Applicant v Respondent

[2016] FWC 5006

[2016] FWC 5006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Applicant
v
Respondent
(U2016/769)

COMMISSIONER CLOGHAN PERTH, 1 AUGUST 2016

Application for relief from unfair dismissal - production of documents.

[1] The Fair Work Commission has received an application by an Applicant (Applicant) seeking a remedy for alleged unfair dismissal by a Respondent (Respondent or Employer).

[2] On 4 February 2016, the Respondent forwarded to the Applicant notice of termination of his employment. The relevant parts of the correspondence are as follows:

“As you are aware, [the Respondent] has conducted an investigation into allegations that you engaged in sexual harassment toward a number of cabin crew members.

The investigation has found that the following allegations were substantiated:

1. You showed sexually explicit images of a crew member in intimate positions to other fellow crew members while in flight and on an overnight. Some of these images…[deleted].
2. On multiple occasions you made inappropriate comments of a sexual nature to or within hearing of fellow cabin crew members.
3. You made unwanted sexual advances to fellow cabin crew members.

The full list of substantiated allegations against you, were outlined in our correspondence to you dated 21 January 2016.

I note your concern regarding the credibility of the witness statements and reiterate that when considering the totality of the evidence obtained in investigating this allegation; the investigation found that on the balance of probabilities, your conduct shows a pattern of behaviour that was deliberate and of a sexual nature. The allegations put to you have been from multiple witnesses on multiple occasions who found your behaviour to be unwelcome and uninvited.

Your responses has been to wholly and categorically deny the allegations, with no attempt to fulsomely engage with the company through the investigation or apologise for any misunderstanding of your behaviour, even if you deny it.

I consider your failure in this regard to amount to dishonest conduct and to be particularly serious given the opportunities you have been provided to be open, honest and fulsome in your responses, that you were aware the investigation was initiated as a result of an employee complaint, and your leadership role in the Company.
…
We have given serious consideration to the nature and details of the concerns put to you and your written responses dated 30 December 2015, 4 January 2016, 11 January 2016 and 25 January 2016. We confirm you have continued to decline to attend the meetings we have invited you to attend, and therefore we have based our findings and decision on the information available to us.

In light of all the circumstances, a decision has been made to terminate your employment effective immediately without notice for serious misconduct.”

[3] The Applicant has sought the production of documents, pursuant to s.590(2)(c) of the FW Act, on 10 and 11 May 2016. Following communication between the parties and a conference in the Commission, the classes of documents sought have been reduced to the following:

“1. Any investigation summary into the matters for which the Respondent dismissed the Applicant (Investigation), including all drafts of any Investigation Summary.

2. Any reports or complaints from any of the Respondent’s employees about the matters that were the subject of the Investigation.

3. All records, regardless of format or media that record any discussions with any of the Respondent’s employees who were interviewed in the course of the Investigation.

4. All email communications about the Applicant’s alleged conduct or the Investigation with any person who was interviewed as part of the Investigation.

5. Cabin Crew list for 1 August 2015 flight on which the Applicant worked.

6. Any photographs or video recordings provided to the Respondent by [deleted] incidental to any complaint about the Applicant’s conduct, or to any statement given in the course of the Investigation.”

[4] Due to the exchange of information between the parties and clarification, the Applicant no longer seeks an order with respect to the documents in 2, 5 and 6.

[5] The Respondent objects to an order being made by the Commission with respect to the documents in 1, 3 and 4 on the basis that they are legally privileged (LPP) and were created for “the dominant purpose of receiving legal advice and in contemplation of litigation”. 1 With respect to the documents in 4, the Respondent asserts, with little force, that “it would be oppressive”2 for the Respondent to comply with such an order as sought.

[6] Further, and finally, the Respondent submitted that the order for the documents was nothing more than a “fishing expedition”. That contention will be discussed later in this decision.

[7] In view of the Applicant seeking an order for such documents and the Respondent’s LPP objection, the hearing into the substantive merits of the application was deferred until the LPP objection is determined.

