10 Jun 2021

Workplace investigations refresher part 5: Maintaining legal professional privilege over workplace investigation reports

By Jennifer Wyborn, Charisse Matthews, and Caroline Beasley

If parts of the investigation report must be disclosed in order to provide procedural fairness to parties to the investigation, do so in a way which does not disclose information about the investigation which they do not need to know.

In our last two articles, we have considered how legal professional privilege (LPP) can apply to workplace investigation reports and how it can be waived (sometimes inadvertently). For our final article on LPP in this series, two case studies demonstrate how you can ensure that LPP is maintained over workplace investigation reports.

Case study of no waiver: Application by Mr Benedict Hardless [2019] FWC 2114

Mr Hardless lodged an application in the Fair Work Commission (FWC) for stop bullying orders against his employer, and requested production of documents, including an investigation report prepared by an external consultant, AbelsonHowes.

The report had been prepared at the request of Australian Business Lawyers and Advisers (ABLA) on behalf of the employer, for legal advice in relation to validity and liability issues arising from a complaint made by an employee. In support of this application, Mr Hardless provided audio recordings of two separate conversations regarding the report; one with a Human Resources Adviser from the employer and one with the Consultant. Neither knew they were being recorded by Mr Hardless at the time of the conversations.

In his conversation with the Human Resources Adviser where they were discussing welfare issues, Mr Hardless suggested that the investigation by the Consultant was conducted for legal purposes, to which the HR adviser responded "no it's not, so we haven't actually sought the advice". In a separate conversation with the Consultant, there was discussion "in general terms and then more specifically the findings" of the investigation report.

The Commissioner determined that privilege had not been waived, so and the employer did not need to produce the investigation report, because:

  • the HR adviser's response was "part of a general discussion and not one where she gave a considered response". The Commissioner also noted her response was inconsistent with previous written communication between the employer and the Consultant as to the purpose of the investigation report;
  • the Consultant did not have authority to disclose the contents of the report to Mr Hardless, and in doing so breached confidentiality, and it "would be an affront to the notion of fairness that disclosure by a rogue consultant would waive privilege"; and
  • there was no forensic advantage to the employer through this disclosure.

Case study with waiver: Bartolo v Doutta Galla Aged Services [2014] FCCA 1517

Mr Bartolo made an adverse action claim under section 340 of the FW Act against his employer, Doutta Galla Aged Services, which had terminated his employment. As part of that claim, Mr Bartolo sought production of documents relevant to a workplace investigation conducted by law firm Aitken Partners for Doutta Galla.

Ultimately, following a Board Meeting where an Aitken Partners lawyer attended and provided advice and the investigation report, the Board recommended to Mr Bartolo's supervisor, Mr Anderson, that his employment be terminated on the basis of the investigation report. Mr Anderson followed through on this, and stated that one of his reasons was the Board's recommendation. Doutta Galla claimed LPP over the investigation report.

Judge Whelan was satisfied that the dominant purpose in the Board's communications with Aitken Partners was obtaining legal advice. In making a finding that privilege had been waived, Judge Whelan stated that it would not be sufficient to just refer to legal advice to waive the privilege, nor to a conversation with lawyers. However where a person's state of mind is put in issue, and legal advice contributed to the state of mind, LPP will be waived.

In this case, the report and advice of Aitken Partners were relevant to the state of mind of the Board and by extension Mr Anderson in making the decision to terminate Mr Bartolo's employment. On that basis, Judge Whelan found that it would be unfair to Mr Bartolo to allow Doutta Galla to rely on those pleadings without disclosing the factual basis which led to the recommendation that he be dismissed.

Tips for establishing and maintaining privilege during (and after) workplace investigations

  • While referring to the purpose of a workplace investigation in different ways during the process may be confusing, it will not always affect whether LPP applies. Remember that the dominant purpose is determined at the time the document was created, not by reference to what it was used for afterwards.
  • If parts of the investigation report must be disclosed in order to provide procedural fairness to parties to the investigation, do so in a way which does not disclose information about the investigation which they do not need to know.
  • It is possible to disclose the bottom line of legal advice and still maintain LPP. Remember that there are also obligations of fairness to employees involved in investigation processes.
  • If a decision-maker's state of mind is influenced by the contents of investigation report prepared by a legal adviser, care will need to be taken to ensure that privilege is maintained over the report in the course of making the decision.

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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.