DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Damien Stephen
v
Seahill Enterprises Pty Ltd & Denise Fitzgibbons
(C2021/1216)

Appeal against decision [2021] FWC 972 of Commissioner Simpson at Brisbane on 24 February 2021 in matter number AB2020/645.

Introduction

[1] On 28 September 2020, Mr Damien Stephen lodged an application for an order to stop bullying against Mrs Denise Fitzgibbons pursuant to s 789FC of the Fair Work Act 2009 (FW Act). Mr Stephen is the operations manager of Seahill Enterprises Pty Ltd (Seahill), a business which operates three licensed premises in Queensland, and Mrs Fitzgibbons is the sole director and owner of Seahill. On 4 February 2021, Mr Stephen applied for orders for the production of documents directed to Mrs Fitzgibbons, Seahill, Mr Arron Hartnett, a barrister, and Ms Paulette McCormack, the Director of Fresh HR Insights (FHRI). Mrs Fitzgibbons, Seahill and/or the law firm representing them, O’Reilly Workplace Law (OWL), objected, relevantly, to the making of the proposed orders insofar as they required the production of documents relating to an investigation of Mr Stephen’s bullying allegations against Mrs Fitzgibbons undertaken by Mr Hartnett (investigation), as well as certain other categories of documents, on the basis that the documents were subject to legal professional privilege. 1 In a decision2 issued on 24 February 2021 (decision), Commissioner Simpson, who has carriage of Mr Stephen’s anti-bullying application, generally upheld the claims of legal professional privilege, found that privilege had not been waived, and declined to issue any order for the production of the documents the subject of the claim of privilege. Mr Stephen has applied for permission to appeal and appealed the decision on the basis that the Commissioner erred in determining that the documents sought were privileged or, alternatively, erred in finding that privilege had been waived.

Relevant statutory provisions

[2] Section 789FF of the FW Act confers power upon the Commission to make orders to stop bullying in the following terms:

789FF FWC may make orders to stop bullying

(1)  If:

(a)  a worker has made an application under section 789FC; and

(b)  the FWC is satisfied that:

(i)  the worker has been bullied at work by an individual or a group of individuals; and

(ii)  there is a risk that the worker will continue to be bullied at work by the individual or group;

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group.

(2)  In considering the terms of an order, the FWC must take into account:

(a)  if the FWC is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body--those outcomes; and

(b)  if the FWC is aware of any procedure available to the worker to resolve grievances or disputes--that procedure; and

(c)  if the FWC is aware of any final or interim outcomes arising out of any procedure available to the worker to resolve grievances or disputes--those outcomes; and

(d)  any matters that the FWC considers relevant.

[3] The power of the Commission to compel a person to produce documents to the Commission is contained in s 590 of the FW Act, which relevantly provides:

590 Powers of the FWC to inform itself

(1)  The FWC may, except as provided by this Act, inform itself in relation to any matter before it in such manner as it considers appropriate.

(2)  Without limiting subsection (1), the FWC may inform itself in the following ways:

. . .

(c)  by requiring a person to provide copies of documents or records, or to provide any other information to the FWC;

. . .

Factual background

[4] The circumstances pertaining to the initiation and conduct of the investigation require some explanation. On 15 October 2020, after the lodgement of the anti-bullying application by Mr Stephen, FHRI filed a Form F73 response to Mr Stephen’s application. The response was nominally made on behalf of Seahill as Mr Stephen’s employer, but was signed by Ms McCormack as “Representative” of both Mrs Fitzgibbons and Seahill and contained a comprehensive refutation of Mr Stephen’s bullying allegations on the part of Mrs Fitzgibbons. The matter was allocated to the Commissioner on 16 October 2020. On 29 October 2020, the Commissioner advised the parties that a conference listed in the matter for 4 November 2020 had to be adjourned because it was necessary for him to take leave, and asked the parties if they objected to the conference being conducted on 5 January 2021. By this time, Mrs Fitzgibbons and Seahill had engaged OWL to act for them in the proceedings. On 30 October 2020, OWL advised the Commission that it was commencing to act for Mrs Fitzgibbons and Seahill and asked for more time to obtain instructions about the proposed new date for the conference. On 4 November 2020, OWL sent the Commission an email which relevantly stated:

“We refer to your below email regarding the above matter. As you are aware, we act for Seahill Enterprises Pty Ltd (Seahill Enterprises) (the Applicant’s employer) and Mrs Fitzgibbons (the Director of Seahill Enterprises and the Respondent to the Applicant’s anti-bullying application). Please see the attached Form F53.

Our clients respectfully request that this matter be reallocated to another Member of the Fair Work Commission (Commission) so that the telephone conference may be listed on a date before 5 January 2021. Seahill Enterprises has an obligation to investigate the allegations that the Applicant has raised in his application reasonably quickly, given their nature and has not yet had an opportunity to follow its internal investigation processes. Further, until Seahill Enterprises has the opportunity to address the application and the allegations contained in it, it will likely be challenging for Mrs Fitzgibbons and the Applicant to work together. We are instructed that this will make it very difficult for Mrs Fitzgibbons and Seahill Enterprises considering that Mrs Fitzgibbons is the sole Director or the company and the Applicant is the Manager of Seahill Enterprises’ overall operations. The November to January period is also generally the busiest time of year for Seahill Enterprises, and Mrs Fitzgibbons and Seahill Enterprises wishes to be able to properly interact with the business that Mrs Fitzgibbons owns, as soon as practicable. Accordingly, our clients would like the opportunity to be able to address the Applicant’s application prior to 5 January 2021.” (underlining added)

[5] Mr Stephen objected to the course proposed in OWL’s email of 4 November 2020, as well as to Mrs Fitzgibbons and Seahill being legally represented in the proceedings. OWL responded to Mr Stephen’s objection in a further email sent on 5 November 2020, and Mr Stephen responded in a further email the same day. On 11 November 2020, the Commissioner’s chambers sent an email to the parties which relevantly stated:

“The Commissioner advises the matter will be adjourned at this stage until the Employer has had an opportunity to carry out its internal investigation processes. The Commissioner requests the Employer advises chambers as soon as this investigation has been completed.

Please also be advised the issue of legal representation will be dealt with at the start of the Conference should it proceed before Commissioner Simpson.”

[6] Ms Denise O’Reilly, the director and principal lawyer of OWL, stated in an affidavit sworn on 12 February 2021 that on or about 18 November 2020, OWL directly engaged Mr Hartnett to:

(a) investigate the allegations made by Mr Stephen in his application that Mrs Fitzgibbons had engaged in repeated unreasonable behaviour towards him that created a risk to his health and safety;

(b) determine whether Mr Stephen’s allegations were substantiated; and

(c) if they were, determine whether they amounted to bullying (as defined in s 789FD of the FW Act) or other unlawful conduct.

[7] Ms O’Reilly said that this was done so that OWL could provide legal advice to Seahill regarding those findings and potentially make use of the findings in the proceeding before the Commission. The actual letter sent by OWL to Mr Hartnett by which he was engaged to undertake the investigation, which is dated 18 November 2020, was provided to the Commissioner on a confidential basis and was accessible to us. Its contents are consistent with Ms O’Reilly’s description of the purpose of the investigation in her affidavit.

[8] Ms O’Reilly also said in her affidavit that, on or about 23 November 2020, OWL engaged another barrister, Mr Stephen Mackie, for the purpose of investigating allegations raised by former employees of Seahill against Mr Stephen to determine whether he had engaged in misconduct and so that OWL could provide legal advice to Seahill regarding those findings. OWL’s letter to Mr Mackie dated 23 November 2020 which engaged him to undertake this investigation was also made available to the Commissioner on a confidential basis, and was accessible to us. Its contents are consistent with Ms O’Reilly’s description in her affidavit as to the intended purpose of the investigation.

[9] On 30 November 2020, OWL sent Mr Stephen a letter by email which concerned certain issues about work interaction between Mrs Fitzgibbons and Mr Stephen. The letter included the following statements:

“Ongoing investigation into bullying allegations

The bullying allegations that you made against Mrs Fitzgibbons in your application to the Fair Work Commission…dated 28 September 2020… are the subject o[f] an ongoing investigation, in accordance with the directions from Commissioner Simpson issued on 11 November 2020…

. . .

Update regarding investigation process

To update you, we have recently instructed Arron Hartnett of Counsel to conduct the investigation. We and/or Paulette McCormack (Fresh HR Insights) will be in touch in the coming days regarding the investigation interviews. We remind you that as an employee of Seahill, you are required to comply with all lawful and reasonable instructions from Seahill, including to participate in an investigation related to allegations you have raised. Further, to maintain the confidentiality of the investigation process and not discuss matter the subject of the investigations with any other persons.”

[10] On 8 December 2020, FHRI emailed a letter to Mr Stephen headed “Direction to attend investigation meeting regarding allegations you have raised”. The letter was signed by Ms McCormack. In the letter, Ms McCormack stated that Seahill had engaged FHRI to “assist with coordinating the investigation into allegations of workplace bullying that you have raised against Mrs Fitzgibbons in an application to the Fair Work Commission”. In the letter, Ms McCormack purported to direct Mr Stephen to attend a meeting with Mr Hartnett on 9 December 2020 at an identified time and place. Her letter attached a “witness protocol sheet” (under FHRI’s letterhead) which was described as including “your obligations regarding confidentiality, honesty, and cooperation with the investigator”, and Mr Stephen was warned that any breach of the witness protocol or disclosure of confidential information might result in disciplinary action being taken against him. He was also reminded “of your obligation to comply with all lawful and reasonable instructions made on behalf of your employer, including to attend the investigation meeting”. The letter did not identify the basis upon which Ms McCormack, or FHRI, was authorised to issue employment directions on behalf of Seahill.

[11] Having received and read the above correspondence, Mr Stephen sent an email to the Commissioner’s chambers the same day protesting about the investigation and direction, characterising the correspondence as “yet another example of systemic bullying by the Respondent”, and seeking that the Commission “restrain the Respondent requiring my participation in such activity and behaviours”. OWL then sent an email in response to the Commissioner’s chambers which relevantly stated:

“In your email dated 11 November 2020, you advised that Commissioner Simpson had adjourned this matter so that the Applicant’s employer, Seahill Enterprises Pty Ltd (Seahill), may have the opportunity to ‘carry out its internal investigation processes’.

In accordance with the purpose of the adjournment, Seahill subsequently decided to engage Arron Hartnett of Counsel (an experienced barrister and workplace investigator) to carefully and independently investigate the bullying allegations that are the substance of the Applicant’s application. We are instructed that, to ensure the independence of the investigation and that the allegations will be carefully and thoroughly investigated, Seahill took the additional step of engaging an independent, external investigator with whom it has not had any prior dealings. The Applicant was notified that Mr Hartnett had been engaged for that purpose more than a week prior, on 30 November 2020.

