Australia: Silence not necessarily golden - privilege in an employment context

The common law privilege against self-incrimination is a well-established legal principle, long recognised by Australian courts as an essential protection.

To invoke the privilege, a person must have a "real and appreciable danger of conviction (or penalty)".1

Unless excluded by statute, it acts to safeguard individuals from answering questions that may incriminate the entity they own or work for and/or themselves as well as from producing incriminating evidence. 2

The underlying reason for this privilege is that it is morally unjust to compel a person to expose themselves to punishment or to forfeit a right. The privilege also helps to uphold the presumption that a person is innocent until proven guilty.

The most common applications of the principle are to avoid criminal or civil penalties. However, its application can become murky in the realm of workplace investigations or disciplinary proceedings, in which the individual is unlikely to be immediately subject to conviction or penalty.

In the decision of Grant v BHP Coal Pty Ltd [2017] FCAFC 42 (Grant), the Full Bench of the Federal Court of Australia recently indicated some relevant factors to determine whether a claim of privilege has merit in the context of a workplace disciplinary process.

What were the circumstances?

The appellant, Mr Grant, started his employment with BHP, the respondent, as a boilermaker at a mine in central Queensland in 2003. In 2011, while working at the mine, Mr Grant injured his shoulder for the first time and subsequently reinjured it in 2012 when he was mowing the lawn at his home. As a result, the appellant required stabilisation surgery.

Mr Grant was on extended sick leave from July to September 2012, during which time he did not communicate frequently with his employer other than to provide a series of medical certificates. In April 2013, he produced a medical certificate stating he was fit to recommence work, however his supervisor required a medical assessment before allowing him to return to his duties.

Despite being advised that failing to attend the assessment could have consequences for his employment, Mr Grant refused to attend and so he was barred from entering the worksite. He did attend a directed workplace meeting to investigate why he would not undertake a medical assessment, but refused to answer any questions that weren't first provided to him in writing.

Importantly, Mr Grant did not specify at the time that his refusal was on the basis of a claim of privilege. Subsequently, Mr Grant was given a show-cause notice to which he responded before his employment was terminated in May 2013.

Lengthy litigation

The matter has a lengthy litigation history. Mr Grant first applied to the Fair Work Commission (FWC) for unfair dismissal remedies under s394(1) of the Fair Work Act 2009 (Cth), with the FWC determining that Mr Grant's dismissal by BHP was not "harsh, unjust or unreasonable".

Mr Grant appealed to the Full Bench of the FWC, which upheld the decision at first instance. In this first appeal, Mr Grant raised the argument that he was not obliged to obey an instruction to answer questions at the meeting he attended because he was exercising his privilege against self-incrimination. The Full Bench rejected this submission.

An originating application to the Federal Court was made seeking writs of certiorari and mandamus. 3 Justice Collier declined the appeal orders and confirmed that the privilege against self-incrimination did not apply to the meeting. Her Honour said Mr Grant was unreasonably delaying the meeting by refusing to answer questions.

Mr Grant then appealed to the Full Bench of the Federal Court of Australia. Among other things, Mr Grant again submitted that he could not be dismissed for relying on his privilege against self-incrimination at the meeting. BHP countered that there is no privilege in the context of the workplace, as there was no real and appreciable safety risk likely to be revealed in Mr Grant's answers. Critically, Mr Grant also failed to inform BHP before refusing the meeting that he was relying on the privilege.

Mr Grant's appeal to the Full Court was dismissed. However, the Full Bench did not conclusively rule on the issue of self-incrimination due to a "vacuum of facts". 4 Importantly, the decision provides salient commentary on two key points—the legal context of a workplace investigation or disciplinary proceeding, and the necessary circumstances for the privilege to apply.

Importance of the legal context

The legal context in which the employer is conducting the investigation or disciplinary proceeding is important as it may prevent the privilege from applying. For this reason, the specific statutory scheme in which the industry operates, the relevant enterprise bargaining agreement, award and the terms of the employment contract should be considered.

In Grant, the safety obligations imposed on the Queensland mining industry to protect the health and safety of workers were critical. 5 Mr Grant argued that by answering questions at the meeting he would have been exposed to admitting a criminal offence, namely his failure to comply with instructions given by the mine's senior executive for the safety and health of persons, 6 a potential offence under s34 of the Coal Mining Safety and Health Act 2011 (Qld). 7

The employer argued that it had the power to direct Mr Grant to attend and explain his conduct to discharge the employer's safety obligations, and also because Mr Grant's employment contract contained the same obligation.

