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Work Place Legal FOR MENTION 65
June/July 2016

Legal Professional Privilege and Investigation Reports

Kirkman v DP World Melbourne Ltd [2016] FWC 605

A recent decision of the Fair Work Commission in an unfair dismissal case raises the issue of legal professional privilege in the context of workplace investigations and how the privilege may be established and how it may be inadvertently waived by employers.

Legal professional privilege is a principle that provides that confidential communications between a client and their legal practitioner for the dominant purpose of the client obtaining, or the practitioner giving legal advice (advice privilege) or for use in contemplated or existing litigation (litigation privilege), need not be given in evidence nor disclosed by the client or the legal practitioner, without the consent of the client. Privilege may be waived expressly (by tendering a document into evidence) or impliedly (by putting the substance of the communication into issue).


DP World had previously instructed its lawyers to engage a consultant to investigate several complaints of bullying in the workplace. After later receiving a bullying complaint against Mr Kirkman, DP World instructed its lawyers to advise the consultant to also investigate the complaint against Mr Kirkman. The investigation report discussed the allegations against Mr Kirkman and other employees. The report found that the allegations against Mr Kirkman were substantiated. Mr Kirkman was subsequently dismissed for bullying on the basis of his response to the allegations and the findings in the report.

Mr Kirkman then filed an unfair dismissal application. In his application, he asked that documents, including the investigation report prepared by the consultant be produced. DP World objected to the investigation report being produced on the basis that it was subject to legal professional privilege.

Mr Kirkman asserted that the report was not privileged as the purpose of the report was not for DP World to gain legal advice and that the report would have been prepared anyway. Further, Mr Kirkman alleged that DP World had waived privilege over the report by partially disclosing contents of the report during the disciplinary proceedings against him.


The Commissioner held that the investigation report was privileged and noted the following:

  • The dominant purpose of the report was for DP World’s lawyers to provide it with legal advice. Specifically, the consultant was engaged by DP World’s lawyers for the purpose of conducting an investigation to assist it in providing legal advice to their client
  • The report was marked confidential and privileged
  • The consultant’s communications were directed to DP World’s lawyers; and
  • DP World has not expressly or impliedly waived privilege over the report during the disciplinary process. Specifically, disclosure of the conclusion or gist of the advice does not necessarily give rise to a waiver of privilege in respect of the whole advice.


  • If you want investigation reports to be privileged, you should seek legal advice from the outset and throughout the investigation to ensure that privilege is properly established and not inadvertently waived through disclosure.
  • Consideration needs to be given to how an investigation report is circulated and to whom if legal professional privilege is to be maintained.

For further advice and assistance, contact Workplace Legal at 03 9972 4950

Costs in the Fair Work Commission

Colin Ferry v GHS Regional WA PTY Ltd T/A GHS Solutions [2016] FWC 3120

This case concerned a costs application in the Fair Work Commission (’the FWC’). The FWC is generally a jurisdiction in which the parties bear their own costs. However, the Fair Work Act 2009 (Cth) (’the Act’) provides scope for a party to make an application to the FWC for it to exercise its discretion and order costs against the other party in certain circumstances.


Mr Ferry’s employment was terminated by his employer, GHS Solutions, in October 2015. He subsequently made an unfair dismissal application to the FWC. The matter was referred for a number of telephone conciliations. Following the third and final telephone conciliation, GHS Solutions made an offer of settlement, by letter, directly to Mr Ferry.

GHS Solutions advised Mr Ferry in the letter dated 12 June 2015 that if he failed to accept the offer and GHS Solutions incurred costs in any future proceedings, they may rely on the letter in any application to recover its costs from him.

Mr Ferry rejected this offer and made no counter offer so the matter proceeded to a hearing.

Mr Ferry’s unfair dismissal application was dismissed in its entirety by the FWC. GHS Solutions then made an application for an order for costs under the Act on the basis that Mr Ferry caused costs to be incurred by GHS Solutions because of an unreasonable act or omission in connection with the conduct or continuation of a matter, being his rejection of the offer made to him on 12 June 2015.


The FWC ordered costs against Mr Ferry. In reaching this decision the FWC considered whether it was unreasonable for Mr Ferry to reject the offer or whether his rejection of the offer was just ‘hard bargaining’, which parties are entitled to do.

The FWC found that although Mr Ferry was unrepresented throughout the proceedings, at the time he rejected the offer he had sufficient information to realise that he had little chance of succeeding with his unfair dismissal application. All witness statements and documents that the parties would rely upon in the proceedings had been filed and served. Mr Ferry was aware of the detail of GHS Solutions’ case and specifically, he was aware of the matters that GHS Solutions asserted that he was not able to make out.


The FWC is ‘bear your own costs’ jurisdiction. However, the Act provides scope for costs orders to be made.

In this case, the dismissed employee was held to have acted unreasonably in rejecting an offer of settlement. Further legal costs were incurred by his former employer as a result and accordingly, he was ordered to pay those costs.

It is important for parties to any proceeding to seriously consider offers put to them, in light of their ultimate prospects of success. Further, an offer of settlement in any jurisdiction, including the FWC, can be an effective way of not only settling a matter and thereby preventing further costs being incurred by the parties, but it enables the party who made the offer to try to recover some of those costs if the matter does proceed and they are successful

For further advice and assistance, contact Workplace Legal at 03 9972 4950

Suite 101, 88 Albert Road
South Melbourne VIC 3205
tel 03 9972 4950
fax 03 9923 6441

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