The letter from Fresh HR Insights dated 8 December 2020 is a direction to the Applicant to attend an investigation meeting with Mr Hartnett on 9 December 2020. The letter provided him with more than 24 hours’ notice of the meeting (which it was subsequently confirmed with the Applicant will take place at 10:30am). The purpose of meeting is for the Applicant to provide his account of the bullying allegations to an unbiased, independent third party and to ensure procedural fairness. Accordingly, Seahill rejects the Applicant’s allegations that there has been an ‘abuse of process’, that his right to procedural fairness has been infringed or that the meeting tomorrow would be a ‘prejudiced interview’, and says that those allegations are entirely without basis. Further, the direction to attend the meeting tomorrow with Mr Hartnett at 10:30am remains in place.

The Applicant has been reminded of his obligation to comply with all lawful and reasonable instructions made on behalf of his employer, including to attend the investigation meeting.”

[12] Also in response to Mr Stephen’s email to the Commissioner’s chambers, FHRI sent him a letter the same day which relevantly stated:

“…I am instructed by Seahill Enterprises Pty Ltd (Seahill) that on 11 November 2020, Commissioner Simpson adjourned the matter regarding your anti-bullying application … so that Seahill could investigate the allegations that form the substance of the Application, being bullying allegations that you have made against Mrs Fitzgibbons. Following this, Seahill instructed their solicitors at O'Reilly Workplace Law to engage Arron Hartnett (Barrister) to conduct an independent investigation of those allegations. Mr Hartnett is very experienced in conducting workplace investigations. Accordingly, Seahill's appointment of Mr Hartnett and instruction to you are directly in accordance with the purpose for which Commissioner Simpson adjourned the Application.

Further, and in any event, Seahill has an obligation to investigate bullying allegations under the Work Health and Safety Act 2011 (Qld).

Seahill has sole discretion to decide who will investigate internal workplace matters. In order to ensure the independence of the investigation and any findings, Seahill took the extra step of engaging a barrister who is entirely external and separate to Seahill, and with whom Seahill has never had dealings with before. Further, the sole purpose of tomorrow's meeting with Arron Hartnett is so that you can provide your account of and any further detail regarding your allegations against Mrs Fitzgibbons. Accordingly, your allegations that there has been an 'abuse of process' or that your right to procedural fairness has been infringed are entirely without basis and misunderstand the process that is underway.

The direction to attend the investigation meeting with Arron Hartnett tomorrow, Wednesday 9 December 2020, at 10:30am remains in place… If you do not attend the meeting, you will have failed to comply with a lawful and reasonable instruction from Seahill... Accordingly, your failure to comply with the direction to attend the meeting may result in Seahill taking disciplinary action against you. Accordingly, you are directed to confirm by 5:00pm today, 8 December 2020 that you will be attending the investigation meeting tomorrow.”

[13] In response to this missive, Mr Stephen sent an email to Ms McCormack in which, among other things, he invited her to identify the basis of the legal obligation she said existed upon him to participate in the investigation so that he could obtain legal advice, and advised that he intended to see a medical practitioner the next day (9 December 2020) “to have my mental health reviewed in light of your aggressive, unilateral demands and the inappropriate manner in which you are conducting yourself”. Mr Stephen also sent a further email to the Commissioner’s chambers requesting that the matter be listed for urgent directions.

[14] Ms McCormack responded to Mr Stephen’s email at 9.44pm on 8 December 2020. In her reply she sought clarification as to whether he intended to attend the interview the following day and, in relation to the investigation process, said:

“•  Seahill's Workplace Bullying/Harassment Policy (Policy) states that Steps 2 of its investigation process, after receiving an employee complaint alleging workplace bullying/harassment will involve the following:

‘Step 2: The Manager* shall, upon receipt of the details of the complaint, commence an investigation into the complaint. This may involve interviewing witnesses, the complainant, the alleged harasser/bully and seeking other information to allow them to determine whether workplace harassment/bullying has occurred. At this step the Manager* may also seek for an external party, such as QHA, to undertake the investigation.

*or alterative person appointed in the event the complaint involves the venue's Manager (emphasis added).’

•  Accordingly, Seahill's decision to appoint an external, independent investigator in this circumstance accords with the terms of its Policy, given that you and Mrs Fitzgibbons are directly involved in the allegations and so realistically there is no other person in a managerial position at Seahill who could objectively investigate these allegations, without a conflict of interest. Mrs Fitzgibbons has an obvious conflict of interest against her personally conducting the investigation into allegations that have been raised against her.

•  It is a natural and customary process of any workplace investigation for the person who has raised allegations against another to be interviewed, so that they may confirm their account of what happened and provide further any detail of what occurred or identify any other witnesses who may be relevant. Accordingly, the direction that you attend an investigation meeting was not in any way intended to humiliate you as you have alleged. It is merely to confirm what your allegations against Mrs Fitzgibbons are, so that they may be properly investigated.

•  Further, it is an established principle that employees have an implied duty to comply with all lawful and reasonable instructions from their employer. Failure to comply with lawful and reasonable instructions is included in the definition of serious misconduct under Regulation 1.07 of the Fair Work Regulations 2009 (Cth). It is also an established principle that employees have an obligation to participate in workplace investigations. Particularly where the investigation centres around complaints/allegations made by that employee.”

[15] The following morning (on 9 December 2020), the Commissioner’s chambers responded to Mr Stephen’s request for a relisting of the matter, advising that the Commissioner was on leave and unable to list the matter until 5 January 2021, and requesting Mr Stephen to confirm how he wanted the matter to proceed having regard to his previous advice that it was his preference that the matter should await the Commissioner’s return and not be allocated to another member. Mr Stephen responded the same day that “under duress” he had consented to attend the interview that day and would provide further advice as to his request for a directions hearing after this.

[16] Mr Stephen apparently attended for the interview that day at the time and place previously advised, only to be told that it was adjourned until the following day (10 December 2020). He then sent a further email to the Commissioner’s chambers requesting that the matter be listed for an urgent directions hearing before another member. OWL then sent correspondence by email to the Commissioner’s chambers which explained why the investigation interview had been adjourned, and stated the following about the investigation:

“Seahill Enterprises Pty Ltd … direction to the Applicant that he attend an investigation meeting with an external investigator is in accordance with Seahill’s Workplace Bullying/Harassment Policy which anticipates that Seahill may engage an external party where the investigation involves a manager. The Applicant occupies the role of Operations Manager at Seahill and his allegations involve the Director of Seahill (Mrs Fitzgibbons). Accordingly, it was in line with the Applicant’s policy and was appropriate that Seahill have its external solicitors (O’Reilly Workplace Law) appoint Arron Hartnett of Counsel to investigate the Applicant’s bullying allegations, to ensure the independence of the investigation. Significant resources have already been expended by Seahill in making these arrangements. For these reasons, Seahill considers it a lawful and reasonable direction that the Applicant attend a meeting with Mr Hartnett as part of the investigation. Further, that the Applicant’s failure to attend the meeting will be a failure to comply with a lawful and reasonable direction, unless he is unfit to attend.”

[17] It is evident that, at or about this time, Mr Stephen engaged Archibald & Brown Lawyers (ABL) to represent him in relation to the matter. On 10 December 2020, OWL sent an apparently unprompted letter to Mr Leslie Moore of ABL which stated:

“We act on behalf of Seahill Enterprises Pty Ltd (Seahill), the employer of your client Damien Stephen, as well as for Denise Fitzgibbons (Director of Seahill).

By way of background, Mr Stephen received multiple directions from Seahill to attend an investigation meeting today 10 December 2020 at 10:30am with Arron Hartnett of Counsel (who has been engaged as an independent investigator), in relation to bullying allegations he has raised against Mrs Fitzgibbons, at our offices. Your client was informed by Ms Paulette McCormack (Seahill's human resources advisor) at 9:58am yesterday that the meeting had been rescheduled to 10:30am today, to allow him further time to prepare for the meeting and to arrange for a support person. Despite this, Mr Stephen failed to attend the meeting today- it is now approximately 1:00pm and Mr Stephen has not attended. Mr Stephen has also not provided any reasonable basis on which he has not attended - we understand that Mr Stephen is currently at work at Robina Pavilion and therefore understand that he is not unwell or unfit to attend the meeting with Mr Hartnett.

Your client has been reminded on several occasions that he has an obligation to comply with all lawful and reasonable instructions from his employer, and that there may be consequences for failing to do so. This includes to comply with a direction to participate in an investigation regarding his employment (particularly where the investigation relates solely to allegations raised by him).

Mr Stephen has sought to assert that he is not required to comply with the instruction to attend the meeting in various items of correspondence to us and to our client (or to Ms McCormack). However, he is incorrect and he is bound to comply with these instructions. Given Mr Stephen has communicated that he is receiving legal advice, in turn advice to confirm the requirement to comply with these lawful and reasonable instructions has been available to him.

Accordingly, your client has now failed to comply with several lawful and reasonable instructions from Seahill. This includes a direction to confirm whether he has documents, notes, or electronic files in his possession that relate to the allegations and to provide them to the investigator.

Warning regarding his employment

The purpose of this letter is therefore to issue Mr Stephen with a warning in relation to his employment. Further, to remind your client again that any further failure to comply with lawful and reasonable instruction, and specifically the direction to attend the investigation meeting, amounts to misconduct (or even serious misconduct) and may result in disciplinary action up to and including termination. There is greater seriousness when a person who holds a senior, managerial position fails to comply with lawful and reasonable instructions, given that they are obliged to be an example of, and enforce the standard of conduct required by, an employer.

Further direction Mr Stephens must comply with

We are instructed that Seahill is willing to give your client a further opportunity to comply with the directions issued to him in relation to the investigation - the meeting with Mr Hartnett has been rescheduled to 4:00pm today, 10 December 2020… If Mr Stephen does not attend this meeting, as mentioned, his employment with Seahill may be at risk for failing to comply with a further lawful and reasonable direction…”

[18] It is unclear why OWL considered it appropriate to send a letter containing a purported warning and employment direction directed to Mr Stephen to ABL. ABL replied to the letter the same day, and stated that it confirmed it acted for Mr Stephen, that it had advised Mr Stephen not to attend to the directed investigation interview, and challenged the basis upon which the production of relevant documents was sought by Seahill.

[19] The interview did not proceed on 10 December 2020. On 11 December 2020, OWL sent ABL a lengthy response. This letter relevantly stated:

“We refer to your 10 December 2020 letter to our firm in relation to the investigation process underway regarding your client's allegations about conduct he alleges was directed at him by the director of Seahill Enterprises Pty Ltd (Seahill), Mrs Denise Fitzgibbons.

