The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) (FW Act) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the FWC (such as all documents or records relating to a dismissal process).
These types of orders will often require producing parties to consider whether the documents required to be produced are confidential or subject to privilege. The onus falls on the party claiming legal privilege to demonstrate that the documents were created for the purpose of providing legal advice or for use in legal proceedings. If the claim is successful, the documents will not have to be disclosed to the other party and conversely, if the claim is not successful then the other party will have access to the documents.
In Tainsh and Willner v Co-Operative Bulk Handling Ltd [2021] FWC 3381, the FWC recently ruled upon a claim of legal professional privilege over documents that an employer (the Respondent) and its external investigators were ordered to produce in unfair dismissal proceedings.
Two employees (the Applicants) commenced proceedings against the Respondent alleging that they were unfairly dismissed from their employment. The Applicants were dismissed following an investigation of a grievance in which it was alleged that they had engaged in workplace bullying toward an apprentice or apprentices.
Following the receipt of the grievance, the Respondent engaged a law firm to conduct an investigation. The law firm in turn instructed an external investigation firm to conduct the workplace investigation.
In May 2021, Deputy President Beaumont made an order that the Respondent and the external investigators produce to the FWC all communications between the Respondent, the external investigators and the law firm in relation to the workplace investigation. The Respondent claimed that certain documents were confidential and were subject to legal professional privilege.
One of the categories of documents over which privilege was claimed was documents relating to the investigation of the allegations against the Applicants (investigation documents). The documents included correspondence between the law firm and the external investigators, various documents prepared by the Respondent and the law firm as well as documents and correspondence prepared by the external investigators, including the interview records and investigation report.
The Respondent claimed that the investigation documents were subject to legal professional privilege as they were created for the dominant purpose of obtaining or giving legal advice.
The FWC was required to determine whether:
1. The investigation documents were created for the dominant purpose of obtaining or giving legal advice to the Respondent;
2. If the investigation documents were privileged, the privileged had been waived by the Respondent through its actions.
The Respondent submitted that each of investigation documents was created because it sought legal advice in relation to the bullying complaint, investigating the complaint and potentially taking disciplinary action against the employees involved.
The Applicants claimed that the investigation documents were not privileged as the prevailing purpose of the documents was to determine the allegations and whether disciplinary action could be taken.
The Applicants also submitted obtaining legal advice was ancillary to the workplace investigation. They relied upon other letters issued to them by the Respondent during the investigation process to argue that the dominant purpose of the investigation was to determine whether disciplinary action could be taken and not to seek legal advice.
In determining the claim of legal professional privilege, DP Beaumont considered the principles of legal professional privilege from relevant case law. She noted that the power under section 590 of the FW Act operated subject to legal professional privilege. In particular, that recently in Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons [2021] FWCFB 2623 the Full Bench stated that it did not have the power under section 590(2)(c) of the FW Act to order the production of documents over which legal professional privilege was claimed.
DP Beaumont did not agree with the Applicants’ contentions.
In her view, the only purpose of the investigation and the documents created in connection with the investigation was for the law firm to provide legal advice to the Respondent. For DP Beaumont, this meant that legal professional privilege was directly applicable to the investigation documents.
DP Beaumont did not agree that letters issued to the Applicants during the investigation process demonstrated that legal advice was not the dominant purpose of the investigation documents, finding instead that they did not deviate from this purpose, or were contemplated by the Investigation Protocol document itself.
Accordingly, DP Beaumont found, subject to certain exclusions, that the investigation documents attracted legal professional privilege.
DP Beaumont was also not satisfied that there had been any waiver of privilege.
Lessons for employers
It is not uncommon for employers to conduct workplace investigations internally or engage an external investigation firm to conduct the investigation. In such circumstances, the protection provided by legal professional privilege is not available.
In this matter, the workplace investigation was conducted by an external investigation firm on the instruction of law firm acting on the employer’s instructions for legal advice.
The employer was successfully able to maintain its claim of privilege over the investigation documents as they were created with the dominant purpose of the law firm providing the employer with legal advice.
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