Damian Stephen

[2021] FWC 972

[2021] FWC 972

FAIR WORK COMMISSION

INTERLOCUTORY DECISION

Fair Work Act 2009
s.789FC - Application for an order to stop bullying

Damian Stephen
(AB2020/645)

COMMISSIONER SIMPSON BRISBANE, 24 FEBRUARY 2021

Application for an FWC order to stop bullying - Form F52 applications for production of documents

[1] On 29 September 2020 Mr Damian Stephen filed an application for a stop bullying order against Mrs Denise Fitzgibbons under section s.789FC of the Fair Work Act 2009 (Cth) (the Act). Mr Stephen is currently an employee of Seahill Enterprises Pty Ltd (Seahill). Mrs Fitzgibbons is the sole director of Seahill.

[2] On 4 February 2021 Mr Stephen’s legal representatives, Archibald & Brown Lawyers, filed four separate Form 52 applications for an order for production of documents directed to Mrs Fitzgibbons, Mr Arron Hartnett, Ms Paulette McCormack and Seahill. On 8 February 2021 the legal representatives for Mrs Fitzgibbons and Seahill filed a Form 52 application directed to Mr Stephen.

[3] This decision deals with the various applications for production. I have set out a summary of the chronology of the matter as background and I have reproduced some excerpts from some correspondence provided to chambers or that the parties have referred to in their respective arguments. I have not referred to all of the correspondence as it was considerable, however I have taken all of it into account.

[4] The matter was allocated to my chambers on 16 October 2020. On 19 October 2020 a notice of listing for a conference to be held on 3 November before the Fair Work Commission (the Commission) was sent to the parties from my chambers. On 19 October Mr Stephen sent an email to chambers requesting an adjournment as he had commitments on 3 November. On 20 October a new notice of listing was sent to the parties for a conference to be conducted on 4 November 2020.

[5] In the intervening period it became necessary for me to apply for and take a period of leave at short notice commencing from Monday 2 November. On 29 October 2020 the parties were advised I would be on leave from Monday 2 November 2020 returning Monday 4 January 2021, and the conference listed on 4 November would be adjourned and relisted for 5 January 2021. Parties were asked to advise if there was any objection to this proposal by close of business 30 October 2020.

[6] Mr Stephen sent email correspondence requesting in the circumstances of the adjournment and on the basis of a further allegation, an undertaking that the behaviour discontinue.

[7] On 30 October Ms Denise O’Reilly, a director of O’Reilly Workplace Law (OWL) sent correspondence to chambers advising that OWL had been instructed to act for Mrs Fitzgibbons and Seahill in relation to the matter. The correspondence stated that given OWL had only just received instructions, a request was made for an extension to Wednesday, 4 November 2020to confirm OWL’s clients’ response to the proposed adjournment. OWL advised their instructions were that the matter was complex, and that Mrs Fitzgibbons is approximately 90 years old so they will need some further time to confirm instructions.

[8] On 4 November 2020 OWL sent correspondence to the Commission requesting that the matter be reallocated to another Member of the Commission so that a conference may be listed on a date before 5 January 2021. The correspondence went on to state that Seahill has an obligation to investigate the allegations that Mr Stephen had 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 submitted that until it had the opportunity to address the application and the allegations contained in it, it would likely be challenging for Mrs Fitzgibbons and Mr Stephen to work together.

[9] OWL advised that they were instructed that this would make it very difficult for Mrs Fitzgibbons and Seahill considering that Mrs Fitzgibbons is the sole Director of the company and Mr Stephen is the Operations Manager of Seahill’s overall operations. Further, OWL advised that the November to January period is also generally the busiest time of year for Seahill and Mrs Fitzgibbons wished to be able to properly interact with the business that Mrs Fitzgibbons owns, as soon as practicable.

[10] On 5 November 2020 Mr Stephen sent two separate emails, firstly objecting to legal representation, and confirming agreement to a conference proceeding as listed on 5 January 2021.

[11] On 11 November 2020 an email was sent to the parties from chambers as including the following”

“Dear parties

I refer to the above matter and below correspondence.

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...”

[12] On 8 December 2020 chambers received an email from Mr Stephen that attached correspondence and a direction provided to him by representatives of Seahill and Mrs Fitzgibbons. He variously described the correspondence sent to him as “outrageous” and “an apparent attempt to frustrate the purpose of the mediation and potentially the hearing” and “an abuse of process and infringes on my rights for procedural fairness”.

[13] The attached correspondence referred to by Mr Stephen was from Ms McCormack of Fresh HR Insights, who was also engaged as a representative of Seahill and Mrs Fitzgibbons and directed Mr Stephen to attend an investigation meeting with Mr Hartnett, Counsel appointed by OWL. The correspondence drew to Mr Stephen’s attention an attached witness protocol sheet which further detailed the process that would be undertaken during the investigation and included advice that the investigation was for the purpose of providing legal advice to OWL and was subject to legal professional privilege.

[14] On the same day, Ms Annalise Thompson, a senior lawyer at OWL sent an email to chambers referring to an email from chambers dated 11 November 2020, advising that the matter was adjourned so that the Applicant’s employer, Seahill Enterprises Pty Ltd (Seahill), may have the opportunity to ‘carry out its internal investigation processes’.

[15] The letter stated that in accordance with the purpose of the adjournment, Seahill subsequently decided to engage Arron Hartnett of Counsel to independently investigate the bullying allegations in Mr Stephen’s application. The letter rejected the allegation that there has been an ‘abuse of process’ and advised the direction to attend the meeting with Mr Hartnett at 10:30am remained in place. Mr Stephen was reminded of his obligation to comply with all lawful and reasonable instructions made on behalf of his employer, including to attend the investigation meeting.