Broadly, it seems that you and/or your client have misunderstood the context in which the investigation is being undertaken, our client's right (and obligation) to undertake the investigation, and the legal basis upon which your client has been directed to attend. However, given that you have said that you have only yesterday (10 December 2020) been instructed to act for Mr Stephen, and because you have made allegations about the appropriateness of Seahill's conduct in light of the proceedings on foot, we have provided below some background to this matter and a brief summary of relevant events.

1. Background

Mr Stephen filed an application in the Fair Work Commission (Commission) on or about 28 September 2020 making bullying allegations against our client, Mrs Fitzgibbons (Proceeding). The Proceeding was allocated to Commissioner Simpson. On 11 November 2020, Commissioner Simpson's Associate stated via email that:

The Commissioner advises the matter will be adjourned at this stage until the Employer has had an opportunity to carry out its internal investigation processes. The Commissioner requests the Employer advises chambers as soon as this investigation has been completed. (emphasis added)

…Accordingly, the Commission has made clear to the parties its expectation that your client's bullying allegations would be investigated by Seahill … and that the Commission would not be involved until that investigation has been completed. This is effectively a direction of the Commission. On this basis, our client has sought to investigate the matter.

So that you are aware, before making an Order in relation to an application for an order to stop bullying, under s.789FF of the Fair Work Act 2009 (Cth) (FW Act), the Commission will first consider (amongst other things):

•  whether the Commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being or has been undertaken. That is, whether an internal investigation has been undertaken and its findings and outcomes in relation to the allegations; and

•  whether there is any procedure (such as a procedure under a policy) that may resolve the employee's grievance or dispute.

If so, the Commission may make Orders including that the procedure be followed, or it may simply dismiss the application and not make an order. Accordingly, Commissioner Simpson adjourned the Application so that could Seahill first investigate your client's allegations (in accordance with its Workplace Bullying/Harassment Policy) before convening a hearing or a conference, or making an Order in relation to the Proceeding. Our client has since acted to comply with the directions of the Commission.

2. Seahill's bullying policy and the independent investigation process

Specific policy terms

Seahill's Workplace Bullying/Harassment Policy (Policy) states that Steps 2 of its investigation process (which follows the receipt of an employee's complaint alleging workplace bullying/harassment) will involve the following:

Step 2: The Manager* shall, upon receipt of the details of the complaint, commence an investigation into the complaint. This may involve interviewing witnesses, the complainant, the alleged harasser/bully and seeking other information to allow them to determine whether workplace harassment/bullying has occurred. At this step the Manager* may also seek for an external party, such as QHA, to undertake the investigation.

*or alternative person appointed in the event the complaint involves the venue's Manager (emphasis added).

Accordingly, Seahill's decision to appoint an external, independent investigator in this circumstance (which is Mr Hartnett) accords with the terms of the Policy. Mr Stephen and Mrs Fitzgibbons are directly involved in the allegations and so there is no other person in a managerial position at Seahill who could objectively investigate these allegations, without a conflict of interest. Further, while Mr Hartnett is a Barrister, he has been engaged by us as an independent investigator and will be acting solely in that capacity. He is a very experienced and professional workplace investigator. On this basis, Seahill's appointment of Mr Hartnett is contemplated by the policy and necessary to comply with the direction of the Commission.

General right to investigate

To avoid any doubt, even absent a term of a policy to the effect of that set out above, our client is entitled to investigate any allegations raised by its employees. It is further entitled to appoint an independent investigator of its choice, and to direct its employees to participate in such an investigation. There is no doubt about our client's legal right to undertake such a step.

Two directions to attend interview

Further, the purpose of your client's interview with Mr Hartnett (which was scheduled at 10:30am and then again 4:00pm yesterday due to your client's failure to comply with instructions to attend) is to:

•  allow Mr Stephen the opportunity to confirm his account in relation to the allegations he has raised;

•  allow Mr Stephen to provide any additional information about the allegations he has; and

•  for Mr Hartnett to ask Mr Stephen questions related regarding the allegations he has made,

so that Mr Hartnett can form a view about the allegations. This a common step in workplace investigations. There is nothing inappropriate or sinister about seeking to gain additional details from a complainant about a complaint. The purpose of the interview is not for 'cross-examination at large' as you have asserted, nor for Mr Hartnett to 'interrogate him'. These assertions misunderstand standard approaches to workplace investigations.

Accordingly, it was reasonable and in accordance with Commissioner's Simpson's direction, for our client to:

•  commence the independent investigation into the allegations raised by your client;

•  appoint Mr Hartnett to conduct the independent investigation; and

•  direct your client and other witnesses to attend meetings with Mr Hartnett as part of the investigation so that findings can be made.

On this basis, his failure to comply with them amounts to misconduct.

Seahill's directions are lawful and reasonable

In your letter you have alleged that by seeking to press the investigation, O'Reilly Workplace Law or our client have sought to 'subvert the course of the FWC proceeding', and that we have committed an 'abuse of process'. This allegation is misconceived, without basis and misunderstands the orders and expectations of the Commission.

The actions of our client and O'Reilly Workplace Law directly accord with the purpose of Commissioner Simpson's decision to adjourn of the Proceeding. Therefore, the direction that your client attend a meeting with Mr Hartnett was a lawful and reasonable direction, with which he was obliged to comply.

Implied duty to comply with all lawful and reasonable instructions

You and your client have asserted in multiple pieces of correspondence that Mr Stephen is not obliged to comply with the directions he has been issued. Such a position is incorrect, and places your client in breach of a fundamental term of his employment contract. It is a long and well established principle that implied into every employment contract is an obligation on an employee to comply with all lawful and reasonable directions of their employer: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday; Ex parte Sullivan (1938) 60 CLR 601. Further, that an employee's willful and deliberate failure to comply with a lawful and reasonable direction from their employer can amount to serious misconduct (see Regulation 1.07 of the Fair Work Regulations 2009 (Cth)). Given our client's multiple lawful and reasonable directions to Mr Stephen, your advice that Mr Stephen 'decline any such direction' from Seahill in relation to the investigation is wrong, causes your client to breach his contract with Seahill, and exposes your client to the risk of dismissal. Your client has now failed to comply with approximately 3 lawful and reasonable directions from Seahill and as such, his employment with Seahill is at significant risk…”

[20] The letter went on to direct Mr Stephen to attend a rescheduled interview that afternoon (11 December 2020) and to identify and bring to the interview any documents relevant to his bullying allegations.

[21] There was a further exchange of correspondence between ABL and OWL following this the same morning. ABL advised that Mr Stephen would not be attending the interview because he was seeking advice from counsel as to his position, and OWL responded by stating that if Mr Stephen did not attend the interview that afternoon, Seahill directed him to show cause by 5.00pm on 14 December 2020 why his employment should not be terminated for serious misconduct. Mr Stephen did not attend the interview. ABL replied to OWL’s last correspondence on 14 December 2020 and, among other things, contested that the Commission had directed Mr Stephen’s participation in the interview. In its reply correspondence of the same date, OWL accepted that the Commissioner had adjourned the matter so that Seahill could conduct whatever investigations it required and said: “The independent investigation that has been underway and conducted by Arron Hartnett is the investigation that our client requires, and is in accordance with Seahill's Workplace Bullying/Harassment Policy”. It also extended the period for Mr Stephen to show cause why he should not be dismissed for serious misconduct until 2.30pm, 15 December 2020.

[22] On 15 December 2020, ABL sent a letter to OWL in which it stated, amongst other things, that while Mr Stephen maintained the position that Seahill’s directions were unlawful and in contempt of the Commission proceedings and the rules of procedural fairness, he was prepared to submit to an interview with Mr Hartnett provided that he was legally represented. ABL’s correspondence also made reference to the “apparent mixed purpose” of the investigation. In reply correspondence dated 17 December 2020, OWL proposed that the interview take place on 22 December 2020, and acceded to the request for Mr Stephen to be legally represented provided that this was in a support capacity only and not for the purpose of advocacy. OWL also responded to ABL’s contention that the investigation had a mixed purpose as follows:

“There is no 'mixed purpose' of the investigation as you have asserted. The purpose of the investigation is to consider and then form a view about whether the various allegations made by your client against Mrs Fitzgibbons are substantiated or unsubstantiated, so that our firm can in turn provide legal advice about the allegations.”

[23] On 16 December 2020, Mr Stephen’s anti-bullying application was eventually listed for mention before the Commissioner on 5 January 2021. In light of this development, ABL wrote to OWL proposing that the interview be postponed until after 5 January 2020. This was rejected in correspondence sent by OWL to ABL on 22 December 2020. In this correspondence, OWL said (among other things):

“… the sole purpose of the investigation conducted by Mr Hartnett is to determine whether the allegations raised by Mr Stephen can be substantiated, which is in accordance with the purpose of the Commissioner Simpson's decision to adjourn your client's antibullying application. There is no predetermined outcome to that investigation and Mr Hartnett's findings will be based only on the evidence gathered during the investigation. The fact that we will provide advice to our client in relation to the findings of that investigation does not change the purpose of the investigation or in any way compromise the objectivity of the investigation. Our client decided to engage our firm, which practices exclusively in employment law, so that it may carefully, properly and lawfully address Mr Stephen's allegations particularly if they can be substantiated…”

[24] Mr Stephen attended the interview with Mr Hartnett on 22 December 2020 together with Mr Moore of ABL and his counsel, Mr Gavin Rebetzke. The meeting was recorded by Mr Moore, with Mr Hartnett’s acquiescence, and ABL produced a transcript of the interview. The transcript shows that, after a short period in which Mr Stephen provided information in answer to questions from Mr Hartnett, the interview derailed when Mr Moore and Mr Rebetzke challenged the basis upon which the investigation was conducted. The transcript also records that, at one stage, Mr Moore said: “All of the product that you have done in your investigation is in the open, it's not legally professionally privileged”. Eventually, Mr Hartnett acceded to a proposal that the interview be adjourned until after the further mention before the Commissioner on 5 January 2021.

[25] The same day (22 December 2020), ABL wrote to Mr Hartnett requesting that he produce the following documents and classes of documents by 29 December 2020:

“1. The recordings of all interviews;

2. All statements, whether in draft or signed form, prepared in respect of those interviews;

3. All papers, notes or documents prepared or received during the course of the said interviews;

4. A copy of your instructions from O'Reilly Workplace Lawyers together with a copy of all material with which you are briefed;

5. A copy of all correspondence emails or other communications exchanged with either of O'Reilly Workplace Lawyers or Fresh HR Insights.”

