Risky business – waiver of privilege over investigation report

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  • A recent case highlights the danger of inadvertently waiving legal privilege over an investigation report.
  • The Fair Work Commission rejected a City Council’s claim that an investigation report be withheld on grounds of legal privilege.
  • The Council engaged a law firm to conduct a workplace investigation into concerns raised by an employee about potential bullying by three co-workers. The law firm’s investigation report found that parts of the complaint were substantiated.
  • The co-workers were advised of the outcome of the investigation and counselled in relation to the substantiated inappropriate behaviour, but were not given a copy of the report.
  • The employee who had raised the concerns subsequently made an anti-bullying application to the Commission. In the course of the Commission proceedings, the Commissioner raised the prospect of ordering production of the investigation report. The Council objected to the making of that order, claiming the investigation report was covered by legal privilege and therefore did not need to be disclosed. In the alternative, the Council argued that if the report must be produced, that it be done in a redacted form and only provided to the Commission and not to the employees involved.
  • The Commissioner referred to the principles in the Bowker case[1] relating to legal professional privilege, and in particular, the key questions to ask when deciding if privilege applies:
  • Was the dominant purpose (also described as the ‘paramount’ purpose – more than the primary or a substantial purpose) of the document to obtain legal advice or legal services in relation to judicial or quasi-judicial proceedings that were on foot or reasonably contemplated? This is a question of fact to be determined objectively.
  • Whether legal professional privilege had been waived by the Council?
  • In this case, the Commission found that the dominant purpose of the investigation was not to obtain legal advice or legal services in relation to a proceeding, but rather to inquire into the employee’s complaints to see if policies had been breached and, if so, to hold the offenders to account.
  • In the Bowker case, the Commission found that a summary of the findings disclosed the investigator’s conclusions only and not the substance of the investigation report or reasons for making the findings. Accordingly, the Commission found there that privilege over the report had not been waived as the summary was not inconsistent with maintaining confidentiality over the report.
  • In this case, the details provided to the complainant and respondents, and also correspondent from the Council to the respondents’ union setting out detail of the investigation process, went further than just a summary communication. In particular, the Council’s submissions in the proceedings asked the commission o make findings based on the investigation report, including that no finding of bullying behaviour had been found in the report (just inappropriate behaviour). Accordingly, the Commission found that the investigation report was not covered by legal professional privilege and had to be produced.
  • However, the Commission invited the Council to apply to the Commission for certain names to be redacted before the report was communicated to all parties.

Lessons for organisations

  • While it is possible for an investigation report to be subject to legal professional privilege where it is created for the dominant purpose of legal advice or legal services in relation to legal proceedings, it is more likely that one of the main purposes of the investigation will be to find out what has occurred so that disciplinary action can be taken in relation to any misconduct. In such circumstances, privilege will not apply.
  • It is also highly likely that, at some point, the organisation may (intentionally or inadvertently) waive privilege over an investigation report, either by seeking to rely on the report (for example, in legal proceedings) or by disclosing the substance of the report in a manner inconsistent with privilege being maintained.
  • Accordingly, care should always be taken and organisations should approach investigation reports on the basis that, at some point, the report may have to be disclosed to parties involved.

 

Gaynor King [2018] FWC 6006 (September 2018)

[1] Bowker, Coombe and Zwarts v DP World Melbourne Limited & Ors [2015] FWC 7887

Authors:  Cassie Howman-Giles and Kerryn Tredwell, Q Workplace Solutions