[16] On the same date Mr Stephen copied chambers into an email he sent to Ms McCormack stating that her account of the nature of the Commission’s reasons for adjournment was misconceived, noting he was not directed by the Commission to participate in Mrs Fitzgibbons’ “investigation”, nor was it appropriate he do so. Mr Stephen described Ms McCormack’s attempts to demand he participate in the “investigation” as “completely inappropriate” and “without basis.” Mr Stephen described the threat to engage in disciplinary action if he refused to participate as unlawful and vexatious. He also said he intended to report the matter to the police if the conduct continued.

[17] On the same date Mr Stephen sent an email to my chambers copied to the other parties stating he found Ms McCormack’s conduct harassing and humiliating and he intended to visit a medical practitioner the following day to discuss the distress this conduct was causing him. Mr Stephen asked that the matter be listed for urgent directions, particularly to restrain Ms McCormack from further intimidating and harassing him with her vexatious conduct.

[18] On 9 December Mr Stephen sent the following email to Ms McCormack copying in chambers stating he was prepared, under great duress, to attend an interview that day at the nominated address. He then responded to other matters in correspondence from Ms McCormack of 8 December 2020 with specific reference to conditions in the interview protocols for witnesses that was attached to the letter. (Applicant’s emphasis)

[19] At 9.28am on 9 December email correspondence was sent to the parties from chambers as follows:

“Dear parties

I refer to the above matter and correspondence received on 8 and 9 December 2020.

It is noted the Applicant has requested the matter be brought on for an urgent directions hearing.

As advised, Commissioner Simpson is currently on leave and does not have capacity to list this matter earlier than Tuesday 5 January 2021.

The Applicant has previously advised chambers that it was his preference for the matter not to be reallocated to another Member, and for Commissioner Simpson to conduct a conference upon his return.

Can the Applicant please confirm how he would like the matter to proceed…”

[20] Mr Stephen responded to chambers as follows:

“…Per previous correspondence, under duress I have consented to attend today’s interview. After that interview, I will provide further advise on my position with respect to my request for a directions hearing…”

[21] At 12.55pm on 9 December 2020 Mr Stephen sent the following email to chambers:

“…Further to my earlier email, I attended the respondent’s lawyers (sic) office this morning for the interview, only to be told that it has been adjourned until tomorrow morning at 10:30am.

Given this, and the huge emotional strain this is placing on me, I would like to request a change in Commissioner to allow for an urgent Directions Hearing on this matter as the ongoing bullying and harassment is entering an extreme zone. I have organised to see my GP later this evening due solely to the behaviour of the respondent and the aggressive correspondence of her lawyers and HR adviser.

Please advise…”

[22] At 2.02pm on 9 December Ms Annalise Thompson of OWL sent the following email correspondence to chambers:

“…We refer to the Applicant’s email below.

We are instructed that the Applicant advised Paulette McCormack (Director of Fresh HR Insights), who is responsible for coordinating the investigation, at approximately 9:00am today that he would attend the interview that had been scheduled with Mr Hartnett at 10:30am today (after stating on approximately 4 separate occasions that he did not intend to attend). Further, in doing so, the Applicant also alleged that he had not had sufficient time to arrange for a support person to attend or to prepare for the meeting with Mr Hartnett. Accordingly, the Applicant was advised prior to the scheduled meeting that it would be moved to 10:30am tomorrow, 10 December 2020, to allow the Applicant sufficient time to do so, despite our client’s view that more than 24 hours’ notice of the meeting was sufficient time.

We are hesitant to write any further correspondence to Commissioner Simpson’s chambers given his annual leave, and simply make the following very brief comments in the context of the Commission’s recent adjournment of the matter so that our client could investigate the allegations made by the Applicant:

•  Seahill Enterprises Pty Ltd (Seahill)’s 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.

•  That being said, if Commissioner Simpson (or another Member of the Commission) considers that it would be more appropriate for this matter to no longer be adjourned and for the matter to be listed, Seahill will of course comply with any such direction of the Commission. However, Seahill’s respectful submission is that it has arranged to investigate the Applicant’s bullying allegations in accordance with the direction from Commissioner Simpson issue on 11 November 2020. Further, that it would not be appropriate for the Commission to make an Order in relation to this matter before Seahill has had the opportunity to conduct an internal investigation of the Applicant’s bullying allegations, pursuant to s.789FF(2) of the Fair Work Act 2009 (Cth) (FW Act).

We ask that the Applicant please confirm as a matter of urgency whether his intention to see his ‘GP later’ means that he will not be fit to attend the interview tomorrow and if so, that he comply with the notice requirements under s.107 of the FW Act to entitle him to take personal leave. Alternatively, whether he will not be attending on the basis of his view (which we dispute) that the instruction to do so is not lawful and reasonable…”

[23] My Associate spoke to Mr Stephen by telephone that afternoon and recorded a file note of that telephone conversation. During that conversation Mr Stephen advised my Associate that he sought for the matter to be listed for a Mention before me on 5 January 2021.

[24] Late on the afternoon of 9 December my Associate sent email correspondence to both parties as follows;

“The Applicant has requested for the matter to be brought on for a Mention before Commissioner Simpson on Tuesday 5 January 2021 so the parties can provide the Commissioner with an update. I confirm the Commissioner has availability on this date.

Can the Employer please advise if there is any objection to this course of action as soon as possible?...”