[26] The same request was subsequently made to OWL and FHRI. OWL responded to this request in correspondence dated 23 December 2020 which relevantly stated:

“Legal professional privilege

Secondly, your assertion to Mr Hartnett that 'all and any work product which you have produced, including all recordings of any interviews, are not protected by Legal Professional Privilege and is material and documents liable to be provided to the parties in the FWC Proceedings' is incorrect. As you are aware, our firm engaged Mr Hartnett as an independent investigator to investigate the allegations raised by Mr Stephen. The dominant purpose of that engagement is so that we may provide legal advice in relation to the outcome of the investigation. This engagement has occurred in circumstances where there is actual litigation on foot. It is difficult to see how there could be any purpose for the investigation other than it being for the purpose of providing legal advice and/or litigation. On this basis, any work or documents (including recordings) produced during the course of Mr Hartnett's investigation are clearly covered by legal professional privilege.

Accordingly, Mr Hartnett is not obliged to provide to you the categories of documents listed in your letter or any documents relating to the investigation nor are they required to be disclosed during the proceeding before Commissioner Simpson. For those same reasons, it is inappropriate for you to request that Mr Hartnett disclose instructions and correspondence with our firm.

Further, as a reminder, the investigation conducted by Mr Hartnett involves allegations raised by your client - it does not involve allegations against your client that your client needs to respond to.”

[27] On 31 December 2020, FHRI sent a letter by email to Mr Stephen headed “Notification of investigation into allegations regarding your conduct”. The letter stated (omitting formal parts):

“The purpose of this letter is to notify you that your employer, Seahill Enterprises Pty Ltd (Seahill), has engaged Fresh HR Insights (Fresh HR) (of which I am the Director) to assist with coordinating an independent investigation into allegations that have been raised against you by a number of former employees of Seahill regarding your workplace conduct (Allegations). I understand that you are aware allegations have been raised against you, given that they are referenced in your antibullying application to the Fair Work Commission dated 28 September 2020 (Application). Also, that you previously asked to be provided with copies of the complaints so you could respond to them, or so that Seahill could in your place.

Seahill has arranged for the Allegations to be independently investigated by a barrister, Stephen Mackie, which you will be required to participate in. This investigation is entirely separate to the investigation conducted by Arron Hartnett in relation to allegations you have raised against Mrs Fitzgibbons (Director of Seahill) in the Application. Seahill has taken the step of investing resources in an entirely separate investigator and investigation process to ensure fairness to you and to ensure the independence and objectivity of the investigation. Particularly because of past complaints you have made asserting that the investigation process involving your complaint against Mrs Fitzgibbons has some retaliatory purpose (which is not the case). Further, the allegations and witnesses to each investigation are different and separate (save for the fact that you are a witness in each) and will be conducted at different times. The findings of one investigation will have no bearing on the other.

Ultimately, given the other investigation, Seahill would prefer not to have to investigate these Allegations against you. Particularly in light of your complaints. However, Seahill has an obligation under the Work Health and Safety Act 2011 (Qld) to investigate the Allegations and to take all reasonably practicable steps necessary to ensure that the workplace is free from risks to a person's health and safety as stated above. I also understand that you have previously requested that the Allegations be addressed anyhow.

Timing of the investigation

The investigation into the Allegations will likely commence in around mid-January 2021. I will be in touch with you closer to arrange a time and time for your meeting with Mr Mackie as part of the investigation. The purpose of that meeting will be for you to be presented with details of the Allegations and provide your responses to them.

I remind you that as an employee of Seahill, you are required to comply with all lawful and reasonable instructions from your employer, which includes participating in an investigation regarding your conduct.”

[28] On 4 January 2021, OWL sent correspondence to the Commission, for the purpose of the mention on 5 January 2021, setting out what it regarded to be the status of the matter. It firstly set out reasons for its appointment of Mr Hartnett to conduct the investigation, which it described as having been undertaken “for the purposes of providing legal advice and in light of the Application”. It described the status of the investigation as follows:

“Mr Hartnett commenced interviews with witnesses from on or about 10 December 2020, and we understand that interviews with all witnesses have been conducted other than with the Applicant who has been generally unwilling to participate (with two limited exceptions explained further below). Accordingly, we understand that Mr Hartnett is awaiting the Applicant’s evidence and will then be able to finalise his findings in relation to all Allegations. We understand that it may be possible for findings to be made about some Allegations without the benefit of the Applicant’s evidence. However, no findings have yet been made.”

[29] The letter referred to the documents that Mr Stephen had sought to be produced as follows:

“Further, the Applicant has sought to require the production of various documents from Fresh HR, Seahill and Mr Hartnett that relate to the Investigation and the Allegations. The categories of documents demanded include those which are legally privileged and or which are the property of Seahill or others. The Applicant and his representatives have threatened interlocutory proceedings if these documents were not provided by 29 December 2020. No such documents have been provided to the Applicant given their privileged nature and or due to those documents being the property of others.”

[30] Finally the letter said:

“Investigation of earlier allegations against the Applicant

Separately, both the Application and the Employer’s Response to the Application dated 14 October 2020 and filed by Fresh HR (Response) refer to complaints made by former employees of the broader Seahill group regarding the Applicant, and behaviour he is alleged to have directed towards them. The Response stated (on page 8) that these allegations would be investigated on completion of the matter. However, given the need to investigate these allegations, our firm appointed an investigator to investigate these separate allegations against the Applicant. In order to ensure the independence of this investigation and keep the process entirely separate from the investigation into the Allegations against Mrs Fitzgibbons, O’Reilly Workplace Law appointed Mr Stephen Mackie of Counsel to investigate the allegations against the Applicant. Fresh HR wrote to the Applicant on 31 December 2020 to inform him of this fact and that the investigation will likely take place in mid-January 2021. Again, Seahill instructed us to appoint Mr Mackie (who is an experienced workplace barrister) to conduct this investigation for similar reasons to the reasons for Mr Hartnett’s appointment which centre around ensuring an entirely independent and fair investigation process..”

[31] The mention of the matter before the Commissioner on 5 January 2021 resulted in the parties agreeing to participate in conciliation conferences before the Commissioner on 19 and 27 January 2021. Regrettably, these conferences did not result in the matter being settled. On 1 February 2021, OWL provided the Commission with written undertakings that “our client” (presumably Seahill) would not terminate Mr Stephen’s employment as a result of any findings made in the investigation reports to be provided by Mr Hartnett and Mr Mackie, would not “during this time” press for Mr Stephen’s participation in an interview, and would not terminate Mr Stephen’s employment on the basis of any new conduct outside the scope of the investigations prior to the hearing of his application. On 2 February 2021, the Commissioner listed the matter for final hearing on 22 and 23 February 2021.

The application for orders for production of documents and the claims of legal professional privilege

[32] On 4 February 2021, Mr Stephen filed four Form F52 applications for orders for the production of documents, directed to Seahill, Mrs Fitzgibbons, Mr Hartnett and FHRI. On 10 February 2021, OWL filed a document entitled “Schedule of Objections to Production of Documents” on behalf of “the Respondent”, identified in the document as Mrs Fitzgibbons. Presumably, therefore, the document is to be understood as constituting Mrs Fitzgibbons’ objections to the orders sought by Mr Stephen, and any claim for legal professional privilege is Mrs Fitzgibbons’ claim. The document categories that were the subject of a claim of legal professional privilege were as follows (by reference to the persons to whom the orders sought were directed, with our own numbering):

Seahill

(1) All notes, memoranda, minutes or other documents relating to the decision to commence an investigation by Mr Stephen Mackie into allegations raised against Mr Damien Stephen by a number of former employees of Seahill Enterprises Pty Ltd, the timing of that investigation, the decision to send notification of that investigation to Mr Stephen by letter on New Years’ Eve, 31 December 2021, and all documents comprising or containing the said allegations.

(2) All notes, memoranda, minutes or other documents relating to:

(a) The Arron Hartnell [sic] Investigation;

(b) The decision to direct Mr Stephen to attend for interview with Mr Hartnett on 22 December 2020;

(c) The decisions to require Mr Stephen to ‘show cause’ why his employment should not be terminated in December 2020.

(3) All notes, memoranda, minutes or other documents relating to the complaint made by Mr Stephen that Mrs Fitzgibbons made defamatory remarks of and concerning Mr Stephen including that Mr Stephen:

(a) is “the devil”;

(b) “does cocaine”;

(c) launders money from the Robina Tavern;

(d) employs young girls so he can have his way with them;

(e) breaks into Mrs Fitzgibbons’ bank accounts.

Mrs Fitzgibbons

(4) All notes, memoranda, minutes or other documents relating to the decision to commence an investigation by Mr Stephen Mackie into allegations raised against Mr Damien Stephen by a number of former employees of Seahill Enterprises Pty Ltd, the timing of that investigation, the decision to send notification of that investigation to Mr Stephen by letter on New Years’ Eve, 31 December 2021, and all documents comprising or containing the said allegations.

(5) All notes, memoranda, minutes or other documents relating to the Arron Hartnell [sic] Investigation including any statement provided to Mr Hartnell [sic].

(6) All notes, memoranda, minutes or other documents relating to:

(a) the decisions to direct Mr Stephen to attend for interview with Mr Hartnett;

(b) the decisions to require Mr Stephen to ‘show cause’ why his employment should not be terminated.

FHRI

(7) All notes, memoranda, minutes or other documents relating to the decision to commence an investigation by Mr Stephen Mackie into allegations raised against Mr Damien Stephen by a number of former employees of Seahill Enterprises Pty Ltd, the timing of that investigation, the decision to send notification of that investigation to Mr Stephen by letter on New Years’ Eve, 31 December 2021, and all documents comprising or containing the said allegations.

(8) Copy of the brief of documents provided to Arron Hartnell [sic] for his investigation for Seahill Enterprises Pty Ltd into bullying allegations made by Mr Stephen.

(9) Copy of the brief of documents provided to Stephen Mackie for his investigation for Seahill Enterprises Pty Ltd into allegations against Mr Stephen.

(10) All notes, memoranda, minutes or other documents relating to:

(a) the decision to direct Mr Stephen to attend an interview by Mr Hartnett;

(b) obtaining instructions given to send various items of correspondence via email to Mr Stephen on 8 December 2020;

(c) The decision made to instruct O’Reilly Workplace Lawyers to send ‘show cause’ letters to Mr Stephen in December 2020.

(11) All notes, memoranda, minutes or other documents relating to the complaint made by Mr Stephen that Mrs Fitzgibbons made defamatory remarks of and concerning Mr Stephen including that Mr Stephen:

(a) is “the devil”;

(b) “does cocaine”;

(c) launders money from the Robina Tavern;

(d) employs young girls so he can have his way with them;

(e) breaks into Mrs Fitzgibbons’ bank accounts.

(12) All notes, memoranda, minutes or other documents recording communications with Denise Fitzgibbons relating to:

(a) The decision to commence an investigation by Mr Stephen Mackie into allegations raised against Mr Damien Stephen by a number of former employees of Seahill Enterprises Pty Ltd, the timing of that investigation, and the decision to send notification of that investigation to Mr Stephen by letter on New Years’ Eve, 31 December 2021.

