Worker refuses to attend investigation
The Case
Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons (2021)
Damien Stephen was the operations manager at Seahill Enterprises Pty Ltd (Seahill Enterprises). In September 2020, Mr Stephen made an application for a stop bullying order in the Fair Work Commission (FWC) against the director and owner of Seahill Enterprises, Denise Fitzgibbons.
Seahill Enterprises engaged Barrister Arron Hartnett to conduct a workplace investigation into Mr Stephen’s allegations to provide advice to Seahill Enterprises about the litigation. As part of that investigation, Mr Stephen was directed to attend an interview with Mr Hartnett. Mr Stephen refused to attend.
As part of the stop bullying proceedings, Mr Stephen sought an order that Mr Hartnett produce all documents involved in the investigation. Seahill Enterprise objected, claiming such documents were protected by legal professional privilege.
The Verdict
The matter was heard at first instance in the FWC and thereafter appealed to the Full Bench of the FWC.
The Full Bench held:
- the investigation documents were privileged as the ‘dominant purpose’ of the investigation was to provide legal advice to Seahill Enterprises about the merits of Mr Stephen’s stop bullying application;
- the direction for Mr Stephen to be interviewed by Mr Hartnett was neither lawful nor reasonable, as it may prejudice his stop bullying application; and
- the direction to Mr Stephen may have been lawful and reasonable if Mr Hartnett had been engaged to conduct an independent investigation.
The Lessons
Workplace investigations can be protected by legal professional privilege, where the ‘dominant purpose’ is to provide legal advice. A direction to an employee to attend an investigation interview will not be lawful and reasonable if the purpose of the investigation is to provide legal advice to an employer about litigation commenced by that employee.
Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.
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