[25] No objection was received and a notice of listing was sent to the parties on 16 December that a conference would proceed on 5 January 2021.

[26] During December other correspondence was exchanged particularly concerning Mr Stephen’s participation in the investigations into allegations he had made against Mrs Fitzgibbons, and into allegations against him. These are set out as attachments to the first affidavit of Mr Leslie Moore, a director at Archibald & Brown Lawyers.

[27] The correspondence includes a letter of 10 December 2020 from OWL to Mr Moore concerning Mr Stephen’s failure to attend a meeting with Mr Hartnett scheduled for 10.30am that day, and a claim that Mr Stephen had failed to follow a lawful and reasonable instruction from Seahill. This letter included a warning that any further failure to follow a lawful and reasonable instruction would amount to misconduct and may result in disciplinary action including termination. This letter included an instruction to attend a meeting with Mr Hartnett at 4pm 10 December 2020 and that failure to attend may put his employment at risk.

[28] On 10 December Mr Moore responded to OWL in correspondence and included a statement that OWL and Ms McCormack have sought to coercively require Mr Stephen to attend before Mr Hartnett for an investigation, and given the matters were before the Commission this was inappropriate. Mr Moore stated that Mr Stephen had been advised to decline any such direction.

[29] Further Mr Moore advised OWL that any attempt to “interrogate our client” outside of the Commission’s framework would be regarded as an attempt to subvert the course of the Commission proceedings and will not be complied with as an abuse of process.

[30] On 11 December 2020 OWL sent correspondence to Mr Moore. In that correspondence OWL quoted from an email from my chambers to the parties on 11 November 2020 where the parties were advised the matter was adjourned at that stage until the employer has had an opportunity to carry out its internal investigation processes.

[31] The letter states that accordingly the Commission has made clear its expectation that Mr Stephen’s bullying allegations would be investigated by Seahill and that the Commission would not be involved until that investigation had been completed. The correspondence from OWL stated that this was effectively a direction of the Commission and on that basis OWL’s client has sought to investigate the matter.

[32] The letter stated that before making an order under s.789FF of the Act, the Commission must 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 that may resolve the employee’s grievance or dispute.

[33] The letter stated that the Commission adjourned the application so that Seahill could investigate Mr Stephen’s allegations (in accordance with its Workplace Bullying/Harassment Policy) before a hearing or a conference, or making an Order in relation to the proceedings, and OWL’s client has since acted to comply with the direction.

[34] The letter stated that appointing an external, independent investigator accorded with its Workplace Bullying/Harassment Policy, and that as Mr Hartnett is a Barrister he had been engaged by OWL as an independent investigator, on the basis, Seahill’s appointment of Mr Hartnett is contemplated by the policy and necessary to comply with the direction of the Commission.

[35] Several different pieces of correspondence from OWL have made much of the contents of the email sent from chambers to the parties on 11 November, however OWL has overstated the effect of the email. The parties were aware at that stage that I was on leave from 2 November 2020 until 4 January 2021.

[36] The email from chambers is expressed in terms such that an adjournment would occur until Seahill had “an opportunity” to carry out an internal investigation. It was not a direction from the Commission that Mr Stephen was required by the Commission to be interviewed, or even that Seahill complete an investigation. It was however an opportunity to make productive use of the time until 5 January 2021 upon my return from leave.

[37] Further correspondence was exchanged between OWL and Archibald & Brown contesting various matters including Mr Stephen’s participation in Mr Hartnett’s investigation. In correspondence of 17 December 2020 OWL made a series of statements about the appointment of Mr Hartnett as an independent investigator including that he is an experienced and well-regarded independent workplace investigator, and further that he has been engaged to act as an independent and unbiased investigator and there is no conflict of interest.

[38] On 17 December 2020 a notice was filed that Mr Stephen would be represented by Mr Leslie Moore of Archibald & Brown Lawyers. On 21 December correspondence from Archibald Brown to OWL included the following:

“In view of the fact that your firm acts for Mrs Fitzgerald (sic) in relation to the anti-bullying complaint in the Fair Work Commission, and your confirmation that it is a purpose of the investigation that your firm “can in turn provide legal advice about the allegations” our client complains that:

1. The requirement to attend for interview is neither lawful or reasonable;

2. The purpose for the investigation is obviously “mixed”;

3. An investigation for the purpose of your firm providing advice to the Respondent named in anti-bullying proceedings in the Fair Work Commission (FWC) is not appropriate;

4. The coercive nature of the interview, in the context of the complaint of bullying by your client, together with the purpose of the interview as revealed by your letter (and the fact that the investigator is appointed by the firm representing the Respondent in the Fair Work Commission proceedings) taints the appearance of objectivity which otherwise may have cloaked the investigation by reason of Mr Hartnett’s professional status;

5. The directions to attend for interview amount to adverse action proscribed by Part 3-1 of the Fair Work Act 2009 (FW Act);

6. The ‘show cause’ correspondence amounted to adverse action proscribed by Part 3-1 of the FW Act;

7. The employer’s conduct in issuing unlawful and unreasonable directions and requiring him to show cause are an extension of the very bullying behaviour complained of by our client in his anti-bullying application before the FWC, and

8. That the behaviour complained of in the FWC proceedings is behaviour, which is by definition, alleged to create a risk to health and safety.

We submit that as the FWC has now issued a notice of hearing for 5 January 2021, it would be appropriate for our client’s employer to reconsider the direction to attend so that the status quo can continue until the parties can seek the assistance of the Commission to deal with the matter.

