We are often asked to assist clients with workplace investigations. The logistics of conducting an investigation will vary; and deciding how to approach the task usually involves answering some or all of the following questions. What is the investigation seeking to achieve? What are some of the possible results? Should there be an internal or external investigator? What is the proper role of lawyers in relation to the investigation?
A recent decision of the Fair Work Commission highlights the importance of speaking to a lawyer at an early stage when addressing these questions, so as to have the best chance of keeping control over the outcome.
In particular, if an employer engages an external investigator directly (that is, without the involvement of lawyers) there will be no legal professional privilege attached to the report – this means that all documents generated by the external investigator may need to be produced to a court in any litigation. However, if lawyers are retained and engage the investigator to report for the purpose of providing advice, legal professional privilege should be able to be claimed over any report and other documents generated by the investigation.
Documents are covered by legal professional privilege if the dominant purpose for which the documents were created was to provide legal advice or in relation to actual or anticipated litigation. If a document is subject to this privilege, then it is confidential and a party cannot be required to produce it, even to a court.
One of the key benefits of legal professional privilege is that a document protected by this privilege does not have to be disclosed unless the client chooses to waive the privilege. The privilege therefore allows the client to undertake a comprehensive investigation, even in cases where:
- the information disclosed is highly sensitive or potentially damaging to the client’s reputation; or
- investigation participants have requested confidentiality and/or have expressed concerns about their safety or potential recriminations.
Legal professional privilege can be waived if the client makes a partial disclosure of the content of otherwise privileged documents and that partial disclosure is inconsistent with maintaining the claim for legal professional privilege.
Legal professional privilege might attach to investigations commissioned by in-house counsel – but only if this was a result of the employer consulting the in-house counsel under the professional relationship of lawyer and client to seek legal advice as opposed to commercial advice or an administrative service.
In its decision in Kirkman v DP World Melbourne Limited, the Fair Work Commission provides support for engaging external investigators through lawyers when legal professional privilege is an important issue. The Commission confirmed that legal professional privilege existed over an external bullying report that an employer commissioned through its external lawyers.
Mr Kirkman demanded that an investigation report prepared by a DGHR Services into allegations against him, and associated documents, be produced to him. The Commission was consequently asked to consider whether the documents were covered by legal professional privilege.
DP World was required to demonstrate why the documents were privileged. In support of the claim for privilege, DP World argued that:
- the documents came into existence at a time that anti-bullying proceedings had been instigated by other employees, including allegations against Mr Kirkman;
- DP World’s legal advisers engaged DGHR Services to provide a factual report into the bullying allegations; and
- the investigation report was provided directly to DP World’s lawyers.
The Commission accepted that the purpose of the creation of the documents was to assist DP World’s solicitors to provide it with advice, and as a result they were privileged.
The Commission did not accept that a reference made by the employer to the investigation report for the purpose of allowing Mr Kirkman to respond to allegations against him was inconsistent with maintaining privilege.
The good news story here is that the Commission accepted DP World’s claim of privilege which was useful in that contentious situation. But privilege is a sensitive concept, so employers considering workplace investigations should obtain legal advice about the best way to structure their investigation, whether legal professional privilege is required and the role that they want their lawyers to play.