Justice Whelan of the Federal Court has held that an
investigatory report into the conduct of an employee is not covered
by client legal privilege. Accordingly, it may be disclosed to the
subject of the report.
Doutta Galla Aged Services employed John Bartolo in its aged care
facility. Doutta Galla appointed a law firm, Aitken Partners, to
investigate the circumstances in which Bartolo had sent a
particular email. Aitken Partners sent their report into the matter
to the board, which recommended Bartolo's termination to the
CEO. Bartolo alleged in the Federal Court that the termination
amounted to adverse action and sought discovery of the report.
Doutta Galla objected for the reason that the report was protected
by client legal privilege. Justice Whelan disagreed as the
investigation was not required to be undertaken by lawyers. Justice
Whelan conceded that some parts of the report may be privileged but
the entirety of it certainly was not. Furthermore, in her
Honour's view, it would be unfair to prevent Bartolo from
obtaining the report when it formed the basis of the reasons for
the recommendation of his termination.
Lessons for Employers
Employers should note that the decision is not a definitive ruling
on the subject: this is a decision of one judge on an ancillary
aspect of the case. Employers should consider, however, arranging
for one of its officers to sign the report and include it in their
brief to the instructing solicitors in order to maximise the
prospects of it being covered by client legal privilege.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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