The court was seemingly not convinced by Mr Grant's argument, commenting that the purpose of investigative workplace meetings is usually to provide the individual with an opportunity to justify their conduct, rather than to admit or deny facts that could lead to an offence being established. 8

Mr Grant cited the decision of Hartmann v Commissioner of Police (1997) 91 A Crim R 141 (Hartmann) to the court to support his claim of privilege, where it was found that a claim of privilege could protect an employee from the "penalty" of termination. The Full Court noted the importance of the legal context of Hartmann, distinguishing it from this case on the basis that Hartmann concerned evidence given in a royal commission and a series of penalties under a specific statutory police disciplinary regime. 9

Because of other findings, the Full Court was not required to definitively decide on how the legal context affected Mr Grant's claim of privilege. Nevertheless, the legal context could significantly impact whether or not privilege applies in future decisions.

General considerations still applicable

Privilege may not be validly claimed when the so-called privileged information has already been provided and there is accordingly no increase in jeopardy. 10 It should also be noted that a claimant must identify and disclose that they are invoking the privilege at the time the issue arises. 11

Whether the individual is claiming privilege against self-incrimination in an employment context or not, there must still be a real and appreciable risk of incrimination as well as a bona-fide apprehension of that consequence on reasonable grounds. 12

Withholding and disclosing information inconsistently perhaps reflected unfavourably on Mr Grant's case – he voluntarily provided his excuse for non-attendance to the FWC without the alleged fear of self-incrimination he felt at the meeting.

Where does self-incrimination stand in the workplace?

This decision leaves the door somewhat open for the right to privilege from self-incrimination to be invoked in an employment context. 13 The court rejected BHP's assertion that privilege was not applicable in the sphere of employment, saying "that proposition is too wide". 14 Indeed, the judges referred to instances in which privilege had been relied upon, including by a police officer in an employment investigation. 15

This case highlights that circumstances may give rise to a successful workplace claim of privilege. For example, privilege could be enlivened when employees refuse to answer employers' questions concerning their external behaviour that could lead to, or has already led to, charges being laid against them. This will not prevent an employer from conducting an internal investigation that may adversely impact the worker's employment, though it may protect an employee adding to the evidence against them on an external charge. 16

Although Grant is not authority on the issue, the decision strongly indicates that the legal context in which the investigation or disciplinary proceeding is taking place is crucial to determining if and how privilege may apply (if at all). It also indicates the circumstances required for invoking privilege.

Generally, it would be difficult for an employee to validly invoke privilege but, as always, careful management of disciplinary investigations and processes, together with legal advice, will mitigate risk.

This article was originally published in the June 2017 issue of Proctor and is republished here with their kind permission. Click here to read the article.

Footnotes

Notes

1 Sorby v The Commonwealth (1983) 152 CLR 281 at 294; Accident Insurance Mutual Holdings v McFadden (1993) 31 NSWLR 412 at 421-422.

2 Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 335.

3 Proceedings instituted under s39B of the Judiciary Act 1903 (Cth).

4 Grant v BHP Coal Pty Ltd [2017] FCAFC 42 at [110].

5 Coal Mining Safety and Health Act 2011 (Qld).

6 Section 39(2)(d) of the Coal Mining Safety and Health Act 2011 (Qld).

7 Sections 34 of the Coal Mining Safety and Health Act 2011 (Qld).

8 Grant v BHP Coal Pty Ltd [2017] FCAFC 42 at [110].

9 Grant v BHP Coal Pty Ltd (No.2) [2015] FCA 1374.

10 Grant v BHP Coal Pty Ltd [2017] FCAFC 42 at [109], citing Gemmell v Le Roi Homestyle Cookies Pty Ltd (in liq) [2014] VSCA 182 at [87] and Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372 at [41].

11 Ibid at [111], citing Heydon JD, Cross on Evidence (Lexis Nexis) at [25100]; Re Trade practices Commissioner v Arnotts Limited [1989] FCA 256 at [6].

12 Ibid at [109], citing Re Australian Property Holdings (in liq) No.2 (2012) 93 ACSR 130, [115] and Anderson v Australian Securities and Investments Commission [2012] QCA 301 at [22].

13 Some public sector employment statutes will specifically override the privilege.

14 Grant v BHP Coal Pty Ltd [2017] FCAFC 42 at [108].

15 Police Service Board v Morris (1985) 156 CLR 397 at 403, 408 and 411.

16 See Baff v NSW Commissioner of Police (2013) NSWSC 1205; Michael Barnes and Nicole Dunn, 2013 'The Right to Silence Fact or Fiction in the Workplace', Carroll & O'Dea, codea.com.au/publication/the-right-to-silence-fact-or-fiction-in-the-workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions