Fair Work ruling clarifies legal professional privilege for workplace investigations
- Feb 9
- 3 min read
Updated: Mar 2
Why engaging a lawyer no longer guarantees confidentiality
A 2025 decision of the Fair Work Commission (FWC) confirmed that legal professional privilege depends on the purpose of a workplace investigation, not who conducts it. Simply appointing a law firm does not make an investigation report confidential.
What is legal professional privilege?
Legal professional privilege (also known as client legal privilege) protects confidential communications between lawyers and clients from mandatory disclosure in court.
Privilege applies where documents are created for the dominant purpose of obtaining legal advice or preparing for litigation. It exists so organisations can speak openly with lawyers. However, it only applies where legal advice, not HR decision-making, is the main reason the document exists.
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 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.
The Commission looks closely at the real-world purpose of the investigation. If the report helps an employer decide what happened and what action to take, it is unlikely to be privileged, even if lawyers wrote it.
About the case
In James Crafti v Cohealth Ltd [2025] FWC 3285, the Commission examined whether an investigation conducted by external lawyers was protected by privilege.
The employer argued the report should remain confidential because lawyers prepared it. The Commission disagreed.
It found that the investigation’s dominant purpose was to determine workplace facts and inform disciplinary decisions, not to provide legal advice. As a result, the report was not protected by privilege and could be relied upon in the proceedings.
What this means for employers
A fair, independent and well-structured investigation remains the strongest protection for employers.
For many years, organisations assumed engaging a law firm provided a safe way to keep investigation findings confidential. The Crafti decision reinforces that this assumption is risky.
When assessing privilege, the Commission will examine:
why the investigator was engaged
how the report was used
whether it informed disciplinary decisions
whether it was shared operationally
If a report functions as an HR management tool, privilege may not apply.
This has important implications for employers managing workplace conflict or misconduct matters.
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 unfair dismissal and general protections matters, tribunals focus on whether the investigation was fair, unbiased and evidence-based, not whether the report was confidential.
A strong process is usually a better risk control than relying on privilege.
The dominant purpose test in practice
Privilege is more likely to apply where:
lawyers are engaged specifically to provide legal advice
the report is created for that advice
the findings are not used as the main disciplinary decision document
Privilege is less likely where:
the investigation fulfils policy obligations
the findings guide internal management decisions
the report is shared with multiple stakeholders
the employer relies on the findings to justify termination
This is why many lawyer-led investigations still end up being disclosable.
When an independent investigator may be the better option
Employers often benefit from an external investigator rather than a law firm where:
independence is critical to credibility
the matter involves senior staff
procedural fairness will be scrutinised
unions or regulators may review the process
the organisation needs a defensible factual report
In these situations, the key protection is a robust investigation, not privilege.
When engaging lawyers may still be appropriate
A lawyer-led investigation can be useful where:
litigation is already underway
legal advice must be integrated into findings
statutory interpretation is complex
regulatory exposure is high
Even then, the Crafti decision shows privilege cannot be assumed.
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 if and 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.