If despite the complaint made herein, your client still requires our client to attend for interview on Tuesday, 22 December 2020, we confirm his availability to do so...”

[39] On 22 December 2020 OWL wrote to Archibald & Brown concerning Mr Stephen’s attendance for an interview scheduled for that day at 10am. The correspondence included a number of dot points by way of response to the previous correspondence of Archibald & Brown. One of those dot points reads as follows:

“•  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 clients anti-bullying application. There is no pre-determined 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 are substantiated; …”

[40] Later that day Mr Stephen attended an interview with Mr Hartnett along with Mr Rebetzke of Counsel, and Mr Moore. A transcript of the interview was provided with Mr Moore’s first affidavit. Part way through the interview the transcript records Mr Rebetzke asked Mr Hartnett who he is instructed by or who he understood that he was instructed by. Mr Hartnett responded that OWL provides him with his instructions and materials. Mr Rebetzke responded as follows:

“…that firm act not only for my client’s employer but specifically acts for the respondent in the proceedings under the Fair Work Commission. So, and has indicated that it intends to use your advice to advise its client about specifying which of its two clients we assume that the purpose is therefore to um advise the respondent in Fair Work Commission proceedings. So that is um, quite a different situation to the usual workplace investigation where you are appointed by an employer to go to the workplace and um interview witnesses and provide a report to the employer.

In this case we have got a situation where proceeding has commenced against an individual as an anti-bullying application must be, um that individual has robustly responded and made various threats in response….”

[41] Mr Rebetzke also stated as follows:

“…our client has now been directed to essentially be deposed ahead of the proceedings by the...someone instructed by the lawyers acting for the respondent. So, you can see the problem from our, my clients perspective is whilst we have been told you’re an independent investigation, investigator, there is that um reasonable apprehension that, there isn’t a necessary quality of independence because you’re instructed by the firm who is acting and is advising the respondent in the proceedings. So I guess, um that that puts you in a difficult position in know, um, but I guess what um, I should do on behalf of my client at this stage is make that complaint to you and I use the word complaint advisably so this essentially an exercise of a workplace right, that we are complaining to you that the process is unfair…”

[42] Mr Rebetzke further on also said the following to Mr Hartnett:

“We are also concerned about whether your report and the product of your investigations is to be privileged. I understand that the position taken by your instructors is that your report would be privileged. However that seems to be untenable given that their position is that you’re not providing them legal advice, um that and the expressed purpose is to investigate/conduct a workplace investigation complaints. It would only be privileged if it something pertained but in review of the anticipated legal proceedings. If that is the case then it appears to be a maintenance of a claim of privilege over your work product by Seahill and Mrs Fitzgibbons that seems to be, can only be on the basis that the purpose of this investigation is for use in anticipated legal proceedings and in that case it is an inappropriate use of the or it’s inappropriate to direct my client to be here and attend to answer questions…”

[43] The interview was adjourned without Mr Hartnett putting any further questions to Mr Stephen.

[44] On 23 December 2020 Archibald & Brown sent correspondence to OWL including the following:

“…Legal Professional Privilege Issue

You will be aware of our correspondence to Mr Hartnett on 22 December as you were copied to it.

One of the issues raised was the production of all documents and work product of Mr Hartnett in respect of his ‘independent investigation’ on the basis that they are relevant to the issues in dispute and legal professional privilege does not attach to them.

Mr Hartnett has been asked to produce the following documents and classes of documents by 4pm on 29 December 2020...”

[45] On the same day OWL sent correspondence to Archibald Brown including the following:

“…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 in foot. It is difficult to see how there could by 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….”

[46] On 4 January 2021 correspondence was received from OWL in chambers copied to Mr Moore as follows:

“…We refer to the Commission’s email to the parties on 11 November 2020 clarifying the purpose of the adjournment of Damien (sic) Stephen’s Application for an Order to Stop Bullying (Application) against Mrs Fitzgibbons in relation to his employment with Seahill Enterprises Pty Ltd (Seahill). Specifically, to the Commission’s adjournment of the matter so that Seahill could ‘carry out its internal investigation processes’ into the allegations that are contained in the Application (Allegations). The outcome of any such internal investigation is a factor the Commission must take into account under s.789FF(2)(a) of the Fair Work Act 2009 (Cth) in deciding whether to make a stop bullying order.

We understand that the Application was relisted for a mention on 5 January 2021 upon Commissioner Simpson’s return from leave. In order to assist the Commission at the mention, we have set out below an update as to the status of Seahill’s investigation into the Allegations.

1. Appointment of independent investigator

Following the Commission’s 11 November 2020 email, Seahill instructed our firm, O’Reilly Workplace Law, to engage an independent third party investigator to conduct the investigation into the Allegations (Investigation) for the purposes of providing legal advice and in light of the Application. O’Reilly Workplace Law engaged Mr Arron Harnett of Counsel to conduct the Investigation.

Seahill considers that it was appropriate for Mr Hartnett to be appointed by its solicitors to investigate the Allegations for reasons including that:

•  the Applicant is the most senior employee employed by Seahill (other than Barry Fitzgibbons who is currently absent on long term personal leave), and the only other person available to conduct the Investigation is Mrs Fitzgibbons herself;

•  it would not be appropriate for Mrs Fitzgibbons to have conducted the Investigation herself. If the Allegations are true, then any enquiries of other employees and the Applicant which would be necessary to complete the Investigation would expose them to the risk of further bullying (although those Allegations are denied). Further, Mrs Fitzgibbons is a party to this proceeding and in that sense would not be considered independent. Further, Mrs Fitzgibbons is a 90 year old lady and is under considerable stress as a result of the Application; and

•  Mr Hartnett is entirely independent, has experience conducing workplace investigations, and in assessing witness evidence against allegations. In addition, as an officer of the Court Mr Harnett has ethical duties to ensure that the Investigation is conducting properly, and importantly, independently.

