Employers often seek assistance or advice from their lawyers when a sufficiently serious workplace complaint (such as fraud, sexual harassment or bullying) is made. Lawyers may be asked to conduct an investigation into the allegations and prepare a “Confidential and Privileged” report for the employer, the findings of which may be used later in a disciplinary process.
What happens when a dismissed employee seeks access to the report?
This issue was considered by the Fair Work Commission (the Commission) in Kirkman v DP World Melbourne Ltd [2016] FWC 605 (Kirkman decision)
Mr Kirkman lodged an unfair dismissal application following the termination of his employment by DP World together with application that DP World produce unredacted documents to the Commission, one of which included an investigation report prepared by a HR consultant (external report). DP World objected to the production of the external report on the basis that it was subject to legal professional privilege.
The first instance decision to decline the application was quashed on appeal to the Full Bench and the issue of whether the external report was subject to privilege was remitted to be determined by a single member.
In the Kirkman decision DP World maintained that the external report was privileged: it was prepared by the HR consultant on instructions of DP World’s lawyers and was in relation to bullying complaints made about Mr Kirkman. It also submitted that the external report was not relevant to DP World’s decision to terminate Mr Kirkman’s employment as a separate internal investigation was also conducted.
Mr Kirkman claimed that the external report would have been prepared in regardless of the intention to obtain legal advice. In this way, the dominant purpose of the external report was for DP World to obtain a factual report so that factual findings could be put to him, rather than for the lawyers to provide legal advice to DP World. Mr Kirkman also claimed that DP World waived privilege when it put the bullying allegations to him and disclosed the external report’s contents in a disciplinary letter to him. This letter stated that the allegations were substantiated by the investigation conducted.
Deputy President Kovacic noted that the Full Bench had already determined that the documents were related to Mr Kirkman’s unfair dismissal application. He also held that it was clear that the dominant purpose of the external report was for DP World’s lawyers to provide legal advice to DP World.
In relation to whether privilege over the external report was waived, DP Kovacic noted that the disclosures were for the purpose of preparing the report itself and in the show cause process, to put the substantiated allegations to Mr Kirkman so that he had an opportunity to provide a response. In these circumstances, privilege was not waived by DP World and accordingly, the external report was not to be accessed by Mr Kirkman.
The Kirkman decision highlights the importance of employers making sure they do not inadvertently waive legal privilege over a document during a disciplinary or termination process. Employers should always seek legal advice before referring to or relying on an otherwise privileged report.
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