5 Tips for Maintaining Legal Professional Privilege in a Workplace Investigation

Recent cases in which claims for legal professional privilege (LPP) have been upheld over investigation documents have revealed some useful tips for maintaining a claim of LPP in a workplace investigation.

What is LPP?

LPP protects a party from being compelled to disclose confidential communications between a lawyer and client (and a third party in some circumstances), if the communications are for the dominant purpose of the lawyer either:

1. providing legal advice (called advice privilege); or
2. providing legal services in relation to actual or anticipated litigation (called litigation privilege).

When will LPP cover workplace investigation documents?

Investigation documents may be protected by LPP where the investigator was engaged to make findings so that a lawyer can provide an employer with legal advice or provide legal services in relation to actual or anticipated litigation.

However, while LPP may apply at the time investigation documents are created, it can be waived depending on what use the employer makes of the investigation findings and/or documents. For example:

• In Bartolo v Doutta Galla Aged Services Ltd¹, a respondent employer to an adverse action application sought to claim LPP over a confidential investigation report. The Court held that LPP applied when the document was created but had been waived due to the decision-maker’s reliance on the report when deciding to dismiss the employee. As in many general protections cases, the decision-maker’s state of mind was squarely in issue in the case, such that this reliance on the report was inconsistent with the maintenance of secrecy over it.
• In Bowker v DP World², a respondent employer faced with a stop bullying application sought to claim LPP over investigation communications. The FWC held that LPP applied and had not been waived despite the employer filing a summary of findings attached to a witness statement. This was because the employer had done so only as evidence of the process undertaken in response to the employees’ complaints and had not relied on the findings or contents of the report in its defence or for any particular forensic advantage.
• In Kirkham v DP World Melbourne Ltd³, a respondent employer to an unfair dismissal claim sought to claim LPP over investigation documents. The FWC held that LPP applied and had not been waived despite the investigator putting allegations to the respondent and referring to the outcome of the investigation in a disciplinary letter to the respondent, as the former was done as part of a confidential process and the latter was done to give the respondent the opportunity to give his version of events and not to obtain a forensic advantage.
• In Stephen v Seahill Enterprises⁴, a recent appeal from a decision to uphold privilege in a stop bullying application, the Full Bench held:
  • A procedurally fair workplace investigation initiated with the intention of informing the relevant employees of the outcome and potentially leading to disciplinary action, will not usually have the required confidential purpose to be protected by LPP. However, a workplace investigation with the dominant purpose of obtaining legal advice or legal services may be.
  • The proper basis to discern the dominant purpose of the investigation is the correspondence commissioning the investigation. In the case, LPP applied based on that correspondence.
  • Later misleading representations made to the complainant/applicant about the purpose of the investigation (to justify a direction to attend an interview), would have waived LPP if “persisted to fruition”. However, there was no waiver because the employer did not ultimately persist in compelling the complainant/applicant to provide information to the investigator.
  • Similarly, if the investigation report were later provided to the Commission for the purpose of consideration under s 789FF(2)(a), that would also waive LPP.
• In Tainsh & Willner v Co-operative Bulk Handling⁵, an employer defending an unfair dismissal claim sought to claim LPP over investigation documents. The FWC did not accept the subject officers’ argument that the correspondence revealed the dominant (or equal) purpose of the investigation was in fact to inform a corrective or disciplinary process. This was because the investigation protocol stated the relevant purpose was to enable a law firm to provide legal advice and the later correspondence with the subject officers was not inconsistent with that purpose when read in context. However, a recording of the oral complaint that started the process was not privileged as legal advice was not in contemplation at the time it was obtained.

Tips for maintaining a claim for legal professional privilege in a workplace investigation

1. The engagement letter or terms of reference should expressly state that the purpose of the investigation is to enable the provision of legal advice and/or legal services in relation to litigation.
2. Investigation documents should be clearly marked ‘Confidential and Subject to Legal Professional Privilege’.
3. All parties should take care not to mislead participants as to the purpose of the investigation throughout the process (eg during introductions in interviews, in correspondence to the parties during and after the process).
4. In particular, employers should carefully consider whether language suggesting an investigation is being conducted as part of company policy or other similar purpose is appropriate.
5. The investigation process and any corrective or disciplinary process that may follow should be kept separate.

This post was co-authored by Susan Forder and Kerryn Tredwell.