[8] In view of the nature of the unfair dismissal, these interlocutory proceedings and documentary material provided to the Commission, I find that representation by lawyers would enable the matter to be dealt with efficiently. Further, I find that it would be unfair not to allow the parties to be represented by lawyers because the parties are unable to represent themselves effectively. Having been satisfied that the requirements of s.596(2) of the FW Act had been met, permission of the parties to be represented by lawyers was granted.

[9] At the hearing into the documents sought, and its resistance on LPP grounds, the Applicant was represented by Mr S Heathcote of Counsel.

[10] The Respondent was represented by Mr I Neil SC. Evidence on behalf of the Respondent was given by Witness B, the Respondent’s Workplace Relations Advisor and the person who carried out an investigation into the Applicant’s conduct.

[11] This is my decision and reasons for decision with respect to the order for documents sought by the Applicant in 1, 3 and 4 in paragraph [3] above.

RELEVANT BACKGROUND

[12] The Applicant commenced employment with the Respondent in January 2011 as a member of cabin crew.

[13] In or around June 2014, the Respondent promoted the Applicant to Cabin Supervisor.

[14] As a Cabin Supervisor, the Applicant was responsible for the supervision of work undertaken by cabin crew both on the ground and in the air.

[15] Over the course of his employment, the Applicant generally received positive feedback regarding his performance.

[16] The Applicant received two letters of commendation by the Respondent.

[17] In late 2011, the Applicant was the subject of a complaint by a co-worker for which he received a written warning.

[18] The Applicant and Witness A entered into a sexual relationship in April/May 2014. Witness A is also an employee of the Respondent.

[19] The Applicant and Witness A, as part of their relationship, sent each other sexually explicit messages and images.

[20] The sexual relationship between the Applicant and Witness A ceased in or around December 2014. However, it appears that both persons continued to send, or receive, sexually explicit text messages from each other.

[21] In May 2015, Witness A sent the Applicant three (3) photographs of herself. Witness A was naked in each of the photographs.

[22] In July 2015, Witness A sent the Applicant four (4) photographs and two (2) short videos of herself.

[23] On 29 October 2015, Witness A made an Equal Employment Opportunity (EEO) complaint to the Respondent which, in turn, led to an interview on 2 November 2015 with a Workplace Relations Advisor but not Witness B. Witness B subsequently carried out an investigation into the complaint.

[24] For my purposes, the essence of Witness A’s EEO complaint is that the Applicant was showing other employees of the Respondent photographs and videos of Witness A. Further, it is alleged that the Applicant made comments about Witness A to other work colleagues.

[25] On 11 November 2015, the initial Workplace Relations Advisor contacted Witness B and referred the EEO complaint to her for investigation.

[26] Witness B’s evidence is that she immediately began the investigation.

[27] Witness B’s written evidence is as follows:

“It quickly appeared to me, upon my initial review of the complaint, that I would need to interview a number of witnesses to determine if allegations needed to be put to the alleged respondent in [Witness A’s] complaint, [the Applicant], another [Respondent] employee.

I also thought at that time that potential legal proceedings in relation to this matter could arise in the future, whether by [the Applicant] or by some other party, depending on the outcome of the investigation, and I wanted to get legal advice on behalf of [Respondent] from [name deleted] in-house employment law counsel in relation to those possible proceedings…

Over the course of the following weeks I interviewed a number of [Respondent] employees in relation to the complaint. I made notes of my interviews with those employees and produced an investigation summary from those notes (collectively, the Investigation Documents). The prevailing purpose for which I produced the Investigation Documents was to obtain legal advice on behalf of [the Respondent] from [name of in-house lawyer] in relation to the conduct of the investigation generally, and whether allegations could and should be put to [the Applicant] at the conclusion of the investigation. I sought and obtained advice from [name of in-house lawyer] throughout the course of the investigation, including by using the Investigation Documents and their contents.

By 18 December 2015, I had conducted a number of interviews in relation to this matter.

At this point, I spoke with my manager at the time, [name deleted]. I also spoke to [name of in-house lawyer] to seek advice in relation to the potential allegations that could be put to [the Applicant]. Before sending the letter of allegation, I sought and obtained legal advice from [name of in-house lawyer] in relation to the letter.”

