Do employees have a right to remain silent?

When can and can’t employers demand employees answer their questions? And when is their silence grounds for dismissal? Legal experts explain.

You have the right to remain silent. Anything you say can and will be used against you…” We’ve all heard this phrase, but when it comes to the workplace, do employees have the right to remain silent, particularly in the face of questions which might incriminate them? And if an employee shirks away from an employer’s questions, does this provide the employer with grounds for dismissal?

The answer to both questions is not a simple ‘yes’ or ‘no’.

In many circumstances, failure to follow an employer’s lawful and reasonable direction may give rise to a reason for dismissal in certain situations. In most cases, this will hinge on the reasonableness of the direction.

Assessing the reasonableness of a direction to provide information is not necessarily straightforward. Asking Alison whether she abused Rinesh in the lunch room as part of a workplace investigation is very different to demanding that Alison provides details of the secret ingredient in her apple pie just because you’re hungry.

The Nazi-Sparky Case

In a decision handed down in the Fair Work Commission earlier this year, an employer, self-proclaimed ‘Nazi-Sparky’ Mr Hickey, tried to force an apprentice employee to provide him with information in relation to allegedly taking a cash job for a customer without Mr Hickey’s approval.

Mr Hickey demanded that the employee provide information about the cash job, or otherwise lose his job. He provided the ultimatum via 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 give the requested information, he was fired for, among other things, failure to carry out a “lawful and reasonable instruction that was consistent with his employment contract” (for some reason the reason for dismissal was much less colourful than Mr Hickey’s text message).

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?

Mr Hickey alleged that in failing to follow the ultimatum given to the apprentice, the apprentice ended his own employment by resignation. The apprentice argued that the tone of Mr Hickey’s text messages made the direction unreasonable, and that given the context of the request, Mr Hickey issued him with an ultimatum with which he could not have 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, failure to follow the direction to provide information was insufficient grounds for dismissal in the circumstances under which the direction was given.

Who is ‘reasonable’ then?

What constitutes a ‘reasonable’ direction will depend on the circumstances of each individual 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 impacted by the consequences to the employee of responding to the direction. For example, a direction may be unreasonable or unlawful if it requires the employee to provide information that would incriminate them.

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 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 not as clear in the workplace.

So does an employee’s common law right against self-incrimination, 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 impact the employee in relation to their employment, but an employee is likely not obliged to provide information to the employee 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 would not justify dismissal if the employee refused to comply.

While there have been some cases indicating that employees do 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 can’t 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.

What does this mean for employers?

Employers should be mindful that employees do notionally enjoy the “right to remain silent” if speaking up would lead to self-incrimination. But 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 such as unfair dismissal or adverse action.

Turning back to our earlier example, while Alison’s failure to cough up the secret of her apple pie may not give rise to a reason for dismissal, the right against self-incrimination wouldn’t provide her with a reasonable excuse not to comply with other lawful and reasonable directions as part of any investigation.

So what can an employer do if an employee refuses to answer questions or follow directions that are lawful or reasonable? Employers should ensure that they warn employees that a failure to follow a lawful and reasonable direction risks 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.