A limitation on employer power to direct employees to attend an interview

Workplace investigations and legal professional privilege 3 min read

An employer did not have the power to direct an employee to attend an interview for a workplace investigation (where the interview would assist the employer in relation to defending litigation which the employee had initiated), but successfully maintained a claim of legal professional privilege over the investigation materials despite 'misleading' the employee as to the purpose of the investigation.

How does this affect you?

• This decision¹ confirms that workplace investigations can be protected by legal professional privilege, but only where the 'dominant purpose' test is met.
• While employers can generally issue a lawful and reasonable direction to an employee to attend an interview as part of an investigation, this may not be the case where the actual purpose of the investigation is for the employer to obtain legal advice about litigation the employee has commenced against it.

Background

In September 2020, Damien Stephen applied to the Fair Work Commission (FWC) for a 'stop bullying' order (the application) against Denise Fitzgibbons, the sole director and owner of Mr Stephen's employer, Seahill Enterprises Pty Ltd (Seahill).

In November 2020, Seahill engaged barrister Arron Hartnett to conduct a workplace investigation into Mr Stephen's allegations so that Mr Hartnett could provide Seahill with legal advice about the application.

To enable Mr Hartnett to conduct his investigation, Seahill (through its solicitors and an HR consultancy) directed Mr Stephen to attend an interview with Mr Hartnett. Mr Stephen resisted this and, in the communications which followed, Seahill informed Mr Stephen that the purpose of the investigation was to:

• independently investigate his allegations;
• comply with a direction of the FWC in relation to the application (which had been adjourned in light of the investigation being undertaken); and
• comply with Seahill's work health and safety obligations,

(jointly, the Purpose Communications).

In February 2021, as part of the application, Mr Stephen sought the production of all documents relating to Mr Hartnett's investigation. Seahill claimed the documents were protected by legal professional privilege.

At first instance and on appeal the FWC agreed with Seahill. The documents were privileged as the 'dominant purpose' of Mr Hartnett's investigation was to provide advice to Seahill about the application.

The Full Bench labelled the Purpose Communications as 'misleading' and said they 'were made disingenuously for the purpose of justifying the purported employment direction' to Mr Stephen requiring his participation in the interview with Mr Hartnett. Such a direction would not be 'lawful or reasonable' as it would require Mr Stephen to make admissions or disclose confidential information contrary to his interests in the application.

However, the Full Bench confirmed that if the actual purpose of the engagement of Mr Barnett had instead been to conduct a fair, independent and transparent investigation, such a direction would be lawful and reasonable.