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Legal Professional Privilege – Workplace investigation


If a legal firm conducts a workplace investigation, does that investigation attract legal professional privilege?

The Fair Work Commission recently considered this matter in Gaynor King [2018] FWC 6006 (26 September 2018).

This matter related to allegations of bullying in the City of Darwin (Council). The Council retained Minter Ellison to conduct the investigation into the allegations. The investigation substantiated allegations of “inappropriate conduct” by various parties.

There was an argument relating to the production of the investigation report to the Fair Work Commission. The Council argued the report was subject to legal professional privilege because the dominant purpose was to obtain legal advice or legal services in relation to a proceeding.

Commissioner Wilson highlighted the mere fact that a law firm conducted the investigation did not attract legal professional privilege. He stated the focus of the investigation and subsequent report was on the allegations raised by the complainant. It was an investigation into workplace conduct in accordance with the Council’s policies/procedures.

Commissioner Wilson determined the predominant purpose of the investigation was to inquire into the complaints made by the employee. It was to “test” if the code was breached and if so, hold the transgressors to account.

He further determined the investigation report was not covered by legal professional privilege and was required to be produced before the Commission. #investigation #legal_professional_privilege 




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