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Vicarious liability and applying legal professional privilege to council’s workplace investigations

11 December 2023

#Workplace Relations & Safety, #Local Government

Vicarious liability and applying legal professional privilege to council’s workplace investigations

While the repercussions of the alleged sexual assault of a Federal Government employee continue to make its way through the civil courts, the legislation that the Ministerial staffer’s experience inspired is now in force across Australia.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 included new vicarious liability provisions meaning a worker can seek a remedy from their organisation, in addition to the alleged offender, where the organisation did not take all reasonable steps to prevent the sexual harassment. While local government employees are not covered by the Fair Work Act 2009, issues such as sexual harassment, vilification and victimisation are prohibited in the Anti-Discrimination Act 1991 (Qld). The Industrial Relations Act 2016 (Qld) also provides for a general protection from workplace discrimination and gives the Queensland Industrial Relations Commission (QIRC) exclusive jurisdiction to hear work-related matters under the Anti-Discrimination Act 1991.

This year in Queensland, we also saw the introduction of the Managing the risk of psychosocial hazards at work Code of Practice 2022 (Code), which places a new onus on employers to identify psychosocial hazards and risks and to control or manage those risks as far as is reasonably practical.

These changes, and the increased public awareness of issues such as sexual harassment, mean that local governments will increasingly be the target of civil claims of vicarious liability for incidences of sexual harassment against individual employees. If workplace investigations and reports are generally available to complainants, that could mean council would be essentially gathering the evidence that would later be used against them in a civil claim.

Legal professional privilege

The doctrine of legal professional privilege (LPP) is a common law rule that evolved to protect lawyer client communications from disclosure. LPP protects a person from being compelled to produce documents or give information that would reveal communications between a client and their lawyer, made for the dominant purpose of obtaining or providing legal advice, or for providing legal services, including representation in pending or expected legal proceedings.

The rules of procedural fairness dictate that the subject officer of a workplace investigation in local government is entitled to receive a copy of the investigation report and to see and respond to the evidence against them. However, it does not immediately follow that this investigation report or the findings should be available to the complainant, or be admissible as evidence in a civil claim against the employer.

It is common practice for practitioners when acting for employers in defence of a prosecution under the Work Health Safety Act (Qld) 2011, to ensure that any internal investigations into incidents are covered by LPP. This is not something that is normally considered during a ‘common’ workplace investigation into alleged misconduct.

There are complicated pre-trial procedures and numerous ways a litigant can challenge a claim of LPP, and it is not clear that efforts to maintain LPP over an investigation report concerning disciplinary action against a council employee would succeed. However, in an era in which we see large amounts of compensation being awarded to the victims of sexual harassment, there are some simple things local government employers and their legal practitioners can do to attempt to minimise the exposure of councils by establishing and maintaining LPP over internal investigations.

The basics

Privilege will only attach to confidential communications between a legal adviser and a client where:

  • the advice is provided by the legal adviser as a professional legal adviser
  • the legal adviser is appropriately qualified and independent.

In the case of local government workplace investigations, these two basic requirements can make it extremely difficult for LPP to be established. When councils are using in-house lawyers to conduct an investigation they wish to claim privilege over, careful consideration should be given to the role and independence of the in-house lawyer. At a minimum the lawyer should hold a current practising certificate. Councils should also ensure that position descriptions and titles for in-house lawyers reflect that they are engaged by council to perform the work of a lawyer. Positions (or at least position descriptions) in which the lawyer holds a variety of roles should be avoided as far as is possible. It should be clear that the first duty of an in-house lawyer is to the court over and above their duty to the council as their employer.

Internal procedures for requesting ‘advice’ from legal officers (as workplace investigators) should be established that essentially mirror a similar request to an external legal practitioner. For LPP to succeed, the dominant purpose of the investigation must be for use in, or preparing for existing or reasonably anticipated legal proceedings, or for giving or obtaining legal advice.

While it may seem impossible to prove that a disciplinary investigation was conducted for this purpose by a council, it is possible that it can be achieved. In Bowker v DP World Melbourne Ltd [2019] FWC 7887, it was argued that investigation documents into allegations of bullying would have come into existence irrespective of obtaining legal advice due to the operation of a workplace policy. In that case Deputy President Gostencnik stated that it was possible that an employer in the circumstances might seek legal advice to find breaches of work health and safety laws; and avoid a repetition of conduct identified by an investigation report as having occurred. The Deputy President found no clear reason why an employer cannot elect to conduct a workplace investigation in a way that ensures the product of the investigation is subject to LPP.

If LPP can be established over the investigation, witness statements or interviews can also maintain privilege if they are conducted in a certain way. Practitioners should make clear that the purpose of the interview is to enable the lawyer to give legal advice and confirm to the interviewee that they represent the council and cannot advise the interviewee in his or her personal capacity. If the person conducting the interview is not a lawyer, they should make clear that they have been engaged by the council’s lawyer to assist them in providing legal advice to the council.

It should also be stated that:

  • the interview is confidential and privileged, and the interviewee should not discuss the interview with any other person (except their own legal representative)
  • the interview is confidential and privileged and the report will not be provided to the interviewee
  • if a record of the interview is to be made available to the interviewee, it is private and confidential and should not be shared with any other person (except the witness's own legal representative).

The doctrine of establishing and maintaining legal professional privilege over sensitive information is complicated and the reality of council resources and protocols will make establishing LPP in many instances difficult, if not impossible. We expect this to become a more commonly relevant consideration for workplace investigations as the responsibility for stamping out discrimination and harassment in the workplace increasingly falls on employers in all sectors. While attempts to establish LPP may not always be successful, some simple measures taken at the outset of an investigation could make a huge difference if the matter does end up in the civil courts.

If you have any questions about this article, please get in touch with a member of our team below.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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