[28] On 18 December 2015, Witness B forwarded to the Applicant, correspondence which commences:

“As you are aware, [the Respondent] is conducting an investigation into allegations that you have engaged in sexual harassment toward a number of cabin crew members in breach of the [the Respondent’s]…Equal Employment Opportunity Policy (EEO) and [the Respondent’s]…Code of Conduct (Code of Conduct).”

[29] On 31 December 2015, the Applicant was advised of further allegations that had arisen during the course of the Respondent’s investigation.

[30] On 4 February 2016, the Applicant was summarily dismissed for serious misconduct.

NATURE OF DOCUMENTS SOUGHT BY APPLICANT

Order 1

[31] There is no dispute that Witness B prepared, in the course of her investigation, an “Investigation Summary”. I am unaware of whether there are any drafts of the summary.

Order 3

[32] Witness B gave evidence that she conducted a number of interviews during her investigation and kept a record of those interviews. 3

Order 4

[33] Witness B gave evidence that in the course of her investigation, she created and received a number of emails associated with the conduct of her interviews. 4

CONSIDERATION

Principles

[34] Both parties agreed that the principles set out by Her Honour Kenny J in The Commissioner of Taxation v Pratt Holdings Pty Ltd (Pratt)[2005] FCA 1247 at paragraph [30] are apposite. No objection was taken to Mr Heathcote’s short but, as he describes, incomplete summary of the principles as follows:

“(a) the party claiming privilege must prove its claim to privilege;

(b) if the dominant purpose for which a document comes into existence is to get legal advice, the document is privileged;

(c) the purpose for which a document came into existence is a question of fact and, the existence of multiple purposes, and the nature of the document(s) in question, may make that factual determination difficult;

(d) the author’s evidence about dominant purpose is not conclusive, and the character of the documents may “illuminate the purpose for which they were brought into existence”;

(e) the time at which ‘dominant purpose’ is determined is the time the document came into existence;

(f) the fact that the document was provided to the solicitor from whom advice was sought is not determinative of purpose;

(g) the dominant purpose is the “ruling, prevailing, paramount or most influential purpose”;

(h) “where two purposes are of equal weight, neither is dominant in the relevant sense. Hence: (a) a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose; and (b) if the decision to bring the document into existence would have been made irrespective of any intention to obtain legal advice, the purpose is of obtaining legaladvice cannot be the dominant purpose for the making of the document”;

(i) courts may opt to examine documents that are communications to ascertain the purpose for which they were created;

(j) a document that records the substance of a privileged communication between a client and legal advisor is protected;

(k) a court may find that parts, but not all of the document, were created for the same purpose, and some parts of the document may therefore be privileged while other parts may not; and

(l) documents commissioned from 3^rd parties for relevant reasons may also attract privilege.”

[35] Both parties also referred to the Decision of Kovacic DP in Kirkman v DP World Melbourne Ltd [2016] FWC 605.

CONSIDERATION

Introduction

[36] The power of the Commission to order the production of documents can be found at s.590(2)(c) of the FW Act.

[37] In exercising its discretionary power pursuant to s.590(1) of the FW Act, the Commission must do so “in relation to a matter before it in such a manner as it considers appropriate”.

[38] Further, and importantly, when exercising its discretionary power pursuant to s.590(1), the Commission must do so in a manner which is fair and just and is quick, informal and avoids unnecessary technicalities 5.

[39] The matter before the Commission is an Applicant who has been summarily dismissed for the reasons set out in paragraph [2].

[40] Due to the manner in which this application for the production of documents has come before the Commission, I have already received the:

• Applicant’s Outline of Argument;



• Applicant’s Statement of Facts;



• various documents and short videos submitted by the Applicant;



• Respondent’s Statement of Facts;



• Respondent’s response to Applicant’s Statement of Facts;



• seven (7) witness statements from Respondent’s witnesses;



• various documents submitted by the Respondent; and



• an Agreed Statement of Facts.

[41] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”.

[42] Section 387(a) of the FW Act essentially asks the question whether there was a valid reason for the employee’s termination of employment.

