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 [2016] 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.

Lessons

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 maintained.

The Facts

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 substantiated.

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.

The Decision

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 widely circulated;
  • 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 advice.

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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