2. Status of investigation

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.

The Applicant has not participated in an interview to date, despite him being directed to do so on multiple occasions. This has included from 8 December 2020 by letter from Fresh HR Insights, Seahill’s human resources advisor (Fresh HR), and then multiple times on 10 December 2020 as well as on subsequent dates. This has resulted in Seahill issuing the Applicant with written warnings for failing to comply with lawful instructions to attend the interview.

The Applicant ultimately attended one planned interview on 9 December 2020 which was not able to proceed because the Applicant had recently prior refused to attend the interview and also suggested he may not be fit to attend. As a result Mr Hartnett did not attend for the interview and so it could not proceed that day. Ultimately the Applicant attended an interview on 22 December 2020 accompanied by both his solicitor and a barrister. We understand that the interview failed to proceed due to the Applicant’s representatives’ continued objections, amongst other things.

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.

3. Correspondence between the parties regarding the investigation

The process in seeking to have the Applicant participate in an interview regarding his Allegations against Mrs Fitzgibbons has involved considerable correspondence between the parties. There have been approximately 23 items of correspondence between the parties in relation to the matter of the Applicant participating in an interview as a part of the investigation only. We have not attached all of this correspondence given its very large volume (in excess of 100 pages including lengthy email chains, some of which the Commission has copies of). Should the Commission wish to be provided with a copy of all of this correspondence, or any individual items of correspondence, we would be happy to provide them.

4. Purpose of 5 January 2021 listing

Separately, the Applicant’s representative has stated that the listing of this matter on 5 January 2021 is for hearing of the Application. However, we understand the matter has been listing for mention only, as provided in the Listing dated 16 December 2020. We respectfully request the Commissioner clarify this matter for the benefit of parties, should our understanding be incorrect and if the matter is listed for hearing.

Separately, we are instructed that our clients respectfully submit that it is not appropriate for the Application to be listed for hearing given the near complete status of Mr Hartnett’s Investigation.

5.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..”

[47] At 8.25pm on 4 January 2021 Mr Moore sent an email to chambers attaching an affidavit from himself with attachments made up of correspondence exchanged between either Mr Stephen, or Mr Moore with Ms Paulette McCormack of Fresh HR Insights or OWL.

[48] On the morning of 5 January 2021 email correspondence was sent to OWL from chambers copying in Archibald & Brown advising the matter had been listed for mention at 2:00pm for the purpose of allowing the parties to provide the Commissioner with an update on the status of the matter.

[49] At the mention before the Commission on 5 January 2021 both parties agreed to participate in a further conference on 19 January 2021. Further conferences were conducted on 19 and 27 January 2021, however the matter was not able to be resolved. At the conclusion of the conference on 27 January I indicated to the parties that the matter would be programmed for hearing in a short timeframe.

[50] On 1 February 2021 OWL provided by email to chambers the following undertaking on behalf their clients:

“ We refer to the above matter and the conference before Commissioner Simpson on Wednesday, 27 January 2021.

Instructions in relation to the Applicant’s employment

Given that this matter has unfortunately not resolved, we write to inform you that until the matter has been heard by Commissioner Simpson, our instructions are that our client will not terminate Mr Stephen’s employment in circumstances where any findings are made in relation to either of the two investigations that are currently underway. That is, Mr Arron Hartnett’s (Barrister and independent investigator) investigation into the bullying allegations raised by the Applicant, as well as Mr Stephen Mackie’s (Barrister and independent investigator) investigation into the allegations against the Applicant.

However, we intend that Mr Hartnett proceed with making findings in relation to the allegations made by Mr Stephen, given the safety issues raised and the pending hearing. On the basis that no action is to be taken to terminate the Applicant’s employment, and that the Employer will not during this time press the Applicant’s participation in an interview, we submit that the finalisation of the findings is appropriate and reasonable in the circumstances, and does not create a risk to health and safety.

Further, Stephen Mackie (Barrister and independent investigator), who is conducting the investigation into allegations raised by former employees of our client against Mr Stephen, will continue to collect evidence as part of his investigation.

In addition, in the unlikely event that the Employer becomes aware of any new conduct that it was not previously aware of that might warrant dismissal (outside of any factual matters that are the subject of the two investigations), our client instructs us that it will not terminate Mr Stephen’s employment prior to the completion of the hearing of this matter. However, if such new conduct is discovered, the Employer reserves its rights to suspend Mr Stephen from his employment to preserve its termination rights until the matter has been heard. Please let us know if the Commission has any questions regarding the Employer’s above described commitments, or if the Commission requires any further clarification…”

[51] On 2 February 2021 directions were issued to the parties to file statements and submissions and for the matter to be heard on 22 and 23 February 2021. OWL advised chambers that Counsel was unavailable on the dates for hearing, and the representative for Mr Stephen advised they did not oppose the matter being adjourned to dates in March and foreshadowed interlocutory applications.

[52] The interlocutory applications were listed for hearing on 11 February 2021. During the hearing Mr Rebetzke advised that the orders to produce directed at Mr Stephen were not opposed. An adjournment was granted for the filing of further affidavits from the representatives of Mrs Fitzgibbons and Seahill. The matter was ultimately heard on 15 February 2021.

