Fair Work ruling on legal professional privilege for workplace investigations
- WorkPlacePLUS
- 2 days ago
- 2 min read
What is legal professional privilege?
Legal professional privilege (also known as client professional privilege) protects confidential communications between lawyers and clients from mandatory disclosure in court.
What’s changed?
In the past, the main reason an employer might engage an external law firm to conduct workplace investigations was for the legal privilege. The assumption was that employers could withhold workplace investigation reports prepared by lawyers.
A recent decision by the Fair Work Commission (FWC) has challenged that assumption and changed the way legal privilege operates. Now simply appointing a legal firm does not guarantee that the investigation report is protected by legal privilege.
What this means for employers
The FWC ruling has important implications for employers managing workplace conflict such as complaints or misconduct.
Employers need to be clear about how and why an investigation is being conducted, and how the findings may ultimately be used. If the primary purpose is fact-finding or meeting internal policy obligations, rather than obtaining legal advice, legal privilege may not apply.
In most cases, the most important consideration for employers is whether the workplace investigation is independent, procedurally fair, timely and defensible, not whether legal privilege applies.
What’s a cost-effective solution for investigating workplace issues?
Engaging a law firm to investigate workplace issues can be extremely costly, particularly where legal privilege is uncertain.
WorkPlacePLUS conducts independent workplace investigations using evidence based principles. The final WorkPlacePLUS investigation reports are developed to a high standard and can be used for external parties such as the courts, WorkCover authorities and unions when required.
Our accredited workplace investigators are also experienced HR professionals who understand employer obligations, risk management and procedural fairness.
For support managing workplace conflict, please contact WorkPlacePLUS today.
