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Can Legal Privilege protect the confidentiality of an investigation report?

Thursday, April 13, 2017

Who should have access to an Investigation Report and can ‘Legal Privilege’ protect the confidentiality of an investigation report?

It is important to be mindful during a workplace investigation of who has access to the investigation report. We have been asked by many clients over the years for advice in relation to the extent to which a report should be shared within the business.

Should the Complainant and Respondent be provided with a copy of the report?

We strongly advocate that a report is shared only with those who have a responsibility to make decisions arising from the report. Why?

Firstly, to maintain confidentiality as far as possible for all parties to the investigation. Secondly, to protect the integrity of your organisations complaint/grievance process.

If reports are more broadly shared, it could have negative consequences for future investigations. Perception that confidentiality is not maintained could see complainants being reluctant to raise a complaint via your internal complaint/grievance process. Witnesses may refuse to participate or severely limit their evidence, having an adverse impact on the investigation process and outcome.

It is essential that complainants and respondents are provided with feedback regarding the findings of an investigation and it is confirmed to them in writing, however they are not required to be provided with a copy of the report unless your organisations policy or procedure specify this requirement.

A recent case heard in the Fair Work Commission highlights an example of where an employee terminated for bullying requested access to an investigation report as part of an unfair dismissal claim. The employer refused on the grounds of Legal Professional Privilege.

What is Legal Privilege?

Legal professional privilege is a rule protecting the disclosure of communications between a lawyer and their client when in the process of providing legal advice.

The case of Kirkman v DP World Melbourne Limited [2016] FWC 605 highlights that when legal privilege is effectively established and maintained the confidentiality of internal documents and advice can be protected from disclosure.

The employer received a complaint of bullying and instructed their lawyers to engage an independent investigator who investigated the complaint and prepared a report on the findings. The claim of bullying was substantiated.

Six months later the employee was dismissed. He filed an unfair dismissal claim requesting a copy of the investigation report and several associated documents to assist his claim. The employer refused, stating the report was legally privileged and the employee disputed the decision.

In this case legal privilege was upheld and the employer was entitled to refuse to provide access to the investigation report on the basis that;

  • the investigator was engaged by the employer’s lawyers to assist in preparing advice for the employer;
  • the investigators communications were only directed to the lawyers, not the business;
  • document control was strictly established and maintained;
  • the report was marked private and confidential; and
  • the employer had not expressly or impliedly waived privilege over the document, partial disclosure for use in disciplinary discussions in relation to the allegations was permitted.

Interestingly, it was also noted that this was not a case in which the documents were required to be disclosed so that the employee could understand the nature of the allegations of misconduct put against him.The allegations were clearly put to the respondent in writing in the course of the investigation.