A number of court decisions have demonstrated the difficulty of maintaining legal professional privilege (LPP) over workplace investigation reports relating to employee misconduct. However, a recent case provides a good example of how to maintain legal professional privilege – and use it to your advantage.
Legal professional privilege applies to confidential communications between a client and their legal advisers that are created for the dominant purpose of providing legal advice or being used in litigation. Parties to litigation are not required to produce these communications during court proceedings.
In Kirkman v DP World Melbourne Ltd (2016)1, DP World sought legal advice regarding workplace bullying allegations made by a number of complainants against Mr Kirkman and other DP World employees.
DP World's lawyers then engaged a third-party investigator to conduct an investigation and prepare a report of its findings (the Report). DP World later conducted its own investigation regarding Mr Kirkman's conduct in order to determine appropriate disciplinary action. During the Investigation, DP World relied on the findings in the Report and subsequently dismissed Mr Kirkman. Mr Kirkman made an unfair dismissal claim in the Fair Work Commission (FWC).
To determine whether the Report could be produced in the subsequent unfair dismissal proceedings, the FWC had to consider whether it was subject to LPP.
There were two key aspects of the FWC's decision, outlined below.
- Was the report subject to LPP?
Significant factors in this case were that:
- the Report was commissioned solely by DP World's lawyers;
- the engagement letter expressly stated that the purpose of the Report was to assist DP World's lawyers in preparing legal advice regarding the bullying complaints; and
- the external investigator:
- communicated exclusively with DP World's lawyers and the participants in the investigation; and
- advised participants that he was conducting an investigation on behalf of DP World's lawyers.
The FWC noted it was immaterial that DP World later used the Report's findings in an internal investigation because the reason the document was brought into existence was to provide legal advice.
- Did DP World waive the report's LPP?
If LPP is waived by the party claiming privilege, the document must be provided to the other party in the legal proceeding. It is important to remember that you must not disclose the substance of the privileged material or state that disciplinary action is being taken on the basis of specific legal advice, as this may result in LPP over the documents being waived.
In this case, the language DP World used in delivering the findings and outcome to Mr Kirkman during the internal investigation was crucial to maintaining LPP over the Report.
The letter from DP World to Mr Kirkman stated that the employer wished to meet with him to give him an opportunity to respond to the bullying allegations. The letter only broadly referred to the relevant allegations in the Report.
DP World also informed Mr Kirkman that he would not be provided with a copy of the Report.
The FWC found that DP World's communications were not inconsistent with maintaining LPP, and determined that DP World had not waived the privilege. Accordingly, the Report was not provided to Mr Kirkman during the unfair dismissal proceedings.
Lessons for employers
LPP means your business can carry out an investigation on a confidential basis. In addition, if a workplace investigation results in adverse findings against your business, LPP will protect your business from producing the report to a third party. To ensure your investigations are protected by LPP, have processes in place for commencing investigations and seek legal advice early.
Remember: It is likely that investigation reports will be protected by LPP if an external investigator is engaged by your business's lawyers or in-house counsel.
Communications about the investigation and report should be carefully worded to make it clear that the purpose is limited to obtaining legal advice.
As this case shows, it is possible for your business to subsequently use the report and its findings for an alternative purpose once the investigation is complete. However, any disclosure must be limited to a general summary of the content and only disclosed to the extent it is relevant to this secondary purpose. If you disclose specific or irrelevant information from the report, you may waive LPP.
1Kirkman v DP World Melbourne Ltd  FWC 605.
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