential claims being brought against them by employees who are unreasonably withholding information.
For further information on this topic please contact Aaron Goonrey at Lander & Rogers by telephone (+61 2 8020 7700) or email ([email protected]). The Lander & Rogers website can be accessed at www.landers.com.au.
An earlier version of this article was first published in HRM Online on 11 February 2019.
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