[53] Mr Stephen was represented by Mr Rebetzke of Counsel instructed by Archibald & Brown and Mrs Fitzgibbons and Seahill were represented by Mr Spence of Counsel instructed by OWL. Mrs Fitzgibbons and Seahill’s objections to the four separate applications for production of documents relied on written submissions dated 10 February 2021, supplementary written submissions handed up in the course of hearing on 15 February as well as oral submissions and an affidavit provided by Denise O’Reilly of OWL and a witness statement of Paulette McCormack, Director of Fresh HR Insights Pty Ltd.

[54] Mr Stephen relied on written submissions in reply handed up at the hearing on 15 February, oral submissions, the affidavit of Mr Leslie Moore of 4 January 2021 with attachments and a further affidavit of Mr Leslie Moore with attachments dated 14 February 2021.

[55] Prior to the hearing chambers was copied into correspondence between the parties that foreshadowed a potential argument as to the necessity of Ms O’Reilly and McCormack being available for cross examination. I sent email correspondence to the parties on the morning of the hearing that I did not intend to require Ms O’Reilly or Ms McCormack to be available for cross examine on the day, and I would hear submissions as to whether cross examination was necessary and on the applications themselves.

[56] I also requested that Ms Fitzgibbons and Seahill produce documents referred to at paragraphs 7 and 10 of Ms O’Reilly’s affidavit to chambers on a confidential basis.

[57] Mr Rebetzke submitted that on the basis there was no complaint that there were inconsistencies between representations made by the representatives of Mrs Fitzgibbons and Seahill and the reasons stated for the engagement of Mr Hartnett and Mr Mackie by Ms O’Reilly, Mr Stephen did not to press for the two deponents to be subject to cross examination and the onus lies on the objector seeking to claim legal professional privilege.

SUBMISSIONS AND EVIDENCE OF MRS FITZGIBBONS AND SEAHILL

[58] The affidavit of Ms O’Reilly stated that she is the Director and Principal Lawyer of OWL. Ms O’Reilly said she made the affidavit in support of OWL’s objection to the Commission making orders for the production of documents sought by Mr Stephen that are related to the independent investigations conducted by Mr Hartnett and Mr Mackie, on the basis that the documents are subject to legal professional privilege.

[59] Ms O’Reilly said on or about 18 November 2020 OWL directly engaged Mr Hartnett:

a) to investigate allegations that Mr Stephen raised against Mrs Fitzgibbons in his application to this proceeding, filed with the Commission on 28 September 2020, that Mrs Fitzgibbons had engaged in repeated, unreasonable behaviour toward him that caused a risk to his health and safety; and

b) to determine whether Mr Stephen’s allegations are substantiated; and

c) if any or all of Mr Stephen’s allegations are substantiated, whether they amount to bullying (as defined under s.789FD of the Fair Work Act 2009 (Cth)) or other unlawful conduct, so that OWL could provide legal advice to Seahill regarding those findings and potentially make use of those findings in the proceeding.

[60] Ms O’Reilly said the reason for OWL engaging Mr Hartnett were stated in OWL’s engagement letter to Mr Hartnett, which is subject to legal professional privilege, however as set out above was provided to the Commission on a confidential basis.

[61] Ms O’Reilly said the purpose of Mr Hartnett’s engagement, and that he was engaged directly by OWL, was confirmed in a letter from Ms O’Reilly to Mr Stephen’s solicitors on 23 December 2020, in which Ms O’Reilly also stated that documents they had requested from Mr Hartnett were subject to legal professional privilege and would not be provided

[62] It was submitted for Seahill and Mrs Fitzgibbons that accordingly the dominant purpose of Mr Hartnett’s engagement was to provide legal advice to Seahill as well as for potential use in existing litigation 1, and that accordingly any and all documents related to Mr Hartnett’s investigation of Mr Stephen’s Allegations are subject to legal professional privilege and cannot be required to be produced.

[63] Ms Paulette McCormack, Director of Fresh HR Insight said in her statement that she is engaged, as Director of Fresh HR, to act as agent on behalf of Seahill and Mrs Fitzgibbons. Ms McCormack said she prepared the statement in support of Mrs Fitzgibbons who is a 90-year-old, because she is presently unwell and is not able to prepare or sign a statement.

[64] Ms McCormack said she is authorised by Mrs Fitzgibbons and Seahill to provide instructions to OWL and has been engaged in that capacity since on or about 30 October 2020 and accordingly, any communication between herself, OWL and Mrs Fitzgibbons and/or Seahill made in the course of obtaining legal advice or in relation to the proceedings is subject to legal professional privilege. Ms McCormack said she ceased to act for the Respondent in relation to the proceeding on 30 October 2020.

[65] Ms McCormack set out in her statement her objections to documents sought by Mr Stephen from Seahill, Mrs Fitzgibbons and Fresh HR.

[66] It was submitted since OWL’s engagement Fresh HR has acted as agent for Mrs Fitzgibbons and Seahill. OWL has accordingly been authorised by the Respondent and Seahill to take instructions from and disclose confidential information to Ms McCormack in relation to this matter.

[67] Accordingly, Seahill and Mrs Fitzgibbons submitted 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. 2 . It was submitted that therefore those communications cannot be required to be produced.

[68] The submissions for Mrs Fitzgibbons and Seahill provided a table setting out each of the objections to the four applications for orders for production filed for Mr Stephen.

[69] In supplementary written submission Mrs Fitzgibbons and Seahill said they relied upon legal professional privilege, relevance, the burden placed on the Respondent required to comply, and that particular documents sought amount to no more than fishing.

