Investigating Criminal Conduct at Work: What Happens If An Employee Refuses to Answer Questions?

By Rebecca Lesiw, Melissa Ada and John Tuck

The NSW Court of Appeal has confirmed an employee's privilege against self-incrimination in finding an employer acted unreasonably by requiring an employee to respond to misconduct allegations the subject of a criminal prosecution.

The court found that the terms of an enterprise agreement that termination of employment should not be "harsh, unjust or unreasonable" was incorporated into the employee's fixed-term employment contract, so that in dismissing the employee in the way it did, the employer had breached the employee's employment contract.

Employers and employees should remember:

• common law contracts intended to be read in conjunction with EAs need to be clear in what is excluded and included.

• Employees on fixed term contracts can often have expectations of ongoing employment and employers cannot assume that just because a contract is ending that the employee is not entitled to compensation for dismissal when the contract has been successively renewed over a period.

• Accusations of misconduct that may involve criminal proceedings need to be carefully timed. If criminal proceedings have commenced the employee has has protection from self-incrimination.

Murray Irrigation Ltd v Balsdon [2006] NSWCA 253; BC200607425

(LexisNexis Butterworths Employment Law Bulletin; vol 12; no. 9)