The Fair Work Commission has determined that documents related to a workplace investigation were subject to legal professional privilege, because the main purpose of the documents was to obtain legal advice following the investigation.
The facts
Co-operative Bulk Handling Ltd engaged a law firm to conduct an investigation into allegations of workplace bullying.
In turn, the law firm instructed an independent investigator.
After the completion of the investigation, two CBH workers were found to have engaged in bullying, and were dismissed from their employment.
Whilst challenging their dismissal, the workers sought access to the investigation documents. CBH denied the workers access to the documents, claiming that the documents were subject to legal professional privilege.
The concept of legal professional privilege
Legal professional privilege protects communications between lawyers and their clients from being disclosed. It can also apply to communications between a lawyer or their client and a third party. In a workplace investigation process, a privileged investigation report is not required to be disclosed to other parties, which can also prevent the contents from ending up in the media.
Legal professional privilege only operates where the dominant purpose of the document or communication was to obtain legal advice.
There are a number of exceptions to legal professional privilege, including where privilege is waived because the client has acted inconsistently with the claim for privilege (for example, by disclosing the legal advice which has been received).
Are investigation documents prepared for the purposes of obtaining legal advice?
Documents prepared during a workplace investigation will not automatically attract legal professional privilege, even when the investigation is conducted by a lawyer. The communications over which privilege is sought must have been created primarily for the purpose of seeking and providing legal advice. This does not mean that other purposes cannot exist; there may be a number of purposes for the communications.
The investigation protocol adopted by CBH provided three purposes for the investigation and the related documents:
- To obtain more information about the allegations;
- To discern whether the allegations, if substantiated, would amount to breaches of policies and to put those allegations to the respondents to obtain their responses; and
- To make findings, so that the law firm could provide CBH with legal advice in relation to responding to the allegations, including potential disciplinary action.
Importantly, the dominant purpose of making a communication is determined at the time of its production. That means that in order to claim legal professional privilege over documents relating to a workplace investigation, the client must have contemplated seeking legal advice at the time the investigation was commissioned. In this case, CBH had clearly contemplated obtaining legal advice at the outset of the investigation.
Disclosure of the allegations
Finding that legal professional privilege did apply to the documents, the Commission then considered whether CBH had waived the privilege by disclosing aspects of the documents to the workers throughout the disciplinary process.
The Commission found that the matters were disclosed in a limited form, for the purposes of allowing the workers to respond to the substantiated allegations. The Commission was satisfied that this limited disclosure did not constitute a waiver of the contents of the privileged documents. This meant that the investigation report remained privileged, limiting the employees’ ability to pick apart the reasoning and findings in the report itself.
Lessons for employers
Employers intending to conduct workplace investigations should consider at the outset whether they wish to obtain legal advice which necessarily involves arranging an investigation. It is difficult to claim legal professional privilege if an external investigator is engaged before legal advice is sought.
Employers should also avoid sharing investigation reports protected by legal professional privilege, or unnecessarily disclosing the contents of those reports.
Employers should also ensure that an appointed investigator is licensed or registered where required by law (for example under the Security Industry Act 1997 (NSW) or the Private Security Act 2004 (Vic)).
How we can help
For assistance with workplace investigations, contact Russell Kennedy’s Workplace Relations, Employment and Safety Team.
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