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Does an employee have the right to silence?

22 June 2021

3 min read

#Workplace Relations & Safety

Published by:

Ashleigh Warren

Does an employee have the right to silence?

A recent Full Bench decision of the Fair Work Commission (FWC) considered the circumstances in which a dishonest answer by an employee to their employer’s questions provides a valid reason for dismissal.

In Newton v Toll Transport Pty Ltd [[2021] FWCFB 3457], the FWC Full Bench, headed by President Justice Iain Ross, overturned a ruling that a truck driver was fairly dismissed because he lied about his involvement in a fight with a colleague at a union conference outside a Melbourne hotel.

Decision at first instance

In the first instance ruling, the FWC found that despite the fight taking place between two co-workers and the employer paying for the delegates’ flights, meals and accommodation, there was no sufficient connection between the fight and their employment because the event was organised by the union and it was outside of working hours.

Nevertheless, the FWC determined at first instance that the investigation into the incident did have the requisite connection because it occurred “at work” and so the untruthful responses did fall within the employment relationship.

Decision on appeal

On appeal, the Full Bench observed that in some circumstances a dishonest answer to a question about conduct outside of working hours may provide a valid reason for dismissal if the conduct has sufficient connection to employment.

For example, a dishonest answer to a question about conduct outside of work may provide a valid reason for dismissal if an employee damages the employer’s interests by dishonestly and intentionally impugning the character of another employee. Or the dishonesty might mean the employer cannot be confident the employee would be honest with it in the future.

However, the Full Bench ruled, where there is an insufficient connection to employment, dishonest answers by an employee to their employer’s questions about their out of hours conduct could not be a valid reason for dismissal. Moreover, the connection is not established merely because those questions were asked while the employee is at work.

The Full Bench referred the case to another FWC member to determine whether the driver had been dishonest, and, if so, whether this was a valid reason for dismissal and whether the fight had a connection with the workplace.

Lessons for employers

The FWC decision restates existing legal principles set down by earlier FWC and court rulings. These can be summarised as follows:

  • an employee does not have to answer their employer’s questions about a matter that does not have the requisite connection with their employment
  • when the subject matter of the question concerns the employee’s conduct out of hours, the connection exists if:
    • the conduct is, when viewed objectively, likely to cause serious damage to the relationship between the employer and employee, or
    • the conduct damages the employer’s interests, or
    • the conduct is incompatible with the employee's duty as an employee.

Generally speaking, a dishonest answer given by a senior executive to their employer’s question is more likely to provide a valid reason for dismissal than if given by a junior employee because the employer has a greater expectation that the more senior employee will act with loyalty, fidelity and faithfully serve their employer, which is inconsistent with dishonesty. Of course, most senior executives do not have access to unfair dismissal rights so the issue is moot.

Authors: Charles Power & Ashleigh Warren

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Ashleigh Warren

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