Mr Hartnett

(13) All notes, memoranda, minutes or other documents received by you or produced by you in the course of the investigation into allegations raised by Mr Damien Stephen including:

(a) The recordings of all interviews;

(b) All statements, whether in draft or signed form, prepared in respect of those interviews;

(c) All papers, notes or documents prepared or received during the course of the said interviews;

(d) A copy of your terms of reference together with a copy of all the material with which you were briefed to conduct the investigation;

(e) A copy of all correspondence emails or records of telephone attendances with any persons concerning the conduct of the investigation;

(f) A copy of any draft, interim, or final report.

[33] The Schedule of Objections document filed by OWL set out the basis for the claims of legal professional privilege. In relation to categories 1, 4, 7, 9 and 12, the basis of the claim was stated to be as follows:

“On or about 23 November 2020, OWL engaged Stephen Mackie (Barrister) for the dominant purpose of investigating allegations raised by former employees of Seahill … against Mr Stephen (Ex-Employee Allegations) to determine whether Mr Stephen engaged in misconduct, so that OWL could provide legal advice to Seahill regarding those findings, as stated in OWL’s engagement letter to Mr Mackie. Accordingly, and similar to above, the Respondent submits that any and all documents related to Mr Mackie’s investigation of the Ex-Employee Allegations are subject to legal professional privilege and cannot be required to be produced.”

[34] In relation to categories 2(a), 5 and 13, the basis of the claim was:

“On or about 18 November 2020, OWL directly engaged Arron Hartnett (Barrister) for the dominant purpose of investigating Mr Stephen’s Allegations to determine whether they are substantiated and if so, whether any amount to bullying or other unlawful conduct, so that OWL could provide legal advice to Seahill regarding those findings and potentially make use of the findings in this proceeding, as stated in OWL’s engagement letter to Mr Hartnett. The purpose of Mr Hartnett’s engagement was also communicated in a letter from OWL to Mr Stephen’s solicitors on 23 Decemebr 2020 (see Kirkman v DP World Melbourne Ltd [2016] FWC 605). It is noted that it is customary for the solicitors of a client to commission investigations so that the report and related documents are protected by legal professional privilege.

Accordingly, the Respondent submits that the dominant purpose of Mr Hartnett’s engagement was to provide legal advice to Seahill as well as for potential use in existing litigation (see Application by Mr Benedict Hardless [2019] FWC 2114). Accordingly, the Respondent submits that any and all documents related Mr Hartnett’s investigation of Mr Stephen’s Allegations are subject to legal professional privilege and cannot be required to be produced.”

[35] In relation to categories 2(b) and (c), 6, 8, 10 and 12 above, the basis of the claim was:

“Seahill and Mrs Fitzgibbons then jointly engaged O’Reilly Workplace Law (OWL) on 3 November 2020 (Joint Retainer), to provide Seahill and Mrs Fitzgibbons with legal advice and representation including in relation to the Application and Mr Stephen’s Allegations. The Joint Retainer and Retainer authorise OWL to communicate with and take instructions from Paulette McCormack, Director of Fresh HR Insights Pty Ltd (Fresh HR), Seahill’s previous representative in this proceeding, and author of the response of the Application dated 14 October 2020 (Response). Fresh HR has since OWL’s engagement acted as agent for Mrs Fitzgibbons and Seahill. OWL as accordingly been authorised by the Respondent and Seahill to take instructions from and disclose confidential information to Ms McCormack of Fresh HR in relation to this matter. Accordingly, Seahill and Mrs Fitzgibbons submit that any communication between OWL, Seahill and Mrs Fitzgibbons that Ms McCormack was copied into from at least 30 October 2020 onward is subject to legal professional privilege because their dominant purpose was to provide legal advice to Seahill and Mrs Fitzgibbons (see Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 64 [35]). Accordingly, those communications cannot be required to be produced.”

[36] In relation to categories 3 and 11 it is asserted that the documents sought are subject to legal professional privilege “as they were made in the course of obtaining advice from OWL”.

[37] It may be observed that there are some difficulties in understanding some of the bases of the claims of legal professional privilege in the Schedule of Objections document. In particular, the first two bases of the privilege claim set out above arise because the documents related to advice to be provided to Seahill. However, the claim of privilege is said to be made on behalf of Mrs Fitzgibbons as the personal respondent. It is not explained on what basis Mrs Fitzgibbons may claim a privilege held by Seahill.

[38] The issue of the orders for production sought by Mr Stephen and the objections made in the Schedule of Objections document was the subject of a hearing before the Commissioner on 11 February 2021. Mr Spence of counsel appeared, presumably on behalf of both Seahill and Mrs Fitzgibbons, although he did not expressly identify who he was appearing for. Nor did he subsequently clarify who was making the claims of privilege. The hearing did not complete but was adjourned to 15 February 2021 in order for evidence to be filed supporting the claims of privilege.

[39] Confusingly, on 12 February 2021, Ms McCormack filed a witness statement in which she said that she had been engaged to act as agent for Seahill and Mrs Fitzgibbons in relation to the proceeding and had been authorised by Mrs Fitzgibbons and Seahill to provide instructions to OWL in relation to the proceedings. She set out objections to certain categories of documents sought by Mr Stephen on the basis of a claim for legal professional privilege made by both Seahill and Mrs Fitzgibbons. However, the categories she objects to are not the same as in the Schedule of Objections document. Ms McCormack did not claim privilege on behalf of Seahill and Mrs Fitzgibbons in respect of categories 3, 8, 9, 11 and 13 set out above. She also made an additional claim of privilege as to the order sought directed to Seahill in respect of “All notes, memoranda, minutes or other documents relating to … [c]omplaints made by employees concerning the behaviour of Denise Fitzgibbons” (category 14).

[40] To add to the confusion, Ms O’Reilly swore and filed an affidavit on 12 February 2021 in which she said:

“I make this affidavit in support of OWL’s objection to the Commission making an Order for the production of any documents sought by the Applicant that are related to the independent investigations conducted by Arron Hartnett (Barrister) and Stephen Mackie (Barrister) regarding allegations raised by the Applicant and against the Applicant respectively … on the basis that those documents are subject to legal professional privilege.”

[41] Ms O’Reilly’s affidavit sets out the “specific documents sought by the Applicant that OWL objects to being subject to an Order” in a way that is different to both the Schedule of Objections document and Ms McCormack’s witness statement. The objection is only to categories 2(a), 5, 8, 9 and 13 above. The affidavit does not explain the basis upon which it is said that OWL may claim legal professional privilege over any of these documents.

The decision

[42] The decision does not set out which categories of documents the Commissioner considered were subject to a claim of legal professional privilege, or by whom. In his consideration of the privilege claim, the Commissioner noted that the case was somewhat unusual because Mrs Fitzgibbons was the sole director and owner of Seahill and thus effectively controlled Seahill. In that situation, the Commissioner said, the employer and the “person named” were so closely associated that it was difficult to foresee that they could respond to the matter independently of each other, and that it was hardly surprising that Mrs Fitzgibbons and Seahill would seek legal advice about how to properly respond to the litigation commenced by Mr Stephen. 3

[43] The Commissioner rejected the proposition that the adjournment of the matter on 11 November 2020 was the reason for Mrs Fitzgibbons and Seahill proceeding to conduct the Hartnett investigation, since the evidence supported the conclusion that the investigation was always going to occur. 4 The Commissioner found that the letters from OWL engaging Mr Hartnett and Mr Mackie to conduct their investigations made it clear that the obtaining of legal advice, and preparation for litigation, was the dominant purpose for the commencement of the two separate investigations and the intended subsequent production of work as part of those investigations.5 References in OWL’s various pieces of correspondence to the investigations being in alignment with the Commissioner’s “direction” did not constitute compelling evidence that this was the true reason or dominant purpose of the Hartnett investigation, nor did any requirement to investigate Mr Stephen’s bullying allegations under Seahill’s internal policy or pursuant to obligations under the Work, Health and Safety Act 2011 (Qld) (WHS Act) displace legal advice and preparation for litigation as the dominant purpose.6 Nor, the Commissioner found, did the description of the investigations as “independent” displace their dominant purpose since, in the ordinary course, investigations of this nature would be undertaken with an intention of affording procedural fairness.7 The Commissioner also said:

“[105] The fact of OWL referring to the outcomes arising out of investigations being considered by the Commission pursuant to s.789FF of the Act is another example of OWL seeking to justify to Mr Stephen and his lawyers that he should be interviewed. It was submitted for Mr Stephen that it would be an absurd outcome if Seahill were able to conduct an investigation that was privileged and then have the outcomes taken as a mandatory relevant consideration by the Commission.

[106] It is ultimately for the party to determine how it wishes to use its investigation. Whether any future decision of Mrs Fitzgibbons or Seahill about how they wish to use the report impacts on their continued ability to rely on privilege will have to be determined at the relevant time. The submissions concerning s.789FF have not persuaded me that the dominant purpose was not as stated by Mrs Fitzgibbons and Seahill.”

[44] The Commissioner found that the representation in OWL’s correspondence of 22 December 2020 that the “sole purpose” of Mr Hartnett’s investigation was to determine whether the allegations raised by Mr Stephen could be substantiated was “not correct on the facts”, but noted that the correspondence elsewhere stated that the investigation was for the provision of legal advice. 8 The Commissioner said that, as in the case of Bowker v DP World Melbourne Limited,9 the advice need not be limited to identifying and limiting legal exposure to Mr Stephen’s application in order for it to be the subject of privilege,10 and the Commissioner went on to say:

“[110] I have reached the same conclusions in relation to the Hartnett and the Mackie investigations. As was the case on Bowker, Seahill has sought to carry out its own investigations and make its own findings about what occurred. Seahill is entitled to elect to conduct workplace investigations in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege.”

[45] The Commissioner then stated the following conclusion:

“[111] I have concluded that when viewed objectively Mrs Fitzgibbons and Seahill have met the onus on them to establish that the dominant purpose for the creation of the documents sought was for the purpose of obtaining legal advice and also preparing for litigation. On that basis the documents are subject to privilege.”

