A recent decision of the Fair Work Commission (FWC) has confirmed that using a law firm to conduct a workplace investigation does not mean that the employer can keep the investigation secret through using legal professional privilege.
An employer has been required to provide the FWC with a copy of the investigation report even though it was conducted by a law frim and the employer sought to apply legal professional privilege. Unsurprisingly, the FWC found that the investigation report did not fit within the scope of legal professional privilege as it had not been prepared for the dominant purpose of providing legal advice.
An employer who wants to protect their interests is better served by ensuring that any investigations are conducted appropriately and by an experienced and skilled investigator. If the focus is on the quality of the investigation and the competence of the investigator, the outcome will be sound and an employer will not need to hide it. Every workplace investigation should be an independent and objective process to establish the facts. To approach a workplace investigation in any other way undermines the integrity of the process, the employer and the investigator. A workplace investigation which lacks complete integrity and independence will not stand up to scrutiny and will only make matters in the workplace more complex and divisive.
Mazars HR are recognised experts in conducting workplace investigations on behalf of clients. We bring to the process decades of experience in undertaking workplace investigations, as well as the honour of having trained and mentored many leading workplace investigators. If we can assist your business manage a difficult situation please contact us on 3218 3919 or mazarshr@mazars.com.au
Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.
