Using external lawyers may not protect investigation reports, FWC ruling shows
An employer's workplace investigation report lost legal privilege protection despite being conducted by a lawyer-engaged barrister, the Fair Work Commission ruled.
Cohealth Limited learned this lesson the hard way when Deputy President Farouque ordered the organization to hand over its confidential investigation report to the employee it investigated and later dismissed. The decision, issued on October 31, 2025 and updated on December 4, 2025, challenges a common assumption among HR departments about protecting sensitive workplace investigations.
The case involved James Crafti, who worked as a Community Health Worker at Cohealth's Innerspace facility in Collingwood, Victoria, from March 18, 2019, until his dismissal on June 19, 2025. The trouble began on June 26, 2024, when a client made a verbal complaint about an interaction with Crafti.
Cohealth started an internal investigation in early July 2024, interviewing four employees and providing Crafti with summaries of witness statements. But when Crafti disputed the investigation process and claimed he was being denied procedural fairness under the enterprise agreement, Cohealth contacted its lawyers at Lander & Rogers on August 2, 2024.
The law firm then engaged barrister Daniel Fawcett to conduct what it described as a factual investigation. The engagement letter stated: "To enable us to provide legal advice to cohealth, we have been...
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