[70] It was submitted that in Esso Australia Pty Ltd v AWU 3 (Esso), a Full Bench of the Commission said the following:

“…[6] The principles to be applied in determining whether and if so what form of order should be made are not seriously in contention, and as the Unions point out, these principles were summarised in Australian Nursing Federation v Victorian Hospitals' Industrial Association, which we adopt without repeating them. It is sufficient to observe that the power under s.590(2)(c) to require a person to provide copies of documents or records, or to produce any other information to the Commission is a discretionary power, the exercise of which is to be guided by the principles adopted by courts in civil proceedings when compelling a person to produce documents, records or other things. Matters that will guide the exercise of the discretion to require production include relevance, the particularity with which the documents or category of documents that are to be the subject of the order sought are described, the extent to which the burden placed on a person required to comply with the order is reasonable, the extent to which particular documents sought amount to no more than fishing, and the proper administration of justice in the sense that material that is relevant to an issue or issues that fall for determination is available to parties to enable the parties to advance their respective cases.”

Legal Professional Privilege

[71] Mrs Fitzgibbons and Seahill referred to the decision in Application by Mr Benedict Hardless 4 (Hardless) where Platt C considered the legal principles that apply in relation to the test for legal professional privilege and the dominant purpose saying as follows:

“Applicable Law

[42] In 1999, the High Court in Esso Australia Resources Ltd v Commissioner of Taxation overruled Grant v Downs, holding that the common law test for legal professional privilege is the dominant purpose. The relevant principles as to the determination of privilege by the Commission have been usefully summarised in the more recent case of Bowker.

[43] As to waiver, in DSE (Holdings) Pty Ltd v lntertan Inc, Justice Allsop asserted that an implied waiver will arise where " ... the party entitled to the privilege makes an assertion (express or implied), or brings a case which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication."

[44] In Krok v Commissioner of Taxation, Justice Wigney stated, "Where a party to litigation discloses or deploys a partial disclosure of legal advice in order to achieve some forensic advantage, while claiming privilege and there by seeking to deny the other party an opportunity to see the full text of the communication, this may amount to conduct inconsistent with the maintenance of privilege. Questions of waiver are matters of fact and degree. Each case will tum on its own facts and circumstances and other cases in which implied waiver has been considered provide limited guidance unless they arise out of the same facts."

[45] In AG for Northern Territory v Maurice and Ors, Justice Deane said "Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage .... Where, however, he does no more than make use of privileged material (e.g. legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to the ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.”

[72] It was said for Mrs Fitzgibbons and Seahill that what has occurred is entirely orthodox. The decision in Bowker v DP World Melbourne Limited 5 (Bowker) was relied upon and it was put that the facts were very similar to this case.

[73] In Bowker two employees lodged separate applications under section 789FC, and solicitors acting for the employer engaged Counsel to conduct an investigation and prepare a written report in relation to the allegations to assist the solicitors acting for DP World to provide advice to DP World in relation to the complaints. The engagement correspondence made clear that any correspondence was confidential and subject to legal professional privilege. All communications went through the law firm. Paragraph 30 of the decision reads as follows:

“[30] Turning then to the Applicants’ submission that the Gunzburg Communications and, in particular, the report would have come into existence irrespective of the purpose of obtaining legal advice and so that purpose cannot be the dominant purpose, that submission is not accepted. First, as DP World points out, the position is not factually sustainable having regard to the evidence that has been filed. DP World appears to have carried out its own investigations and made its own findings about what occurred and whether the policy was breached. Secondly, there is no apparent reason why DP World cannot elect to conduct a workplace investigation, in particular circumstances, in a manner that ensures the product of that investigation is the subject of legal professional privilege or client legal privilege. What DP World chooses to do with that product after it is received might have the effect of waiving privilege, but it does not detract from the original purpose for which the product was obtained or give it a general purpose character so that the legal advice purpose is not the dominant purpose.”

[74] It was also submitted for Seahill and Mrs Fitzgibbons that when Mr Stephen’s application is scrutinised there are only three instances of direct interaction between Mr Stephen and Mrs Fitzgibbons, and in each of these the actions are of Mrs Fitzgibbons were reasonable. Other instances raised in the application are said to be speculative and based in conspiracy.

[75] It was also submitted that mere allegation does not support a basis for discovery. It was put that this case involves a range of speculation and assertion and no link with Mrs Fitzgibbons, and on that basis the discovery is based on three examples of direct contact, and then seven other examples with no connection with Mrs Fitzgibbons. It is put the production is sought for the purpose of building a case, and not supporting a case that actually exists and on that basis is fishing. 6

[76] In relation to category two of the F52 application directed at Seahill seeking discovery of personnel records of employees, it was said the reason for the application is vague and is done on the claimed basis of credit. The claim is for all personnel records of employees other than Mr Stephen based on alleged conduct of Mrs Fitzgibbons. It was submitted that a Federal Circuit Court decision in Anne Grade v Dunlop Australia 7 dealt with an application for production based on the credit of a witness. The decision found it may be appropriate in some circumstances where a known document exists, for example a worker’s compensation claim in circumstances where a worker had said they were injured playing football on the weekend, however it was put this is not such a case.

SUBMISSIONS AND EVIDENCE FOR MR STEPHEN

[77] As stated previously Mr Stephen relies on two affidavits of Mr Moore and correspondence attached to those affidavits. Mr Stephen’s written submissions referred to the principles as stated in Australian Nursing Federation v Victorian Hospitals’ Industrial Association 8 as adopted in Esso.