[43] From the material provided by the parties, the Applicant was terminated due to his conduct.

[44] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 6. Further,

“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 7

[45] Accordingly, it is necessary and fundamental for the Commission to determine whether the alleged conduct took place.

[46] The Applicant’s Outline of Argument states:

“1.11 The Applicant expressed various concerns about the manner in which the investigation was being carried out including, but not limited to, the Respondent’s refusal to allow him to have access to records relating to critical dates to which the allegations referred.

1.12 Because of the Respondent’s refusal to allow him to access relevant records, the Applicant was obliged to respond to the allegations based entirely on his memory of events that may have taken place almost a year earlier.

1.13 He also expressed concern about the apparently inconsistent treatment he experienced by comparison with the way the Respondent dealt with [deleted] and [Witness A] for conduct that was not materially different from some of the conduct of which he was accused.”

[47] The material submitted to the Commission appears, at this time, to demonstrate that the Applicant’s dismissal can be reduced to whether there was a valid reason for his termination of employment and an argument of comparability of treatment. This is expressed by the Applicant in his Outline of Argument as follows:

“Valid Reason (connected with capacity or conduct)

a. The Respondent did not have a valid reason for dismissing the Applicant because he had not engaged in the conduct of which he was accused.

b. Given that the Respondent dismissed the Applicant because of alleged misconduct, the Respondent is obliged to prove that the Applicant engaged in the conduct for which it dismissed him.

Other matters

3.11 [deleted] engaged in conduct that was substantially the same as the conduct for which the Applicant was dismissed i.e. sexually harassing the applicant and, in doing so, breaching the Policy and the Code.

3.12 [Witness A] engaged in conduct that breached the Policy and the Code when she sent the Applicant [deleted].

3.13 Neither [deleted] nor [Witness A] has been suspended or dismissed.”

Relevance of documents sought

[48] The Applicant was terminated following an investigation into various allegations.

[49] The Applicant, it appears, has confined his order for the production of documents only to the investigation which led to his dismissal.

[50] In my view, from the material provided, this request for documents is not a “fishing expedition”, but appropriately narrow, and relevant, to his dismissal.

Value

[51] The value of the documents sought by the Applicant can be considered as follows.

[52] Firstly, the documents presumably form part of the “foundation” that led to the allegations being put to the Applicant and seeking his response.

[53] Secondly, the documents led to the Respondent concluding:

“…the investigation found that on the balance of probabilities, your conduct shows a pattern of behaviour that was deliberate and of a sexual nature. The allegations put to you have been from multiple witnesses on multiple occasions who found your behaviour to be unwelcome and uninvited.” (termination letter)

[54] In summary, the allegations were serious and found, on the balance of probabilities, to be proved by the Respondent’s decision maker. It would appear that the Respondent acted on this material, and accordingly, the value of the documents sought by the Applicant appear to be relevant, prominent and of high value. Documents and which ultimately led to the Applicant’s dismissal.

Timeliness

[55] Witness A made an EEO complaint on 27 October 2015.

[56] The investigation into the complaint commenced on 11 November 2015.

[57] Putting aside the proposed witness statement of Witness A, the remaining witnesses are proposing to give evidence in relation to events alleged to have occurred on:

• 22 and 23 December 2014;



• May or June 2015;



• 31 July 2015;



• August or September 2015;



• 23 October 2015; and



• 27 November 2015.

[58] The witness evidence, to be given in the substantive hearing, is all dated 17 June 2016.

[59] The Commission has no criticism of the timeliness of the witness statements. However, the fact is that there is an untimeliness of the events alleged to have occurred in paragraph [57] above did not come to light until sometime after 11 November 2015 (with the exception of 27 November 2015).

Investigation

[60] At the initial interview with the Respondent’s Workplace Relations Advisor on 2 November 2015, it sets out that the EEO complaint is to be, “investigated in accordance with [Respondent’s] policies, and any relevant enterprise agreement”.

[61] I have been provided with the Respondent’s Code and EEO policies, however, there is no reference to LPP. Consequently, I am unsure whether LPP is part of the investigation process or not.

