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Perspective

Is it a Privilege to Investigate? The truth about Legal Professional Privilege

Workplace investigations are always confidential, however slapping the phrase “subject to legal professional privilege” over the top of key documents, such as reports and statements, often has a dirty smell when it lands in court, has no utility and causes problems.

Jewlia Holt
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What is LPP and when does it apply?

Workplace investigations are not glamorous and often produce the darkest elements of a business. Such organisational failings undermine the focus of the investigation you are undertaking into employee misbehaviour, provides litigation and reputational risk and interferes into your capacity to affect organisational change without conflict.

LPP assists in protecting the disclosure of confidential communications particularly of these organisational failings between a lawyer and their client to ensure the respondent of the investigation has no knowledge of these problems and cannot leverage them to his or her advantage.

For LPP to apply you must be able to demonstrate:

The communication between the lawyer and their client was confidential; and
For the dominant purpose of obtaining legal advice or for actual or anticipated litigation.
Over the last few years, Australian Courts have been very stringent in the application of LPP and have made it very clear when LPP can apply and when it cannot.

Successful applications of LPP – Separate the Findings!

In workplace investigations it is not uncommon to have findings contained in a LPP report, however, it is important to understand the risks associated with LPP and how to avoid waiving privilege. Waiver occurs where elements of the report are relied upon by people not part of the LPP engagement with the lawyer.

Risk 1 – Reliance on the investigation report

The cases of Bowker v DP World [2014] FWCFB 9227 (Bowker) and Kirman v DP World [2016] FWC 605 (Kirman), successfully demonstrate how to apply LPP, as they did not rely on the investigation report.

In both cases DP World (DP) engaged an external investigator to produce a LPP report into separate allegations of bullying. In Bowker, DP provided a summary document to Mr Bowker which outlined the findings of the investigation report. The FWC held privilege was not waived due to the findings of the report being unrelated to the proceedings and DP did not rely on the report in its defence.

In Kirkman, DP extracted the allegations in the report and gave Mr Kirkman the opportunity to respond to them. The FWC upheld privilege over the report as the purpose of disclosure of the allegations extracted from the report, was to focus on the disciplinary discussion of the allegations in which the investigator sustained and similarly DP did not rely on the contents of the report in its defence.

In both incidences, money, time and litigation risk was involved because the employer failed to have a two-level engagement (dual-engagement). A direct non-privileged engagement with the investigator and LPP with the lawyers engaging the investigator for higher order advice would have overcome all the risks and saved significant costs. If done correctly the LPP advice would never have been seen by the FWC or anyone else. However, when you claim LPP the Court or Tribunal get to see the whole report. After that, it can never be unseen.

Unsuccessful applications of LPP – Goodbye Confidentiality

Risk 2 – Inadvertently revealing the contents of the investigation report

In Petrunic V Q Catering [2019] FCW 1034, the FWC upheld privilege on all documents, except one witness statement. During the course of proceedings a witness was called and was questioned whether he had made any notes of the conduct he engaged in, to which he said no but had given a statement to Q Caterings legal representatives and that the information he provided to the representatives was similar to that he gave to the investigator. The contents of the statement were ‘knowingly and voluntarily disclosed’, therefore waiving privilege.

Here we see two risks. One the habit of statement taking. Why take a statement? It allows the witness to fillet and finesse the evidence, increases cost and complexity. The rule of ‘contemporaneous evidence’ (that a statement taken at the time is truth of what was said) applies equally to notes taken by an investigator as statements. Second, the misuse of LPP. Why not hire the investigator directly? You get your findings without the fight!

Risk 3 – Communication not satisfying the dominant purpose test

In Gaynor King [2018] FWC 6006, the FWC waived privilege over a bullying report, as the report was not obtained for the dominant purpose of providing legal advice, rather it was used to gather facts and ascertain whether Ms King’s allegations could be substantiated, which did not require a lawyer to investigate.

Lessons for employers

  • Once a report is produced, separate the findings or the allegations and only rely on the facts of the allegations substantiated, not the report itself. Reliance upon a report, which you intend to keep confidential, is contradictory with maintaining its secrecy and waives privilege. Do not refer to the report at all. Better still use the ‘dual-engagement’ method to avoid the problems entirely.
  • Ensure everyone involved (including third parties) understands the importance of upholding confidentiality and legal professional privilege and how to do so. Always have those who are privy to the report sign a LPP Protocol.
  • Before you engage lawyers, ensure you engage them for the dominant purpose of obtaining legal advice or for actual or anticipated litigation, not to run your investigation and simply supply you with the findings.
  • Do not rely on a LPP investigation report in court proceedings as privilege is likely to be waived.
Jewlia Holt
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