A recent decision of the Fair Work Commission (Commission) may prompt employers to ask a very common question: when are employees obliged to respond to an employer’s request for information? As this decision demonstrates, employers may be prevented from dismissing an employee for remaining silent if requests are not handled appropriately.
The Commission decided that Smerff Electrical had unfairly dismissed a worker after he refused to comply with a demand to disclose the address of an alleged cash-in-hand job he had undertaken together with another former employee of the business. The employer sent an ultimatum sent via text message, stating, “Your choice today bro. Info or job by 4pm…”
In determining that Smerff Electrical’s direction to disclose the information was not binding on the employee and that the ensuing dismissal was unfair, the Commission took the following factors into consideration:
- the manner in which the request for information was expressed; and
- the fact that there was a request to provide the address of the former employee’s new workplace.
Ultimately, the Commission decided to award the employee the amount of $11,400, being 12 weeks’ ordinary wages. In awarding this amount, the Commission considered the employee’s remuneration earned since dismissal, length of service and remuneration which would have been received but for the dismissal. The Commission concluded that reinstatement was not appropriate as it was clear the relationship between Smerf Electrical and the employee had irretrievably broken down.
There is no right to silence in the workplace of the kind which famously applies in a criminal setting. However, a demand for answers or information is only binding upon an employee if:
- it is grounded in an explicit statutory obligation, contractual right (whether sourced in an award, enterprise agreement or employment agreement) or established (preferably written) procedure ; and/or
- the demand amounts to a lawful and reasonable direction, in all the relevant circumstances.
Accordingly, where an employer’s direction to provide information is fundamentally unreasonable or unsupported by relevant legal instruments, an employee may be entitled to remain silent without disciplinary consequence.
Lessons for employers
- Consider whether your employment agreements and/or policies and procedures contain provisions which oblige employees to provide information in circumstances that commonly arise, such as medical assessments in connection with fitness for work and interviews in workplace investigations.
- Always consider the most appropriate manner in which to make a request for information, articulate the reasons for the request and clearly and respectfully state the consequences of non-compliance, together with the legal grounds for the request.