[46] The Commissioner then turned to consider whether privilege had been waived on the basis that representations made about the nature and purpose of the Hartnett and Mackie investigations, including that they were independent investigations, were inconsistent with the maintenance of privilege. The Commissioner distinguished on its facts the Australian Industrial Relations Commission (AIRC) Full Bench decision in Brown v BlueScope Steel Limited 11 and said that Mr Stephen had had the benefit of robust legal advice, had made strenuous objections to participation in the investigations, and his investigation interview with Mr Hartnett had been adjourned.12 The Commissioner found that the fairness grounds that were determinative in Bluescope were not present here, that there was no evidence of any documents being created before OWL was engaged on 30 October 2020 for which it could be said that privilege was waived, and that the conduct engaged in by OWL and FHRI in making various representations to Mr Stephen or Mr Moore about the two investigations were not in all of the circumstances of such a nature that privilege had been waived by those representations.13

Appeal grounds and submissions

[47] Mr Stephen’s grounds of appeal were as follows:

1. The Commissioner erred in concluding that legal professional privilege applied to documents created in the course of separate investigations by Mr Hartnett and Mr Mackie, and by concluding that “the dominant purpose for the creation of the documents sought was for the purpose of obtaining legal advice and also preparing for litigation”, in that the Commissioner erroneously:

(a) failed to give sufficient weight to the representation by the solicitors who commissioned the Hartnett investigation that its “sole purpose” was something other than the purpose later claimed to be dominant;

(b) failed to correctly apply the test as to the meaning of “dominant purpose” to the facts as found;

(c) in the alternative to (b), misconstrued the test as to the meaning of “dominant purpose”;

(d) failed to find that the purposes of obtaining legal advice and preparing for litigation could not be dominant in view of the other purposes for conducting the investigation including:

(i) the requirement to investigate the Applicant's bullying allegations in accordance with the employer's own internal policy; and

(ii) obligations under the Work Health and Safety Act 2011 (Qld);

(iii) purported compliance with the email from Chambers dated 11 November 2020; and

(iv) the stated purpose to produce a document that answers the description of “any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body” in section 789FF so as to create a report the outcomes of which must be considered by the Commission as a mandatory relevant consideration.

2. The Commissioner erred in concluding that legal professional privilege over the investigation documents (if it existed) had not been waived by conduct inconsistent with the maintenance of legal professional privilege in that the Commissioner erroneously failed to properly take into account the unfairness arising from:

(a) the representations made to Mr Stephen (and his representatives) about the nature and purpose of the investigations; and

(b) the conduct in requiring (by purported “lawful direction”) that Mr Stephen be interviewed by Mr Hartnett or have his employment terminated, and that that requirement has never been withdrawn.

[48] Mr Stephen submitted in relation to the first appeal ground that the Commissioner erred in the observation in paragraph [110] of the decision that an employer is “entitled to elect to conduct workplace investigations in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege”. It was submitted that there is no element of employer election involved, that for a document to be subject to legal professional privilege the dominant purpose for its creation must be a purpose which attracts privilege, and that a subjective intention that a document or class of documents should be privileged is not determinative. The mere fact that a document is to be provided to solicitors for advice is not determinative of the purpose for which it is created, and Mr Stephen submitted that the Commissioner placed undue weight upon the letters provided by OWL to Mr Hartnett as evidence of dominant purpose. Further, it was submitted, paragraph [100] of the decision described the letters sent by OWL to Mr Hartnett and Mr Mackie as making clear that they were engaged for the purpose of conducting an investigation into the complaints and to provide a report to OWL to assist OWL to provide advice to Seahill, and thus disclosed no evident or intelligible basis for the conclusion that obtaining legal advice and preparing for litigation was the dominant purpose for the commencement of the investigations.

[49] Mr Stephen submitted that the representations made by OWL and FHRI in relation to the investigations reveal them to have had a range of mixed purposes, each of which were substantial and important purposes in their own right. The question should not have been whether these purposes “displace” legal advice and preparation for litigation as the dominant purpose, but whether legal advice and preparation for litigation could truly be said to be the dominant – that is, the ruling, prevailing, paramount or most influential – purpose. In particular, the purpose of providing a report required to be considered by the Commission under s 789FF(2) of the FW Act was a significant and important purpose which could not be subservient to the purpose of providing legal advice to one party, and was incompatible with the dominant purpose being for a privileged purpose. Conversely, it was submitted, the outcomes contained in an investigation report which was obtained for the dominant purpose of giving legal advice or preparation for litigation could not attain the special status of outcomes for the purposes of s 789FF(2).

[50] In relation to the second appeal ground, it was submitted that to the extent that the Commissioner decided that no waiver could apply because he assumed that no investigation documents existed at the time of the inconsistent representations, the Commissioner erred because the unfair conduct is ongoing and there is a continuing direction that Mr Stephen subject himself to questioning by Mr Hartnett. The unfair conduct in this case, which was different to that in Bluescope, included that the continuing representations that the investigation was independent, the abuse of authority to issue purportedly lawful directions that Mr Stephen subject himself to interview and to coerce his participation by threatening and then commencing show cause proceedings, the invocation of the authority of the Commission to encourage compliance with the interview direction, and the representations that the interview was for the purpose of the Workplace Harassment/Bullying Policy and the WHS Act, and the representations that the investigation report would be a mandatory relevant consideration pursuant to s 789FF(2). The Commissioner, it was submitted, erred in failing to properly identify the unfair conduct of the party claiming privilege and instead focused on the conduct of Mr Stephen. The fact that Mr Stephen sought legal advice and resisted participation in an interview were not relevant distinguishing factors.

[51] Mr Stephen submitted that permission to appeal should be granted in the public interest and the interest of justice because:

•  the decision is attended by sufficient doubt to justify its reconsideration;

•  the circumstances in which an employer may cloak a workplace investigation in legal professional privilege by engaging solicitors to conduct the investigation and provide advice to the employer as to its findings is a matter which has implications for the conduct of workplace investigations generally;

•  legal professional privilege is a right which is fundamental to the administration of justice, and upholding a claim of privilege where none in truth exists fetters the Commission’s power under s 590 of the FW Act to inform itself in such manner as it considers appropriate, and would give the respondents in the matter a forensic advantage contrary to s 577 of the FW Act; and

•  Ground 2 of the appeal concerns the scope and application of the fairness principle identified in Bluescope.

[52] Seahill and Mrs Fitzgibbons submitted that no appealable error has been identified in the Commissioner’s exercise of the discretion conferred by s 590(2)(c) of the FW Act and accordingly permission to appeal should not be granted and the appeal should be dismissed. In relation to Ground 1 of the appeal, they submitted that the Commissioner gave appropriate weight to the letters from OWL which engaged Mr Hartnett and Mr Mackie, which expressly stated that the purpose of their engagement was so that OWL could provide legal advice to Seahill and Mrs Fitzgibbons in relation to their findings. Mr Hartnett’s engagement letter also stated that the findings might potentially be made use of in Mr Stephen’s anti-bullying application proceeding. It was submitted that it was open to the Commissioner to make a conclusion as to the dominant purpose of Mr Hartnett’s and Mr Mackie’s engagement on the basis of those letters without providing further detail in the decision given the letters themselves were protected by legal professional privilege. There was no error in the conclusion that an employer is entitled to elect to conduct workplace investigations in a manner that ensures the product of the investigation is the subject of legal professional privilege since, it was submitted, an employer can elect to have their solicitors provide them with legal advice and, as a part of that process, have those solicitors engage the independent investigators who undertake the factual enquiries resulting in the investigation report/findings being subject to advice and/or litigation privilege.

[53] Subsequent representations did not, it was submitted, undermine the fact that the documents were created for a purpose protected by legal professional privilege. The additional purposes identified were, in any event, all for the purpose of the provision of legal advice in connection with Mr Stephen’s anti-bullying proceeding, and tied back to the dominant purpose of Mr Hartnett’s and Mr Mackie’s investigations. These representations, for the same reasons, were not inconsistent with the maintenance of legal professional privilege or bring about any waiver of that privilege. In requiring Mr Stephen’s attendance at an interview with Mr Hartnett, Mr Stephen and his legal representatives were put on notice that the investigation was for the purpose of providing legal advice to Seahill and Mrs Fitzgibbons and that privilege was claimed over the investigation report. Additionally, it was submitted, the representations made regarding the independence of the investigations, Seahill’s obligations under its internal workplace bullying policy and the WHS Act, and the relevance of the investigation report to the Commission’s consideration pursuant to s 789FF(2) of the FW Act were honest and reasonable representations, and did not constitute conduct that was unfair or inconsistent with the maintenance of the privilege of the investigations.

Consideration

Permission to appeal

[54] We have decided to grant permission to appeal because we consider that the appeal raises important questions about the operation of the doctrine of legal professional privilege in the context of anti-bullying proceedings under Pt 6-4B of the FW Act.

The anti-bullying jurisdiction and legal professional privilege

[55] We commence by making some observations about the Commission’s jurisdiction under Pt 6-4B. An application to invoke the Commission’s jurisdiction may be made under s 789FC by a worker who reasonably believes that he or she has been “bullied at work”. Section 789FD(1) defines when a worker is “bullied at work”, and relevantly makes it clear that, for the purpose of the Part, bullying is something carried out by an “individual” or a “group of individuals” while the worker is at work in a “constitutionally-covered business”. Thus, the alleged perpetrator of the bullying activity must be a natural person or persons, and will have a legal identity that is distinct from that of the business which, as defined in s 789FD(3), must in the private sector context be a constitutional corporation conducting a business or undertaking (within the meaning of the Work, Health and Safety Act 2001 (Cth)).

[56] The Commission’s procedures concerning anti-bullying applications distinguish between the alleged individual perpetrators identified in such an application, and the entity conducting the business. In the former case, rule 23A(3) of the Fair Work Commission Rules 2013 (FWC Rules) permits an alleged individual perpetrator (often referred to by the shorthand expression “person named”), if they wish, to file a response to an anti-bullying application within 7 calendar days of being served. Rule 23A(1), by contrast, requires the “employer or principal” (of the applicant or the alleged perpetrator, or both) to lodge a response within 7 calendar days.

[57] If an application has been made under s 789FC and the Commission is satisfied as to the matters specified in s 789FF(1)(b), it has a very broad discretion as to the order it can make under s 789FF(1) subject only to the requirements that the order serve the purpose of preventing the worker being bullied at work by the relevant individual(s) and that the order not require the payment of a pecuniary amount. Thus, the discretion extends to the selection of the target of the order. The order, for example, could apply to an individual who has been found to have bullied the applicant worker at work, and require the individual to cease the bullying conduct. An order could also apply to an employer or principal of the applicant worker and/or the individual found to have engaged in bullying conduct, and require that entity to make arrangements to ensure that bullying does not occur in the future (by, for example, separating the applicant worker and the individual perpetrator into different work areas).

[58] This analysis demonstrates that, under the statutory scheme in Pt 6-4B, the alleged individual perpetrator and the employer/principal will potentially be affected in different ways and will consequently have distinct interests.