[62] Further, it states that the “Investigator may also have to provide details of your [Witness A’s] complaint to any witnesses to establish whether they can corroborate a particular version of events”. I am unsure whether this has occurred, and if so, whether Witness B in doing so, waived privilege.

[63] Finally, having read the Record of Interview of 2 November 2015, Witness A states that she was alerted to the Applicant showing photographs to other crew members by a “friend”. This “friend” encouraged Witness A to “come forward”. This “friend” is a proposed witness and has provided the Commission with a written witness statement.

[64] I now turn to the Respondent’s LPP argument.

LPP

Respondent

[65] The Respondent submits that its Workplace Relations Advisor (Witness B) “believed that there was the possibility of legal proceedings arising in the future in relation to this matter…and decided to get legal advice on behalf of the Respondent from the Respondent’s in-house employment law counsel”. 8

[66] For this submission, the Respondent relies upon the evidence of Witness B.

[67] In the course of the investigation, Witness B interviewed a number of the Respondent’s employees in relation to the EEO complaint. The prevailing purpose for which these documents were produced was to obtain legal advice on behalf of the Respondent from [in-house counsel] in relation to the conduct of the investigation generally and whether the allegations could and should be put to the Applicant at the conclusion of the investigation” 9 (my emphasis).

[68] For this submission the Respondent relies upon the evidence of Witness B.

[69] Throughout the course of the investigation, Witness B states that she, “sought and obtained legal advice from [in-house counsel], including by using the investigation summary and records of interview”. 10

[70] In conclusion, the Respondent states “as such, the investigation summary and records of interview were produced for and used to obtain legal advice from the Respondent’s in-house counsel over the course of the investigation, and therefore subject to legal professional privilege” 11 (my emphasis).

Applicant

[71] The Applicant submits:

“(a) the documents described in classes 1, 3 and 4, came into existence for the dominant purpose of conducting a factual investigation into a matter with potential for disciplinary consequences;

(b) notwithstanding any secondary purpose to obtain legal advice, the investigation and the documents that arose from it, were necessarily going to be produced regardless of whether [Witness B] opted to speak to the Respondent’s in-house lawyer about the matter; and

(c) the Respondent’s claim, and [Witness B’s] evidence about her purpose is a mere contrivance to avoid disclosure of material that is potentially prejudicial to its case.”

Evidence

[72] The Respondent carries the onus of establishing its claim for LPP, whether by “evidence as to the circumstances in which the documents were brought into existence, reference to the nature of the documents, or by argument”. 12

[73] Witness B commenced working for the Respondent in July 2006.

[74] Witness B has 15 years’ experience in human resources, including internal complaints.

[75] In her current role, Witness B’s core responsibilities include “…assisting leaders with disciplinary matters and conducting investigations into complaints made by employees in relation to various workplace relations issues, such as Equal Employment Opportunity (EEO) complaints”. 13

[76] Witness B has given written evidence that on her initial review of the EEO complaint, she would have to interview a number of witnesses and, “I also thought at that time that potential legal proceedings in relation to this matter could arise in the future, whether by the Applicant or some other party, depending on the outcome of the investigations, and I wanted to get legal advice on behalf of [Respondent] from [in-house counsel] in relation to those possible proceedings”. 14

[77] In cross examination, Witness B gave evidence that:

• her role involves conducting workplace investigations; 15



• she conducts approximately 50 investigations each year; 16


• irrespective of whether she received legal advice, she would have conducted an investigation; 17
  
• in conducting the investigation , she would have interviewed witnesses; 18


• at the interviews, she would have taken notes; 19
  
• she collected statements which are a “record of interview” in response to questions asked by Witness B; 20


• ordinarily, a summary of the investigation is found in the “letter of allegation and any findings letter”; 21



• she sought legal advice, in the course of this application, because of the particular legal risks the EEO complaint posed; 22



• proceedings in the Commission was identified as one of the potential risks; 23


• with any employee who is dismissed following disciplinary investigation, proceedings in the Commission is a potential outcome; 24


• the potential of proceedings in the Commission are less in some disciplinary matters than in the Applicant’s application; 25


• in the Applicant’s application, the Respondent had a concern, “because there was contradictory evidence about whether the events occurred”; 26


• of the 50 investigations that she carries out, very few result in termination of employment; 27 and
  
• the decision to terminate the Applicant’s employment was made by the Manager, Cabin Crew 28.

