Last year we published a post which highlighted that employers need to undertake proper and reasonable investigations before terminating employees and that, if reasonable, HR Managers can be held personally responsible for any unlawful or unfair termination decisions.
Perhaps as a result of the increasing personal exposure of HR Managers, throughout last year, we were instructed to undertake more investigations than we have in previous years. This has highlighted the benefit of “legal professional privilege” during the investigation process.
Legal professional privilege applies to confidential communications between a client and their legal advisers which comes into existence for the dominant purpose of providing legal advice or for use in litigation. A party is usually not required to disclose any communication which is covered by legal professional privilege to any third party or as part of any court proceedings.
When you are considering the investigation process, legal professional privilege is one of the benefits you should think about when deciding whether to engage a lawyer to conduct the entire investigation, instead of undertaking the investigation yourself or directly engaging an external investigator.
If a lawyer is engaged to conduct the entire investigation, or a lawyer directly engages an external investigator, it is often the case that documents (including investigation reports) created during this process will be protected by legal professional privilege (click here for an example of this). This means that, for example, where an investigation report reveals adverse findings against an employer, such as company policies not being followed, employers may be protected from revealing this in court proceedings or to a third party. This also means that witness statements and the reasons supporting any outcome may not have to be disclosed.
Extreme care must be taken, however, to ensure that investigation reports, or any other investigation documents, only come into existence for the dominant purpose of obtaining legal advice, and not simply that legal advice is sought in relation to an investigation report already prepared by the employer or a third party.
This was demonstrated in a recent Fair Work Commission decision which confirmed that some of the documents prepared as part of an investigation (undertaken by the employer), which were provided to lawyers for advice, were not protected by privilege, as they did not come into existence for the dominant purpose of seeking legal advice. Rather, the Court held that the dominant purpose for the creation of the documents was for the purpose of the disciplinary investigation being carried out by the employer directly. This meant that the employer was required to disclose documents such as investigation summaries and communications between the employer and witnesses.
In order to not only afford a fair and reasonable process to all relevant parties, but also to maximise an employer’s position, investigations need to be handled correctly and with care to ensure all necessary steps have been followed. If you are unsure of what to do, or need advice on your next steps, do not hesitate to get in touch with us. Remember, prevention is better than cure!