– Can Legal Professional Privilege Apply?
Conducting a workplace investigation can be a lengthy and stressful process. Not many people enjoy them and tensions can be high among the participants.
These investigations are generally confidential, however, can they be protected even further from potential disclosure?
What is Legal Professional Privilege (LPP)?
LPP is a fundamental legal principle that protects communications between a client and their legal advisor from disclosure without the client’s consent. This privilege encourages open and honest communication. While traditionally associated with litigation, its application in the context of workplace investigations is being increasingly recognised.
When can LPP apply?
It is important to avoid waiving privilege. For LPP to apply you must be able to demonstrate:
- The communication between the lawyer and their client was confidential; and
- The communication was for the dominate purpose of obtaining legal advice or for actual or anticipated litigation.
When has LLP applied during investigations?
Engage external investigators
In the Peter Tainsh and Markus Wellner v Co-Operative Bulk Handling Ltd [2021] FWC 3381 case, it became clear that bringing in external investigators for workplace issues can be a smart move, especially when legal advice might be needed or if legal actions are looming.
The Fair Work Commission found that when companies use legal representatives for these investigations and meet certain conditions, they can keep documents produced during the investigation under legal professional privilege.
In this case it was held that the investigation documents and report prepared by the law firm attracted legal professional privilege as they came into existence for the dominant purpose of enabling advice to be provided to the Respondent about the workplace bullying complaint that it had received.
In Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons (Stephens), [2021] FWCFB 2623 it was held that where the purpose of the investigation is to assist with the provision of legal advice, which potentially went to the conduct of anti-bullying proceedings, legal professional privilege was applicable. However, it was noted that for the privilege to attach to the investigation, this needed to be the subject of a brief to the legal practitioner from the outset.
Key message for Employers
Effective workplace investigations can successfully resolve a variety of employment matters, including disciplinary issues. The benefits that arise when legal practitioners are engaged to conduct investigations are two-fold:
- First, the investigation is conducted independently without any prior knowledge, bias, perceived bias, or relationship with the relevant parties.
- Secondly, documents produced through the course of the investigation may then be subject to legal professional privilege should the matter proceed to litigation.
Employers should always seek advice when unsure about initiating workplace investigations. For more specific information on any of the material contained in this article please contact the Employment Law team at [email protected]
Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to change. You should seek independent legal advice before embarking upon any course of action.
