Maintaining privilege in workplace investigations

A decision of the Fair Work Commission has highlighted the importance of managing legal professional privilege in workplace investigations.

Background

Two workers sought to gain access to investigation documents, after they were dismissed following an investigation into bullying allegations made against them. They wished to use these documents to challenge their dismissals.

The Commission had to consider the main reason the documents in question (consisting of the investigation report, interview records, emails and ‘Investigation Protocol’ provided to participants) came into existence.

The employer argued that these documents came into existence for the purpose of obtaining legal advice.

The workers argued that the material did not attract legal professional privilege, as they came into existence for the purpose of informing an investigation into a disciplinary process.

What the FWC found

The FWC decided in favour of the employer, and found that most of the investigation documents were privileged, and therefore would not be provided to the workers.

The FWC found that the relevant documents, particularly the investigation report, came into existence for the purpose of the employer obtaining advice about the complaints. In making this decision, the FWC had regard to the content of the ‘Investigation Protocol’, which stated specifically that this was the purpose of the investigation.

The FWC also found that, provided that the main reason the investigation documents came into existence was to obtain legal advice, it does not mean that the documents cannot be used for another purpose (such as informing a disciplinary process), and that privilege can still apply in such cases.

Was privilege waived?

The workers also argued that in the event the investigation documents were privileged, such privilege had been waived because the employer had provided the workers with the audio recording of the one of the interviews, as well as the findings from the investigation report.
The FWC found that the employer did not waive any part of the privilege by providing these documents, as these were provided for the purpose of giving the workers an opportunity to respond.

The full decision is available here: Peter Tainsh and Markus Willner v Co-Operative Bulk Handling Ltd [2021] FWC 3381).

Lessons for employers

Where employers wish to maximise the likelihood that legal professional privilege will apply to investigation documents (and particular an investigation report), correspondence provided to those taking part in a workplace investigation, and associated communications, should make clear that the investigation is being conducted for the purposes of the employer obtaining legal advice.

How Workdynamic Australia can assist

Workdynamic Australia are experts in this area, and can assist your organisation in conducting privileged and effective investigations within the workplace (and elsewhere) that will withstand legal scrutiny and ensure procedural fairness. We can also act as a guide and soundboard for your internal investigation team. Please contact the team if you have any questions.