Procedural fairness is one of the factors that the Fair Work Commission will take into consideration when deciding if a dismissal has been harsh, unjust or unreasonable under the Fair Work Act 2009 (Cth). Procedural fairness is concerned with the decision making process followed by a decision maker when deciding whether to take disciplinary action against an employee. Thus, the way in which a workplace investigation is conducted, forms part of the procedural elements that are assessed.
In order to conduct a successful workplace investigation, which is procedurally fair, the employer must ensure they have followed their own procedures when deciding to dismiss an employee, they must allow the employee an opportunity to explain their side of the story and they cannot refuse an employee seeking advice or having a support person available at any meetings. The employer must not skip or rush any part of the process or workplace investigation and they must not form an early view about the employee’s guilt or innocence.
Accordingly, it is not uncommon that employer’s conduct investigations and have written records and documents pertaining to this. Although employees may not have a right to peruse this documents during the investigative procedure and upon termination, the question then arises whether these documents can be submitted as part of an unfair dismissal proceeding in the Fair Work Commission.
Fair Work Commission Powers To Compel Production of Documents
The Fair Work Commission (FWC) has a broad power under section 590 of the Fair Work Act 2009 (Cth) to “inform itself in relation to any manner before it in such manner as it considers appropriate”. Under this general power, the FWC may inform itself by requiring the production of documents or records to the Fair Work Commission, such as all documents or records relating to a dismissal process. These types of orders will often require producing parties to consider whether the documents required to be produced are confidential or subject to privilege.
The onus falls on the party claiming legal privilege to demonstrate that the documents were created for the purpose of providing legal advice or for use in legal proceedings. If the claim is successful, the documents will not have to be disclosed to the other party and conversely, if the claim is not successful then the other party will have access to the documents.
This is notwithstanding that s 591 provides that the Fair work Commission is not bound by the rules of evidence and procedure. Legal professional privilege is however not merely a rule of evidence, although given statutory articulation in Pt 3-10 Div 1 of the Evidence Act 1995 (Cth); it is a rule of substantive law and an important common law immunity which may not be abrogated by statute except by clear words or by necessary implication.
FWC Rules Investigation Documents Attract Legal Professional Privilege
In the unfair dismissal case of Tainsh and Willner v Co-Operative Bulk Handling Ltd, the FWC recently ruled upon a claim of legal professional privilege over documents that an employer and its external investigators were ordered to produce as part of an unfair dismissal proceeding. Two employees had been dismissed from their respective positions in the employer’s maintenance team, having had an allegation of workplace bullying directed against them concerning their conduct toward an apprentice or apprentices. On receipt of the workplace bullying grievance, the employer engaged Minter Ellison, a firm of lawyers, to undertake an investigation into the complaints.
The employer argued that certain categories of the documents filed with the Commission are, on record, confidential communications that are protected from production to the Commission by legal professional privilege. These documents were investigation and disciplinary documents and whilst the employees accept accepted the privilege claim with respect to the disciplinary documents, the issue remained concerning the investigation documents.
In Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons, unfair dismissal case, the Full Bench of the Fair Work Commission expressed that the Commission is not empowered under s 590(2)(c) of the Fair Work Act 2009 (Cth), to issue orders requiring the production of the documents containing communications which are subject to legal professional privilege where the person to whom the privilege belongs objects to the production of the document. The Full Bench of the Fair Work Commission described two limbs of legal professional privilege.
The first, the legal advice limb, is relevant to the application on foot. Under the legal advice limb of legal professional privilege, a communication will attract privilege if it was brought into existence for the dominant purpose of giving or obtaining legal advice. The Full Bench explained that this type of privilege applies to confidential written and oral communications between a lawyer and a client or between lawyers acting for a client, or the contents of a confidential communication prepared by the lawyer, the client, or another person, for the dominant purpose of the lawyer(s) providing legal advice to the client.
In Tainsh and Willner v Co-Operative Bulk Handling Ltd, Deputy President Beaumont of the Fair Work Commission, held whilst the documents attract privilege, there are exclusions that the Commission can rely upon. Deputy President Beaumont of the Fair Work Commission did not consider that there was disconnect between what was told to the employees and what was happening between Minter Ellison, the independent investigators, and the employer, such that unfairness would justify a finding of waiver in these circumstances.
An investigation carried out under employers’ procedure may or may not be privileged,
depending on the purpose for which that particular investigation has been commissioned. In this case, Deputy President Beaumont of the Fair Work Commission, held it was. However, the Procedure is silent on the point. Further, Deputy President Beaumont of the Fair Work Commission noted that it was communicated to the employees that the interviews with the independent investigator were not disciplinary interviews.
Thus, Deputy President Beaumont of the Fair Work Commission held that the only purpose of the investigation and the documents created in connection with the investigation was for the law firm to provide legal advice to the Respondent. For Deputy President Beaumont of the Fair Work Commission, this meant that legal professional privilege was directly applicable to the investigation documents. Deputy President Beaumont of the Fair Work Commission did not agree that letters issued to the Applicants during the investigation process demonstrated that legal advice was not the dominant purpose of the investigation documents, finding instead that they did not deviate from this purpose, or were contemplated by the employer’s Investigation Protocol document itself.
Accordingly, Deputy President Beaumont of the Fair Work Commission found, subject to certain exclusions, that the investigation documents attracted legal professional privilege. Deputy President Beaumont of the Fair Work Commission Beaumont was also not satisfied that there had been any waiver of privilege.
In this case, the workplace investigation was conducted by an external investigation firm on the instruction of law firm acting on the employer’s instructions for legal advice. The employer was successfully able to maintain its claim of privilege over the investigation documents as they were created with the dominant purpose of the law firm providing the employer with legal advice.
As you can see from the above unfair dismissals, general protections, and the processes that sit behind the applications / claims can get quite complicated. I’m pointing this out not to discourage you from your claim but to keep you informed. If you have any questions queries, give us at A Whole New Approach a call, its free. 1800 333 666
 Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552 -; Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons  FWCFB 2623 .
  FWC 3381.
  FWCFB 2623 .
 Ibid .
 Esso Australia Resources Limited v Commissioner of Taxation (1999) 201 CLR 49 at 64-65 ; Daniels Corporations International Pty Ltd v Australian Competition & Consumer Commission (2002) 213 CLR 543 at 552 .
 Damien Stephen v Seahill Enterprises Pty Ltd & Denise Fitzgibbons  FWCFB 2623 .
  FWC 3381.