Legal professional privilege is a rule that protects against the
disclosure of communications between a lawyer and their client,
when the dominant purpose of these communications is to seek or
provide legal advice, or for use in existing or anticipated legal
proceedings. There are complex rules regarding how legal
professional privilege may be established, maintained and lost.
A recent decision of the Fair Work Commission in Kirkman v
DP World Melbourne Limited  FWC 605 (Kirkman
Case) shows the importance of establishing and maintaining
legal professional privilege and has highlighted how legal
professional privilege can be used to protect the confidentiality
of workplace disciplinary investigations.
The Kirkman Case shows that a Court or Tribunal may, and has the
ability to, scrutinise an employer's claim to privilege in
relation to documents prepared during an internal investigation,
including an investigation report.
Care needs to be taken as to how an investigation report is
circulated and used (both during and after an investigation).
This includes draft versions of an investigation report.
Whilst disclosure of the gist or conclusion of an
investigation report may not necessarily waive legal professional
privilege, it will depend on the circumstances of each individual
case whether such privilege can be maintained.
If you wish to obtain the benefits of legal professional
privilege in relation to any workplace investigation, (including
work health and safety investigations), we recommend that, should
an issue arise, you seek specialist legal advice from the
outset. Furthermore, advice should be sought on how issues
raised in an investigation report should be put to the employee
accused of the conduct and witnesses, before allowing the employee
to respond to the allegations.
It is always better to act and seek advice early to ensure that
professional legal privilege is correctly established and
The employer company received a complaint of bullying against Mr
Kirkman, having previously instructed its lawyers to engage an
independent investigator to conduct an investigation into
allegations surrounding other employees at the workplace and to
prepare a report on the findings of the investigation. The
investigation discussed allegations against Mr Kirkman and other
employees. Ultimately the report found that the allegations were
Mr Kirkman was subsequently dismissed for bullying on the basis
of the findings of the report and his own responses to the
allegations. He filed an unfair dismissal claim with the Fair
Work Commission and requested a copy of the employer company's
investigation report for the purposes of his claim. The
employer company refused to provide access to the investigation
report, on the basis that the investigation report was legally
privileged. Mr Kirkman disputed this.
Deputy President Kovacic found that the investigation report was
legally privileged, noting that:
the independent investigator was engaged by the employer
company's lawyers for the express purpose of conducting an
investigation to assist in preparing advice for the employer
company. Document control by the employer company was strict, such
that copies of the report and background information were not
the report was marked privileged and confidential;
the investigator's communications were exclusively directed
to the employer company's lawyers; and
the employer company had not waived - expressly or
impliedly - privilege over the document. Partial disclosure for use
in disciplinary discussions in respect of the allegations that were
sustained in the investigation report was permitted.
The employer company was therefore entitled to refuse to provide
access of the investigation report to Mr Kirkman.
The Kirkman Case highlights the importance of ensuring legal
professional privilege is correctly established and maintained from
the outset, and shows that provided privilege is not waived, the
contents of documents and reports prepared during an investigation
can maintain the confidentiality of internal documents and
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.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
Best Lawyers and IFLR1000.
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Solicitors should think carefully before disclosing sensitive information to experts in a letter of instruction.
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