[59] Section 789FF(2)(a) requires the Commission, in considering the terms of an order to be made (that is, after it has already been satisfied as to the matters in s 789FF(1)(b)), to take into account the final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another person or body of which the Commission is aware. It would seem to follow that if an employer/principal undertakes or commissions an investigation for the principal purpose of having the outcome of the investigation taken into account under s 789FF(2)(a), it cannot be the case that the investigation is intended to be confidential in nature since, in order to achieve its purpose, the Commission must be made aware of its outcome.

[60] Section 590 of the FW Act is a provision of general application and applies to proceedings under Pt 6-4B. Section 590(1) confers on the Commission a broad procedural power to inform itself in relation to matters before it in such manner as it considers appropriate, and is to be understood as operating in conjunction with s 591, which provides that the Commission is not bound by the rules of evidence and procedure. Section 590(2)(c) specifically empowers the Commission to inform itself by requiring a person to provide copies of documents or records or other information to the Commission. It is pursuant to s 590(2)(c) that the Commission, on application or of its own motion, may issue orders for the production of documents.

[61] Section 590(2)(c) specifically, and s 590 generally, operate subject to the doctrine of legal professional privilege. Legal professional privilege is 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. 14 No provision of the FW Act operates to abrogate legal professional privilege.15 Accordingly the Commission is not empowered under s 590(2)(c) 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 documents.

[62] There are two main categories of legal professional privilege. The first is legal advice privilege. It 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. Thus, not only is the advice of the lawyer to the client protected, but also any communication or document passing from the client to the lawyer (such as the request for advice or a set of factual instructions) for the purpose of the provision of the legal advice. The second is litigation privilege. It applies to a confidential communication between a client and another person or the client’s lawyer and another person, or the contents of a confidential document that was prepared, for the dominant purpose of the client being provided with professional legal services relating to a current, anticipated or pending Australian or overseas legal proceeding (including a proceeding before the Commission) in which the client is, was or may be a party.

[63] The following principles concerning legal professional privilege are relevant to the circumstances of this case:

(1) Legal professional privilege is a right belonging to the client, not the lawyer or any relevant third party. 16

(2) Legal professional privilege protects confidential communications rather than documents as such, and it is the nature of the communication within the document which determines whether or not the privilege attaches. 17

(3) A client making a claim of privilege carries the onus of establishing its claim. 18

(4) The “dominant purpose” for a communication is its “ruling, prevailing, paramount or most influential purpose”, and is not merely the “primary” or “substantial” purpose. 19

(5) A communication in a document brought into existence for the dominant purpose of a client being provided with professional legal services will be privileged notwithstanding that some ancillary or subsidiary use of the document was contemplated at the time. 20

(6) What is the dominant purpose is a question of fact, to be determined objectively. 21

(7) An appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence. 22

(8) Usually the purpose of a document will be that of the maker of the document, but in some cases it will be the purpose of the person who called the document into existence, such as a solicitor commissioning the provision of a technical report. 23

(9) Conduct inconsistent with the maintenance of the confidentiality which legal professional privilege is intended to protect may give rise to an imputed waiver of the privilege. Whether inconsistent conduct gives rise to waiver is informed by notions of fairness. Questions of waiver are matters of fact and degree. 24

The claims of legal professional privilege

[64] As we have earlier stated, the Commissioner’s decision did not identify the categories of documents that were the subject of claims of legal professional privilege. The decision dealt, in substance, with only two aspects of the claims, namely documents created in connection with the investigations which Mr Hartnett and Mr Mackie were commissioned to undertake. That appears to us to be a product of the fact that these were the only matters addressed in the submissions of the parties appearing before the Commissioner (and indeed, the position was the same in respect of the appeal submissions). As a result, it appears to us that the decision only dealt with categories 2(a), 5, 8, 9 and 13 of the claims for legal professional privilege set out in paragraph [32] above.

[65] The affidavit sworn by Ms O’Reilly discloses that both Mr Hartnett and Mr Mackie were engaged to undertake their respective investigations and report for the purpose of providing advice to Seahill. Insofar as the Schedule of Objections document filed by OWL on 10 February 2021, and Ms McCormack’s witness statement of 12 February 2021, claimed privilege on behalf of Mrs Fitzgibbons personally in respect of documents created in connection with the Hartnett and Mackie investigations (categories 2(a), 5, 8, 9 and 13), those claims could obviously not be upheld because, on Ms O’Reilly’s evidence, those investigations were not for the purpose of providing advice to Mrs Fitzgibbons and she had no personal right to claim a privilege held by Seahill. Insofar as Ms O’Reilly’s affidavit makes a claim for privilege over the same categories of documents on behalf of OWL, that claim similarly has no validity since any privilege does not belong to OWL.

[66] The only claim clearly made on behalf of Seahill is that contained in Ms McCormack’s witness statement filed on 12 February 2021. In relation to the Hartnett investigation, Seahill’s claim is, as earlier stated, confined to categories 2(a) and 5 (and does not include the brief of documents sent by FHRI to Mr Hartnett under category 8 nor the documents sought to be produced by Mr Hartnett in category 13). No objection is made in respect to category 9, which concerns the Mackie investigation. This limited claim made on behalf of Seahill appears to us, on the basis of Ms O’Reilly’s affidavit, to be the only valid claim for legal professional privilege that was made before the Commissioner.

Were the Hartnett investigation documents privileged?

[67] We consider that, to the extent that the Commissioner upheld Seahill’s claim for legal professional privilege, he was correct to do so. The Commissioner was correct to identify the correspondence passing between OWL and Mr Hartnett which commissioned Mr Hartnett to undertake his investigation as providing the proper basis upon which to identify the dominant purpose of that investigation. The instructions from OWL upon which Mr Hartnett, as counsel, acted in conducting his investigation disclose in our view the actual basis upon which it proceeded, notwithstanding what was subsequently represented to Mr Stephen as the purpose of the investigation. 25 Those instructions disclose, in each case, that the only purpose for the investigation (and the creation of documents in connection with the investigation) was to assist OWL to provide legal advice to Seahill and potentially to assist in the conduct of the anti-bullying proceedings. This made legal professional privilege squarely applicable.

[68] As Mr Stephen submitted, a number of the representations made to him by OWL and Ms McCormack about the purpose for the Hartnett investigation were inconsistent with them having the dominant purpose of providing legal advice. The inconsistent representations in this respect were:

(1) On 30 November 2020, OWL represented to Mr Stephen that the investigation was being conducted in accordance with directions made by the Commissioner.

(2) On 8 December 2020, FHRI represented to Mr Stephen that the investigation was for the purpose of investigating Mr Stephen’s bullying allegations.

(3) On 8 December 2020, OWL represented to the Commission that the investigation was an independent one undertaken in accordance with the purpose of the Commissioner’s adjournment of the proceedings.

(4) On 8 December 2020, FHRI also represented to Mr Stephen that the investigation was an independent one for the purpose of investigating Mr Stephen’s bullying allegations, was required pursuant to the WHS Act, and was an investigation of an internal workplace matter.

(5) On 8 December 2020, FHRI also represented to Mr Stephen that the investigation was required by Seahill’s Workplace Bullying/Harassment Policy, was independent, and was a normal workplace investigation.

(6) On 9 December 2020, OWL represented to the Commission that the investigation was conducted in accordance with Seahill’s Workplace Bullying/Harassment Policy, and was independent.

(7) On 10 December 2020, FHRI represented to ABL that the investigation was regarding Mr Stephen’s employment and related solely to the allegations raised by him.

(8) On 11 December 2020, OWL represented to ABL that the investigation was being conducted pursuant to, in effect, a direction of the Commission referable to s 789FF(2)(a) of the FW Act, was conducted in accordance with Seahill’s Workplace Bullying/Harassment Policy, and was independent.

(9) On 14 December 2020, OWL represented to ABL that the investigation was independent and in accordance with Seahill’s Workplace Bullying/Harassment Policy.

(10) On 22 December 2020, OWL represented to ABL that the sole purpose of the investigation was to determine whether Mr Stephen’s bullying allegations could be substantiated in accordance with the Commissioner’s purpose in adjourning the matter and was objective.

[69] It was only in response to contentions advanced on behalf of Mr Stephen by ABL that the investigation had a mixed purpose and that documents created in the course of the investigation were not privileged that OWL disclosed (on 17 December 2020 and 23 December 2020) that the investigation was for the purpose of providing legal advice and to assist in the conduct of the litigation.

[70] We make the following observations about these representations we have set out in paragraph [68] above. First, they were not consistent with the true basis upon which Mr Hartnett had been commissioned by OWL to undertake his investigation, as we have earlier described it, and to that extent were misleading.

[71] Second, a number of the represented purposes, if they were in fact the true and dominant purpose, would not be protected by legal professional privilege. If the investigation was undertaken for the dominant purpose of consideration under s 789FF(2)(a), it clearly could not have been intended to be confidential because the provision is predicated on the outcomes of the investigation being made known to the Commission. Further, if the dominant purpose was to conduct a fair, independent and transparent investigation pursuant to Seahill’s Workplace Bullying/Harassment Policy, there is no reason to consider that communications contained in documents associated with such an investigation were privileged merely because the investigation was being undertaken by a lawyer. As the AIRC Full Bench said in Brown v BlueScope Steel Limited, “[t]here is a very real difference between an independent inquiry and the provision of legal advice to a client”. 26 A procedurally fair workplace investigation initiated by an employer the outcome of which is intended to be made known to relevant employees in the workplace and which is to lead, where necessary, to corrective or disciplinary action is not one which ordinarily has a purpose confidential to the employer. We note that in his decision, the Commissioner paraphrased a statement made in Bowker v DP World Melbourne Limited27 when he stated the proposition that “Seahill is entitled to elect to conduct workplace investigations in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege”.28 That proposition was criticised by Mr Stephen on the basis that an employer cannot “elect” to cloak a workplace investigation in privilege where it does not have the requisite dominant purpose. However, Bowker makes it clear that the type of workplace investigation being referred to in the paraphrased statement is one that has the provision of legal advice as its dominant purpose.29 Bowker is not to be read as standing for the proposition that a workplace investigation which does not have the provision of legal advice and/or the provision of legal services in connection with litigation as its dominant purpose may nonetheless be subject to legal professional privilege merely on the basis that the investigation is undertaken by a lawyer.

[72] Third, it is apparent to us that the misleading representations about the purpose of the Hartnett investigation were made disingenuously for the purpose of justifying the purported employment direction to Mr Stephen that he submit himself to a compulsory interview with Mr Hartnett, at pain of dismissal. We do not consider that Seahill could, pursuant to its employment contract with Mr Stephen, issue him a binding direction to assist its lawyers in providing it with legal advice concerning its defence of litigation which Mr Stephen had himself initiated. A direction of this nature would not be lawful or reasonable, 30 since the contemplated compulsory interview would amount to an extra-curial interrogatory or deposition process under which Mr Stephen could be required, contrary to his legal interests in the litigation, to make admissions or to disclose confidential information in an unprotected way. It was obviously convenient for Seahill to mischaracterise the dominant purpose of the investigation in a way which provided a proper foundation for the direction to attend the interview. It may be accepted that if the purpose of the engagement of Mr Hartnett by Seahill was to conduct a fair, independent and transparent investigation of the type discussed in the preceding paragraph, then it would have been lawful and reasonable to direct that Mr Stephen undergo an interview for the purpose of that investigation. However, as we have earlier found, the engagement of Mr Hartnett was not for that purpose.