[78] Finally, Witness B was unable to say approximately on how many of the 50 investigations she obtains legal advice. In evidence, Witness B stated that it was not every investigation, nor was it just the Applicant’s investigation. When asked whether it was more than 10 investigations, she preferred to not speculate but advised that it was “not many”. 29

[79] Overall, after listening to Witness B’s evidence, I had some unease both with respect to her evidence, examination in chief and cross examination. If Witness B only seeks legal advice relatively on few occasions, her evidence was hesitant and unconvincing as to how, when and for what purpose she was seeking legal advice.

[80] In Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122 at paragraph [36], Finn J said:

“…Where the issue, as here, is with whether a document attracts legal advice privilege at the time it is brought into existence…the obvious starting point is with what was the intended use (or uses) of that document which accounted for it being brought into existence…In answering that question – which is a question of fact…- attention necessarily must focus on the purpose (or purposes) of the person who created the document…”

[81] Witness B’s function for the Respondent is to carry out disciplinary investigations. The documents, subject to alleged LPP, came into existence as a consequence of Witness B conducting the disciplinary investigation into the EEO complaint.

[82] There is nothing remarkable in Witness B’s “thought” process that, “potential legal proceedings…could arise in the future” with respect to the Applicant or “by some other party”. 30

[83] Witness B states, in her written evidence, that “I wanted to get legal advice [from in-house counsel] in relation to those possible proceedings”. 31 This was referred to in examination in chief and Witness B responded, “because if the actions were substantiated following the investigation then potentially it would result in termination and obviously they could bring unfair dismissal”.32

[84] I find nothing untoward or uncommon with an “investigator” getting advice on potential litigation in the future. However, Witness A conflates and extrapolates her “thought” process into the “prevailing purpose” that the creation of the documents was “to obtain legal advice…in relation to conduct of the investigation generally and whether allegations could and should be put to [the Applicant] and the conclusion of the investigation”. 33

[85] I find that the documents came into existence for the dominant purpose of the inquiry into the EEO complaint made by Witness A.

[86] Witness B’s evidence is that she was seeking to understand case law, the potential risk in proceeding [with the investigation] and, “what did I need to consider in proceeding with the various interviews and then as I conducted the investigation”. 34

[87] In my view, Witness B, having discussed the above subjects with the in-house lawyer, proceeded with the investigation. It is a “long bow” to then assert that the documents, which were ultimately produced as part of the investigation, were for the purposes of obtaining legal advice. From the beginning, the documents were created for the purpose of enquiring into the EEO complaint.

[88] As part of any interview associated with a complaint, there are “housekeeping” matters. Included in those “housekeeping” matters is the requirement of the interviewee to be “open, honest and fulsome” in their responses. This housekeeping advice is appropriate and exemplary. The interview notes are most probably the closest to what has transpired. The advice to be “open, honest and fulsome” is not “legal advice” as such, it is common sense and part of an employee’s duty and consistent with the Respondent’s employment related policies.

[89] As I understand Mr Heathcote’s argument, he does not object to the witnesses being assisted by counsel in preparation of their witness statements. Mr Heathcote’s objection is that the Applicant is being denied the opportunity to compare the Record of Interview by the Investigator (Witness B) with the only version of events which he has – their witness statements.

[90] While there should be overlapping narrative between records of interview and witness statements, each may have a different focus. It is this possible change in focus and facts that Mr Heathcote wishes to examine with the respective witnesses.

