Main purpose of investigation must not relate to employee discipline: FWC
A recent Fair Work Commission decision confirms that employers cannot always withhold workplace investigation reports merely by asserting legal professional privilege.
The ruling clarifies that legal professional privilege only applies if the dominant purpose of an investigation is to obtain legal advice and that privilege may be waived if employers disclose too much evidentiary detail. This serves as a timely reminder for organisations to carefully document investigation purposes and limit disclosures to what is strictly necessary.
In the recent decision of James Crafti v. Cohealth Limited [2025] FWC 3285, the Fair Work Commission (FWC) considered whether a law firm engaging an investigator to conduct a legally privileged investigation was for the dominant purpose of providing legal advice and whether privilege had been waived over the report. The FWC found that the dominant purpose of the investigation was not to provide legal advice and, in any event, the employer had waived privilege over the report.
The decision serves as a cautionary reminder that engaging investigators through legal representatives does not guarantee that the investigation will be protected by privilege.
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