When a workplace investigation is required, there may occasionally be good reason to seek legal professional privilege regarding the findings. This is particularly the case in matters that may require criminal investigation, such as fraud, theft or sexual harassment.
So, is it sufficient to engage a law firm when undertaking workplace investigation if you wish to attract legal professional privilege? We take a look at the what privilege means, and its role in investigations.
WHAT EXACTLY IS LEGAL PROFESSIONAL PRIVILEGE?
The concept of legal professional privilege means that communications between an employer and their engaged lawyers are confidential and need not be disclosed, for example to another party or in a court, if the communications have been created for the ‘dominant’ purpose of providing legal advice or in anticipation of legal proceedings.
WHAT IS THE SIGNIFICANCE OF LEGAL PROFESSIONAL PRIVILEGE?
In many circumstances, an employer’s inner workings and thought processes may be something that is best kept private. Ultimately, the key purpose of legal professional privilege is to permit employers and other parties, such as external investigations, to freely discuss information with their solicitors in order to obtain legal advice, without being concerned that the material will form evidence in legal proceedings.
Employers may wish to maintain privilege and keep parts of certain documents confidential if, for example, there are issues with disclosing identities of complainants or witnesses, or permitting potentially inflammatory or commercially sensitive information being disseminated through the workplace and beyond.
HOW CAN WORKPLACE INVESTIGATIONS ATTRACT LEGAL PROFESSIONAL PRIVILEGE?
If an organisation wishes to obtain privilege over communications, it is not sufficient simply to engage a law firm to undertake or oversee the workplace investigation. The law firm’s engagement must be able to be demonstrated as being for the dominant purpose of preparing for imminent legal proceedings, or providing advice in relation to those proceedings.
This was demonstrated in the decision of Gaynor King [2018] FWC 6006, in which Commissioner Wilson determined that the engagement of law firm Minter Ellison to conduct an investigation, under the auspices of providing legal advice, was really an investigation into workplace conduct within the employer council’s policies and procedures. Accordingly, it was determined that legal professional privilege did not exist in those circumstances.
LOSS OF PRIVILEGE
Legal professional privilege can be easily lost or waived. This can occur if a party explicitly states that they waive privilege, or if they provide a document to another party which would ordinarily attract privilege. It is important to note that it is generally irrelevant if the information was intentionally or accidentally provided – once that has occurred, it is hard to argue that the privilege should be maintained. Further, if a party attempts to rely on the contents of a document, it is rare that privilege will be successfully kept over the document.
This was the case in the decision of Bartolo v Doutta Galla Aged Services Ltd [2014] FCCA 1517, in which the employer attempted to rely on the contents of an investigation report but did not wish to disclose it. It was held that relying on a document without providing access to Mr Bartolo was unfair, and the document had to be produced.
WISE Workplace is highly experienced across all steps of the investigation process, including legal professional privilege implications. If you are seeking a robust, defendable investigation, contact us today!
