By Michal Roucek and Bethany Silverman

From our experience working with Australian businesses, many have encountered a workplace incident at some point, scaling from good to ridiculous to the most serious types of misconduct. Our advice when an incident occurs; in most cases, it is wise that employers conduct a thorough workplace investigation.

It’s common for employers to engage external lawyers or consultants to assist with the process, particularly where complex factual situations are present. However, a recent decision of the Fair Work Commission (FWC), Peter Tainsh and Markus Willner v Co-Operative Bulk Handling Ltd [2021] FWC 3381, has reemphasised the importance of ensuring that where consultants are engaged and an employer seeks the protection of client legal privilege over the investigation and documents associated with it, that a solicitor engages the consultant for the dominant purpose of providing legal advice to its client.

Let’s take a closer look at the above-mentioned case and the decision…

The case

In this case, Tainsh and Willner, two employees alleged they had been unfairly dismissed following allegations of bullying raised against the men by several apprentices. Upon receipt of the allegations, the company identified the need to undertake an investigation and engaged the services of a law firm to provide advice on the matter. Subsequently, the law firm engaged workplace investigation consultants to carry the investigation out. The allegations were substantiated, and the employees were dismissed.

As part of the applications for unfair dismissal, the employees attempted to gain access to the investigation documents to inform their argument that they had been unfairly dismissed.  The workers argued that the documents, specifically those entitled “Suspension from work with pay and particulars of allegations” demonstrated that the dominant purpose of the investigation was to inquire into the allegations and assess if they were substantiated. The findings of the investigation would then be used to inform disciplinary decisions.

The employer argued that the purpose of the documents, including the investigation report, interview records, emails and the investigation protocol were to obtain legal advice in respect to the disciplinary process.

The employees asserted that even if the purpose of the investigation was to seek legal advice, the letters conveyed a preliminary view to dismiss them, and therefore indicated the investigation process fed into the disciplinary proceedings and therefore negated the possibility that the dominant purpose of the documents was to seek legal advice.

The FWC however, did not agree with this contention, finding that the purpose of the investigation, as provided in the protocol document was to:

  • Obtain more information about the allegations;
  • Find out whether they would breach the company’s policies;
  • Get the workers’ responses; and
  • Make factual findings as to the allegations to allow the firm to provide the company with legal advice.

The decision

The FWC concluded that the documents were created for the purpose of a solicitor providing legal advice regarding the complaint, and therefore, they were protected by legal privilege.

The decision reconfirms that documents relating to a workplace investigation conducted by a non-lawyer consultant are privileged where the consultant is engaged by a solicitor on behalf of its client for the purpose of the client obtaining legal advice.

If this is done, it is possible to shield communications and documentation between the business and the consultant from being discovered, if the communications relate to the lawyers providing legal advice, as to the employment of an employee including potential disciplinary action.

Another way to ensure that privilege exists, is to request a solicitor to conduct the workplace investigation.

If you have any questions about the above article, please contact the team at HR Assured.

For HR Assured clients, contact our 24/7 Telephone Advisory Service.

If you’re not an HR Assured client and need some advice, the team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.

Michal Roucek is a Senior Associate at FCB Group (HR Assured’s parent company). Michal’s experience extends across all aspects of employment relations and has worked with many clients from various industries including financial services, manufacturing, building and construction, human services including children’s services and educational services at all levels, pharmaceutical, real estate, healthcare, transport, logistics, recycling, correctional services and agricultural sectors.

Bethany Silverman is a Solicitor at FCB Group and HR Assured. She regularly provides advice to a wide range of businesses in respect of compliance with workplace laws and managing complex matters including disciplinary and performance management processes and terminations.