01 Apr 2021

Workplace investigations refresher part 3: legal professional privilege and workplace investigation reports

By Jennifer Wyborn, Charisse Matthews, and Caroline Beasley

Employers may seek to engage external law firms to conduct workplace investigations on their behalf, but can't assume legal professional privilege automatically applies to the investigation.

Employers are required to conduct workplace investigations for a range of reasons, including in accordance with their policies or with legislation. These investigations often concern very sensitive and technical matters. For these reasons, it is important to understand the extent to which legal professional privilege (LPP) can and should be used by employers when conducting workplace investigations.

What is legal professional privilege?>

LPP is a protection which ensures that particular documents can remain confidential and not be disclosed as part of compulsory disclosure processes. There are two types LPP: advice privilege and litigation privilege. They have the following elements:

  1. They apply to confidential communications between a lawyer and their client.
  2. For the dominant purpose of either:
    1. providing legal advice to the client (advice privilege); or
    2. the client being provided with legal services relating to actual or anticipated litigation (litigation privilege).

LPP is not confined only to "communications" between lawyers and their clients: it can also apply to recommendations about more practical matters about what the client should do in the relevant legal context.

When does legal professional privilege apply to workplace investigation reports?

Employers may seek to engage external law firms to conduct workplace investigations on their behalf. In these circumstances the lawyer-client element of privilege will be established, but it is important to ensure that:

  • the dominant purpose test is satisfied; and
  • the confidentiality of the document/communications is maintained and not accidentally waived.

A court will look at the dominant purpose of the document at the time it was created, rather than what it was used for afterwards.

Case study: Gaynor King [2018] FWC 6006

A case example of where the dominant purpose test was not satisfied in the context of an investigation report prepared by an independent law firm was in Gaynor King [2018] FWC 6006.

King considered the question of whether an investigation report prepared by Minter Ellison for Ms King's employer, the City of Darwin, had to be produced in the proceedings relevant to Ms King's stop bullying application to the FWC. Relevantly:

  • Ms King first raised her bullying complaints with the City of Darwin in November 2016.
  • In December 2016, the City of Darwin advised the persons named in the complaints that complaints had been made and Minter Ellison had been engaged to conduct an investigation.
  • In April 2017, Minter Ellison advised the City of Darwin it had found one of the two people named in the complaints had breached the Code of Conduct.
  • City of Darwin then wrote to the people involved in the investigation, including Ms King, and advised them of the outcome of the investigation and that a breach of the Code of Conduct had been established.
  • The City of Darwin then sought to claim LPP over the investigation report prepared by Minter Ellison.

Commissioner Wilson was not satisfied that the dominant purpose of the investigation report was for the City of Darwin to obtain legal advice, because:

  • the City of Darwin employees involved in the investigation knew about the complaints;
  • the employees involved knew there would be an investigation;
  • all the employees involved in the investigation were informed of its outcome and that there had been a breach of the Code of Conduct found by the investigators;
  • the City of Darwin did not characterise the investigation report as for the purpose of legal advice; and
  • at the time of the investigation report, the stop bullying application was not before the FWC so legal services were not required for a proceeding.

Tips for establishing privilege over workplace investigations

  • If it is a situation where the employee is likely to bring litigation, wait until this happens. Then it will be possible to rely on litigation privilege.
  • In any event, ensure that any engagement letter covers off on the lawyer's role to provide the client with legal advice in relation to the particular investigation they will be conducting and resulting obligations under the relevant legal framework.
  • Although it is not necessarily a foolproof method, consider how external investigators are appointed. Appointment can be a helpful argument in favour of LPP over documents if required. For example, could your organisation have external legal representatives brief an investigator on your behalf?
  • Ensure that third parties who need to be involved in the investigation are informed about it (if required) in a way which will preserve the confidentiality of the process.

Once LPP has been established, the next hurdle is to ensure it is not accidentally waived. This will be covered in part 4, "Waiving legal professional privilege over workplace investigation reports".

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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.