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When is legal professional privilege lost?

When an employer arranges for an investigation of allegations of workplace bullying, it may seek to claim that the documents relating to the investigation are subject to legal professional privilege (LPP).

LPP applies to:

  • confidential written and oral communications between a lawyer and a client, or between lawyers acting for a client;
  • the contents of a confidential communication prepared by the lawyer, client, or another person, for the dominant purpose of the lawyer(s) providing legal advice to the client;
  • confidential communication between a client and another person, or the client’s lawyer and another person; and
  • the contents of a confidential document prepared for the dominant purpose of the client being provided with professional legal services relating to a current, anticipated or pending Australian or overseas legal proceeding in which the client is, was or may be, a party.

LLP means the advice of the lawyer to the client is protected from disclosure as evidence in any legal proceeding, along with any communication or document passing from the client to the lawyer (such as the request for advice or a set of factual instructions) for the purpose of the provision of the legal advice.

LPP is a right belonging to the client, not the lawyer or any relevant third party. It only protects confidential communications. If confidentiality is not maintained, LPP may be lost.

In Stephen v Seahill Enterprises and Fitzgibbons (2021), the Fair Work Commission (FWC) dealt with an objection to production of documents relating to an investigation of bullying on the basis that the documents were subject to LPP.

The FWC ruled that the correspondence commissioning the investigation was subject to LPP, but not the documents created later, including the investigation report. According to the FWC, LPP was lost when the employer represented to the employee that the investigation was required by the FWC and the employer’s policy. These representations were misleading, but if true, it could not have been intended to be confidential because the FWC would be informed of the outcomes of the investigation. Similarly, if the investigation were being conducted pursuant to the employer’s policy (which required procedural fairness), the outcome would need to be conveyed to relevant employees in the workplace so that necessary corrective or disciplinary action could be taken.

The FWC was critical that the employer made the misleading representation to the employee who made the bullying allegations that he would be dismissed if he didn’t submit to an interview by the investigator.

The FWC observed: “We do not consider [the employer] could, pursuant to its employment contract with [the employee], issue him a binding direction to assist its lawyers in providing it with legal advice concerning its defence of litigation which [the employee] had himself initiated. A direction of this nature would not be lawful or reasonable, since the contemplated compulsory interview would amount to an extra-curial interrogatory or deposition process under which [the employee] could be required, contrary to his legal interests in the litigation, to make admissions or to disclose confidential information in an unprotected way. It was obviously convenient for [the employer] to mischaracterise the dominant purpose of the investigation in a way which provided a proper foundation for the direction to attend the interview.

“It may be accepted that if the purpose of the engagement of [the investigator] by [the employer] was to conduct a fair, independent and transparent investigation … then it would have been lawful and reasonable to direct that [the employee] undergo an interview for the purpose of that investigation. However, as we have earlier found, the engagement of [the investigator] was not for that purpose.”

The FWC ruled the employer had waived LPP in respect of the investigation documents created following the appointment of the investigator.

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