Is there a right to silence in the workplace?

The world, including the workplace, operates best when we all cooperate in a proper exchange of information for lawful purposes.

The criminal law principle that an individual cannot be compelled to testify at their own trial or to confess their guilt (i.e. their right to silence) privileges them from having to say anything during an investigation or a trial. Silence cannot be held against an individual to establish guilt.

So, do employees have the same right to refuse to answer questions in a workplace investigation? Perhaps the subject matter of the investigation will be important?

On 30 August 2013 Justice Adamson in Baff v NSW Commissioner of Police upheld the privilege against self incrimination for Constable Baff allowing him to refuse to answer questions by the Police Commissioner arising from a shooting incident in May 2011.

Although Constable Baff is a police officer and, the incident was a shooting, the principle that an employee who is suspected of a crime in the workplace could maintain his/her right to silence in any workplace investigation arising from that incident or allegation remains the same.

However, an employee's silence does not prevent an employer from conducting its own investigation and making findings. An employer may then determine what action is to be taken based on the material obtained during that investigation. The action taken by an employer following an investigation may be adverse to the employee even if he/she has remained silent during the investigation.

Of course, any workplace investigation must be fair and thorough and be conducted objectively by a person with the proper skills to undertake the investigation.

Case Example:
Constable Baff was a police officer undertaking duties in May 2011 when his gun discharged injuring a woman (the incident).

Constable Baff refused to answer questions about the incident and claimed the protection of the common law privilege against self incrimination.

The Commissioner directed Constable Baff on a number of occasions to take part in a non-criminal workplace investigation interview and contended that the privilege against self incrimination had been abrogated by necessary implication of Section 201 of the Police Act 1990. The Act provides that a police officer who neglects, or refuses to obey a lawful order, or to carry out any lawful duty is guilty of an offence under clause 8 of the Police Regulations 2008.

Constable Baff still refused to answer questions and relied on his privilege against self incrimination.

Constable Baff was issued with a directive to participate in a non-criminal investigation. Which noted that his failure to answer questions was a breach of the NSW Police Force Code of Conduct, and as a result he may be sanctioned for not answering questions.

Constable Baff notified the police that he would not participate in an interview if he was asked about the incident.

The question was whether a statutory obligation overrode his common law rights. More specifically, as a result of the combined effect of Section 201 of the Act and clause 8 of the Regulations - had Constable Baff's common law privilege against self incrimination been abrogated, obliging him to answer the questions in relation to the incident?

Did Constable Baff irrevocably relinquish his privilege against self-incrimination by taking an affirmation of office as a police officer or signing an undertaking to abide by the Code of Ethics?

Justice Adamson held that the privilege against self incrimination was available to Constable Baff as he was suspected of, but had not been charged with, a criminal offence, therefore he cannot be compelled to answer questions which may incriminate. His Honour held [at 112]:

"I discern neither in the Act nor the Regulations any indication that Parliament has directed its attention to the privilege against self incrimination, much less consciously decided on its curtailment or abrogation. Nor, in my view, does the need for a disciplinary and hierarchical police force of itself necessarily require the abrogation of the privilege... "

It was held that the Police Commissioner was not entitled to take any action against Constable Baff for his refusal to answer questions about the incident, since his refusal amounts to an exercise of a right which had not been abrogated.

Any order or direction requiring him to answer such questions would not be a lawful order, nor is the Police Commissioner entitled to draw inferences adverse to Constable Baff by reason of his exercise of the privilege. His Honour held that neither the classification of the interview, or the views of the Commissioner or the DPP, as to whether there was sufficient evidence to warrant prosecution affects the fact that Constable Baff remained, exposed to the risk of criminal prosecution.

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.