Was privilege waived?

[73] We agree with the Commissioner that, at least in respect of the valid claims of legal professional privilege that were made before him, privilege was not waived. However, our reasons for this conclusion differ somewhat from his.

[74] As earlier stated, we consider that Seahill, via OWL and FHRI, disingenuously misrepresented the purpose of the Hartnett investigation in order to persuade Mr Stephen that he could lawfully and reasonably be directed to submit to an interview with Mr Hartnett. In that way, it intended to induce Mr Stephen to provide information to Mr Hartnett which was to be used to assist in the provision of legal advice to Seahill about Mr Stephen’s anti-bullying application. If this conduct had been persisted to fruition, then we consider it would have been inconsistent with the maintenance of legal professional privilege. As a matter of fairness, Seahill could not on the one hand engage in misleading conduct in order to compel Mr Stephen to provide information to an investigation intended to aid by way of legal advice Seahill’s response to Mr Stephen’s anti-bullying application, but on the other hand expect to keep confidential its communications relating to that investigation. Contrary to the conclusion reached by the Commissioner, the circumstances here are in our view analogous to those considered in Brown v BlueScope Steel Limited, in which the AIRC Full Bench said:

“[12] Waiver of the privilege will be imputed where in the court’s judgment the client’s conduct is inconsistent with the maintenance of confidentiality. In this case representations were made to Mr Brown that he was participating in an “independent inquiry” when in fact BlueScope had retained Mallesons to advise it concerning its prospects in the litigation initiated by Mr Brown. There is a very real difference between an independent inquiry and the provision of legal advice to a client. It is almost inconceivable that Mr Brown, properly advised, would have allowed himself to be interviewed by the legal advisors to the opposing party in his s.170CE application. At the least it is likely he would have sought to have an advisor of some kind attend the interview with him.

[13] The fact that the conduct relied upon to found the imputation occurred before the report came into existence is relevant and significant. It is to be inferred that BlueScope, and probably Mallesons, took the view that the quality of the legal advice would be enhanced if Mr Brown’s own version of the relevant events was taken into account. For that reason the representations can be seen to have given BlueScope an advantage.

[14] … The representations should not have been made. Mr Brown should have been told the true purpose for which he was to be interviewed. It is quite likely that if he had known the true purpose the course of events might have been different.

[15] We have concluded that according to ordinary concepts of fairness BlueScope’s representations to Mr Brown are inconsistent with the maintenance of confidentiality. When the privilege was first claimed, in BlueScope’s letter of 2 May 2005, it was already too late to do so.

[16] We have reached the same conclusion as Commissioner Tolley. While the true purpose for which Mallesons was engaged was to provide legal advice, by its subsequent conduct BlueScope waived the right to claim privilege in relation to Mallesons’ eventual report…”

[75] However, Seahill did not ultimately persist in compelling Mr Stephen to be interviewed for the purpose of Mr Hartnett’s investigation. When Mr Stephen eventually attended for an interview on 22 December 2020, he was allowed to be accompanied by his lawyers. As earlier recounted, various objections made by Mr Stephen’s lawyers effectively derailed the interview prior to Mr Stephen providing any information of note. Mr Hartnett then agreed to adjourn the interview, and Seahill subsequently indicated that it would not “for the time being” press for Mr Stephen’s participation in an interview. At the hearing of the appeal, we were advised that Mr Hartnett had completed his investigation report, presumably meaning that any further issue of Mr Stephen being interviewed by him was now moot. In those circumstances, notwithstanding the initial course of conduct engaged in by Seahill and its representatives, we do not consider that privilege has been waived in respect of the Hartnett report.

[76] We note that counsel for Seahill and Mrs Fitzgibbons properly conceded that, in the event that the report prepared by Mr Hartnett is provided to the Commission for the purpose of consideration under s 789FF(2)(a), that would constitute a waiver of privilege in respect of documents relating to the Hartnett investigation.

Outstanding issues

[77] As earlier stated, the only valid objections to producing documents in connection with the Hartnett investigation based on legal professional privilege that were before the Commissioner were those made by Seahill in respect of categories 2(a) and 5. The Commissioner was correct in upholding these objections. No objections were made by Seahill in respect of categories 8 and 13, which equally concern the Hartnett investigation, and accordingly in a strict sense the Commissioner erred in upholding these objections. However, it remains open for Seahill to claim privilege with respect to these categories and, if that claim is made, it should be upheld for the same reasons as set out above unless some subsequent conduct of which we are not aware indicates a waiver of privilege.

[78] Seahill has also not yet claimed privilege with respect to the documents relating to the Mackie investigation covered in category 9. To the extent that the Commissioner considered that he had before him a valid claim of legal professional privilege in respect of the Mackie investigation documents, he was in error. As earlier stated, the affidavit of Ms O’Reilly makes it clear that the Mackie investigation was for the purpose of providing advice to Seahill only, and accordingly it was not open for Mrs Fitzgibbons or OWL to claim the benefit of this privilege. However, because the matter was fully argued before us, we are able to express a view about any claim of privilege that might be made by Seahill in the future. We consider, on the basis of Ms O’Reilly’s affidavit, that the dominant purpose for the Mackie investigation was to assist in providing legal advice to Seahill, with the result that confidential communications contained in documents sent to Mr Mackie for the purpose of the investigation are privileged. There is no evidence before us upon which a waiver of this privilege may be imputed.

[79] It appears to us that the remaining categories of documents the subject of objections made by Seahill or Mrs Fitzgibbons on the grounds of legal professional privilege (categories 1, 2(b)-(c), 3, 4, 6, 7, 10, 11, 12 and 14) have simply not been dealt with by the Commissioner (and were not the subject of any submissions before us). In relation to categories 1, 2(b)-(c), 4, 6, 7, 10, and 12, which concern “decisions” made by Seahill at various points in the chronology we have earlier set out, we do not consider that it has been demonstrated that the documents in these categories are privileged simply because the Hartnett and Mackie investigations were undertaken for a predominantly privileged purpose. Category 1, for example, seeks among other things, documents relating to the “decision” to commence the Mackie investigation. If any such documents exist, they necessarily came into existence prior to and independently of the commissioning of the Mackie report by letter dated 23 November 2020, since the “decision” referred to was presumably made before this. The affidavit of Ms O’Reilly simply does not address this objection because it was concerned only with categories 2(a), 5, 8, 9 and 13. Accordingly, it will be necessary for the Commissioner to determine the outstanding objections, if they are pressed. Otherwise, the orders for production of the documents in these categories should be issued.

Conclusion

[80] We order as follows:

(1) Permission to appeal is granted.

(2) Insofar as the Commissioner upheld the claims of legal professional privilege with respect to the documents in categories 2(a) and 5, the appeal is dismissed.

(3) Insofar as the Commissioner upheld claims of legal professional privilege with respect to the documents in categories 1, 2(b)-(c), 3, 4, 6, 7, 8, 9, 10, 11, 12, 13 and 14, the appeal is upheld.

(4) If a claim of legal professional privilege is made by Seahill in respect of categories 8, 9 and 13, the Commissioner shall determine that claim consistent with our reasons for decision.

(5) The Commissioner shall determine the claims of legal professional privilege in respect of the documents in categories 1, 2(b)-(c), 3, 4, 6, 7, 10, 11, 12 and 14, to the extent that these claims are pressed.

VICE PRESIDENT

Appearances:

Mr G Rebetzke of counsel for the appellant.
Mr T Spence of counsel for the respondent.

Hearing details:

2021.

Sydney (via video-link).
25 March.

Printed by authority of the Commonwealth Government Printer

<PR729673>

 1   There were also objections to the production of some other categories of documents sought on other bases.

 2   [2021] FWC 972

 3   Ibid at [97]

 4   Ibid at [98]

 5   Ibid at [100]

 6   Ibid at [101]-[102]

 7   Ibid at [104]

 8   Ibid at [107]

 9   [2015] FWC 7887

 10   [2021] FWC 972 at [108]-[109]

 11   [2005] AIRC 955, PR964604

 12   [2021] FWC 972 at [112]-[117]

 13   Ibid at [117]-[118]

 14   The Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49, 213 CLR 543 at [9]-[11]

 15   Kirkman v DP World Melbourne Limited [2015] FWCFB 3995 at [23]

 16   Mann v Carnell [1999] HCA 66; 201 CLR 1 at [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ

 17   Commissioner, Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3, 188 CLR 501 at 515 per Dawson J, 525 per Toohey J, 542 per Gaudron J, 552 per McHugh J, 569 per Gummow J

 18   Grant v Downs [1976] HCA 63, 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ; Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247, 225 ALR 266 at [30]

 19   Grant v Downs [1976] HCA 63, 135 CLR 674 at 678 per Barwick CJ; Federal Commissioner of Taxation v Spotless Services Ltd [1996] HCA 34, (1996) 186 CLR 404 at 416 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ; Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247, 225 ALR 266 at [30]

 20   Esso Australia Resources Limited v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 at [58] per Gleeson CJ, Gaudron and Gummow JJ; Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247, 225 ALR 266 at [30]

 21   Commissioner of Taxation v Pratt Holdings Pty Ltd [2005] FCA 1247, 225 ALR 266 at [30]; AWB Limited v Cole [2006] FCA 571, 152 FCR 382 at [110]

 22   Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122, 136 FCR 357 at [35]-[36] per Finn J; AWB Limited v Cole [2006] FCA 571, 152 FCR 382 at [107]

 23   Mitsubishi Electric Pty Ltd v Victorian Workcover Authority [2002] VSCA 59, [2002] 4 VR 332 at [14]

 24   Mann v Carnell [1999] HCA 66, 201 CLR 1 at [29] per Gleeson CJ, Gaudron, Gummow and Callinan JJ; Krok v Commissioner of Taxation [2015] FCA 51 at [27]

 25   See Brown v BlueScope Steel Limited [2005] AIRC 955, PR964604 at [9]

 26   Ibid at [12]

 27   [2015] FWC 7887 at [30]

 28   [2021] FWC 972 at [110]

 29   [2015] FWC 7887 at [30]

 30   See The King v Darling Island Stevedoring and Lighterage Company Limited; Ex Parte Halliday and Sullivan [1938] HCA 44, 60 CLR 601 at 621-2 per Dixon J