[91] When attempting to ascertain the purpose for which documents sought were created, the totality of the evidence is that:

• the person creating the documents was an employee of the Respondent who had the responsibility to carry out an investigation into an EEO complaint;



• the person carrying out the investigation, Witness B, is an experienced Human Resources practitioner who carries out approximately 50 investigations each year;



• Witness B could not say how often she seeks legal advice in relation to an investigation;



• the legal advice was from in-house counsel;



• I have no evidence in relation to dates or actual documentation with respect to the legal advice; and



• I have no evidence from Witness B to say that the specific documents were prepared for the purpose of obtaining assessment and further legal advice. In her evidence, Witness B states, for example, that she kept a record of her interviews to be able to recall at a later date, as part of her investigation, and almost, as an after-thought, to provide to the in-house counsel.

[92] What I do have is evidence that the documents were:

• created in the normal course of a disciplinary investigation; and



• created for the purpose of putting allegations to the Applicant.

[93] Adopting the principles, omitting footnotes, set out by Her Honour Kenny J:

• “the character of the documents brought into existence…will illuminate the purpose for which they were brought into existence”  35 – the purpose the documents sought were to enable allegations to be put to the Applicant;



• particularly on the oral evidence of Witness B, I am not satisfied that the purpose of the documents, at the time of their creation, was for the purposes of obtaining legal advice 36;



• I am not satisfied, on the evidence of Witness B, that the “dominant purpose” of creating the documents was to obtain legal advice. Whatever legal advice was received, was ancillary or subsidiary to the dominant purpose of determining allegations to be put to the Applicant 37; and



• I am not satisfied that the purpose of creating the documents as part of the investigation and to obtain legal advice (assuming that was the case) are of equal value. As I have already stated, Witness B’s oral evidence with respect to the creation of documents for legal advice was hesitant, unconvincing and lacked any force. I find that the dominant purpose for the creation of the documents was for the purpose of the disciplinary investigation.

[94] Finally, in the totality of the evidence, I find the circumstances appear to accord with Her Honour’s statement at paragraph [30]:

“Thus, the fact that a document is provided to a solicitor for advice is not determinative of the purpose for which it was created As Brennan CJ said in Propend at 508.

The test is anchored in the purpose for which the document was brought into existence; the use to which a document is put after it is brought into existence is immaterial.” (my emphasis)

CONCLUSION

[95] For the reasons set out above, I am satisfied that the Respondent was obliged to carry out an investigation into Witness A’s complaint. The documents created and subject to the request for production were, and had to be, created regardless of any intention to seek legal advice. However, there may have been some parts of those documents which were only created for the purpose of receiving legal advice. In my view, this conclusion accords with the view expressed in Pratt at paragraph [33(k)].

[96] Accordingly, in the first instance, pursuant to s.590(2)(c) of the FW Act, the documents 1, 3 and 4 in paragraph [3] are to be provided to the Commission by the Respondent. The documents are to be un-redacted. The documents will be considered to determine whether part or all of it attracts LPP.

COMMISSIONER

Appearances:

S Heathcote of Counsel on behalf of the Applicant.

I Neil SC on behalf of the Respondent.

Hearing details:

2016:

Perth,

25 July.

 1   Exhibit R1 (15, 21 and 23)

 2   Exhibit R1 (23)

 3   Transcript PN78

 4   Transcript PN85

 5 Section 577(a) and (b) of the FW Act

 6   Brink v TWU PR922612 at paragraph [7]

 7   King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]

 8   Exhibit R1 (11)

 9   Exhibit R1 (12)

 10   Exhibit R1 (13)

 11   Exhibit R1 (14)

 12   Pratt (30)(i)

 13   Exhibit R2 (6)

 14   Exhibit R2 (12)

 15   Transcript PN90

 16   Transcript PN60

 17   Transcript PN92

 18   Transcript PN93

 19   Transcript PN94

 20   Transcript PN136 and PN139

 21   Transcript PN98

 22   Transcript PN105

 23   Transcript PN108

 24   Transcript PN109

 25   Transcript PN113

 26   Transcript PN119

 27   Transcript PN123

 28   Transcript PN134

 29   Transcript PN146

 30   Exhibit R2 (15)

 31   Exhibit R2 (15)

 32   Transcript PN45

 33   Exhibit R2 (16)

 34   Transcript PN49

 35   Pratt 30(4)

 36   Pratt 30(5)

 37   Pratt 30(7)

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<Price code C, PR583283>