Employers commonly engage external third parties to conduct investigations into allegations of inappropriate workplace conduct. Can the employer claim legal privilege over the report?

In a recent Fair Work Commission decision, Mr Kirkman was sacked for inappropriate workplace conduct and filed an unfair dismissal claim. During the proceedings, he tried to get his hands on the independent investigation report that his employer, DP World Melbourne, had relied upon.

DP World Melbourne refused to hand over the report and said it was covered by legal privilege. The independent investigator had been engaged by DP World Melbourne's external lawyers.

Critically, the letter of engagement from those lawyers to the investigator clearly indicated that the purpose of the investigation and report was to “assist in the preparation of legal advice” to DP World Melbourne. It was also important that the final investigation report was marked “privileged and confidential”. These factors satisfied the Commission that the investigation report satisfied the “dominant purpose” test for establishing legal privilege.

Would the same result have been achieved if DP World Melbourne engaged the investigator directly, and said in the letter of engagement that it was for the purpose of enabling DP World Melbourne to obtain legal advice? Probably. But based on this decision, getting the lawyers to make the request put the question beyond doubt.