Workplace investigations refresher part 4: Waiving LPP over workplace investigation reports

By Jennifer Wyborn, Charisse Matthews, and Caroline Beasley
13 May 2021
There are some subtle issues to consider when ensuring that a workplace investigation maintains legal professional privilege and is not waived.

Related Knowledge

In our last article we looked at when legal professional privilege (LPP) applies to workplace investigation reports. Once LPP has been established, the next hurdle is to ensure it is not accidentally waived. 

There are several case examples where LPP has been found to exist over investigation report documents, but cannot be relied on because it was waived during the investigation. It can be a difficult line to tread between providing procedural fairness to employees involved in these investigations and telling them too much information about the investigation.

When is LPP waived?

Once LPP is established it is not absolute, it may be waived (generally, or in respect of particular issues or documents) if:

  • the client expressly waives it; or
  • the party's conduct is inconsistent with the maintenance of LPP.

It is the second instance, the implied waiver of LPP by conduct, which is often contentious. It is judged objectively, without consideration of the subjective intentions of the parties. An example of this kind of waiver is where a client intentionally discloses the privileged communications to a third party or to the public at large.

In some circumstances LPP may not necessarily be waived, including where;

  • a disclosure of a communication was made under a "compulsion of law";
  • a disclosure was otherwise involuntary; or
  • a disclosure was made to another party who is reasonably obliged to maintain confidentiality (eg. a financial adviser).

We explore these differing conclusions via the case studies below.

Case study: Gaynor King [2018] FWC 6006

We've already met Ms King in our previous article in this series. In short:

  • Ms King made complaints of bullying in the workplace. Her employer, the City of Darwin, engaged Minter Ellison to prepare an investigation report into the complaints.
  • The City of Darwin informed Ms King and other employees of the existence of the investigation as well as its outcome.
  • The City of Darwin tried to claim LPP over the investigation report, but Commissioner Wilson found that the dominant purpose of the report was not to obtain legal advice and it therefore was not covered by LPP.

Commissioner Wilson also commented that even if the dominant purpose test had been satisfied and LPP had been established, it would have been waived. This was on the basis that the City of Darwin's conduct was inconsistent with the maintenance of LPP. In particular, significant factors in King which would have led to waiving of LPP included:

  • Ms King received a letter from Minter Ellison setting out the investigation findings and why they had been made.
  • The City of Darwin sent correspondence to Ms King and the employees involved in the investigation (third parties as far as LPP is concerned) regarding the findings that had been made in the investigation report.
  • Later correspondence defending a claim of denial of procedural fairness set out the detailed process that had been employed by the investigator.
  • The City of Darwin sought to rely on the findings of the investigation before the Fair Work Commission.

Case study: Bowker, Coombe and Zwarts v DP World Melbourne; MUA & Ors [2015] FWC 7887 and Kirkman v DP World Melbourne Ltd [2016] FWC 605

Two cases relating to DP World Melbourne's decision to dismiss its employee, Mr Mark Kirkman, also provide helpful guidance for employers trying to navigate this area.

Employees of DP World made a range of bullying complaints to DP World, including in relation to the conduct of Mark Kirkman. DP World's lawyers Seyfarth Shaw engaged the services of Mr David Gunzburg, principal of a HR consulting business, to investigate and report on complaints made by the employees. Following Mr Gunzburg's report, DP World conducted its own internal investigation into Mr Kirkman's conduct and ultimately decided to terminate his employment. Mr Kirkman made an unfair dismissal application in the Fair Work Commission (FWC). The employees who made the initial complaints made a stop bullying application in the FWC. The issue of LPP over documents relating to Mr Gunzburg's investigation arose in both cases.

In both cases, the FWC found that LPP was established over the Gunzburg documents.

In the stop bullying application (Bowker), DP Gostencnik considered the engagement of Mr Gunzburg was significant in LPP applying. Importantly, the Deputy President noted that when Seyfarth Shaw engaged Mr Gunzburg, it was clear that the engagement was to conduct an investigation and to prepare a written report to assist Seyfarth Shaw in providing legal advice to DP World on the complaints.

The applicants in Bowker argued that even if LPP applied, it had been waived because DP World used the report to prepare the summary given to them, and that summary contained the particulars of the complaints and the findings (ie. whether the particulars were substantiated or not). However, the Deputy President disagreed and found that privilege had not been waived as:

  • The disclosure did not include the substance of the report or the reasons for reaching the conclusions that were reached.
  • Providing it to the applicants in this way was not inconsistent with maintaining confidentiality of the documents.
  • It did not mean that privilege over the whole set of documents had been waived.

In the other case concerning DP World, Mr Kirkman argued that the privilege had been waived by DP World because the allegations about his conduct had been put to him in a letter from DP World and also by Mr Gunzburg during a meeting. The FWC did not agree that privilege was waived as a result of these occurrences; they were intended to provide Mr Kirkman with an opportunity to respond to the allegations.

Why did King and DP World come to different conclusions?

While the facts of King and DP World seem substantially similar, the nuanced difference between the two case studies is crucial to ensuring that a workplace investigation maintains LPP coverage and is not waived.

King demonstrates circumstances in which LPP over the workplace investigation would have been waived. The DP World cases, on the other hand, demonstrate how a workplace investigation can remained covered by LPP. The main lessons are:

How explicit you are

In King, the nature of the correspondence with third parties was more explicit in divulging the "findings" of Minter Ellison in the investigation than the communications about the investigation in the DP World cases.

The summary report given to third parties in the DP World case study was more removed from the contents of the investigation as it:

  • only set out the particulars of the complaints and indicated whether they were either substantiated, not substantiated or unable to be substantiated;
  • did not refer to what was "found by" the law firm Seyfarth Shaw; and
  • did not include the substance of the investigation or the reasons for reaching any conclusions.

Relying on the content

Unlike in King, DP World was not seeking to rely upon any of the contents of the investigation before the FWC.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.