[78] In regard to legal professional privilege Mr Stephen referred to the principles as summarised by Gostencnik DP in Bowker. It is put that the issues for determination are:

(1) The purpose of the creation of the documents and whether the purpose alleged (by Mrs Fitzgibbons and Seahill) was the dominant purpose’ and

(2) The question of waiver of privilege – which only arises if legal professional privilege first attaches to the relevant documents.

[79] It was emphasised for Mr Stephen that the person seeking to claim legal professional privilege carries the onus of establishing the claim, and the test is the dominant purpose test. It was submitted that the discussion in AWB Ltd v Cole and Another 9 by Young J is instructive as to what is meant by “dominant purpose.” An extract referred to from that decision was provided in Mr Stephen’s submissions.10

[80] It was submitted that the test is “anchored” to the purpose for which the document was brought into existence and it does not matter what the document is used for after it is brought into existence.

[81] Regarding the issue of waiver, it was submitted the test is an objective one which may not reflect the subjective intention of the party who has lost the privilege. The submissions of Mr Stephen referred to a decision of a Full Bench of the AIRC in Brown v BlueScope Steel Limited 11 (Bluescope) as an example of waiver brought about by conduct inconsistent with the maintenance of privilege. The Full Bench upheld a finding that the representation made to an applicant in an unfair dismissal case that a firm of solicitors had been engaged to carry out an "independent review" of the termination was conduct inconsistent with the maintenance of privilege. The Full Bench observed that it was "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". It was said both the Commissioner and the Full Bench were of the view that there was a perception of unfairness which flowed from the withholding of the report from Mr Brown given the representations made to him.

[82] It was submitted for Mr Stephen that the Respondents’ submission was that the engagement of Mr Harnett was 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".

[83] It was submitted that relevant representations which are inconsistent with the case now advanced by the Respondent include:

(a) That Seahill "has an obligation to investigate" under its internal policy and had not yet had the opportunity to follow its "internal investigation processes", and that it had an obligation under the Work Health and Safety Act 2011 (Qld) to investigate.

(b) "Seahill's appointment of Mr Hartnett and instruction to you are directly in accordance with the purpose for which Commissioner Simpson adjourned the Application";

(c) "Seahill has engaged an independent barrister, Mr Arron Hartnett, to investigate the Allegations";

(d) "To update you, we have recently instructed Arron Hartnett of Counsel to conduct the investigation. We and/or Paulette MacConnack (sic) (Fresh HR Insights) will be touch in the coming days regarding investigation interviews ... ";

(e) "Seahill's appointment of Mr Hartnett and instruction to you are directly in accordance with the purpose for which Commissioner Simpson adjourned the Application."

(f) "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."

(g) That the investigation and the appointment of Mr Hartnett accords the Seahill Workplace Bullying/Harassment Policy:

"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 alternative person appointed in the event the complaint involves the venue's Manager.'

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 ....

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 ... "

(h) That the investigation was in accordance with an expectation of the Commission that the Employer carry out its "internal investigation processes", and that the employer investigation was "effectively a direction of the Commission", and that "On this basis, our client has sought to investigate the matter".

(i) That the outcomes arising out of the investigation would be required to be considered by the Commission pursuant to s 789FF of the FW Act;

(j) That "Seahill's decision to appoint an external, independent investigator in this circumstance (which is Mr Hartnett) accords with the terms of the [Workplace Bullying/Harassment] Policy."

(k) That Mr Hartnett will be acting "solely" in the capacity of "independent investigator";

(1) "Seahill's appointment of Mr Hartnett is contemplated by the [Workplace Bullying/Harassment] policy and necessary to comply with the direction of the Commission";

(m) That Mr Stephen was directed to be interviewed "so that Mr Hartnett can form a view about the allegations" and that "This is a common step in workplace investigations." The purpose of interview is not cross examination or interrogation as "These assertions misunderstand standard approaches to workplace investigations";

(n) That "it was reasonable and in accordance with Commissioner's [sic] 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";

(o) That Mr Stephen's failure to comply with a direction to be interviewed by Mr Hartnett amounts to misconduct;

(p) That O'Reilly Workplace Law's involvement was self-described as: "We have simply been assisting our client in progressing an investigation into your client's complaints, in accordance with Commissioner Simpson's direction."

(q) That, in relation to a direction to the Applicant to attend to be interviewed by Mr Hartnett, "the purpose of the meeting is for the Applicant to provide his account of the bullying allegations to an unbiased, independent third party and ensure procedural fairness";

(r) That "Seahill had appointed Mr Hartnett to independently investigate those allegations";

(s) That "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";

(t) That "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 ... 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."

[84] It was submitted for Mr Stephen in relation to Mr Mackie’s investigation that it was the Respondents’ submission that Mr Mackie was engaged by OWL "for the dominant purpose of investigating allegations raised by former employees of Seahill Enterprises Pty Ltd (Seahill) against Mr Stephen (Employee Allegations) to determine whether Mr Stephen engaged in misconduct, so that OWL could provide legal advice to Seahill regarding those findings".

[85] It was submitted that the representations made in respect of Mr Mackie's investigation include:

(a) "Seahill has arranged for the Allegations to be independently investigated by a barrister, Stephen Mackie, which [the Applicant] will be required to participate in"·

(b) "Seahill has taken the step of investing resources in an entirely separate investigator and investigation process to ensure fairness to [the Applicant] and to ensure the independence and objectivity of the investigation."

(c) That the investigation is required under the Work Health and Safety Act 2011 (Qld);

Submission on dominant purpose

[86] It was submitted for Mr Stephen that despite an attempt to characterise the dominant purpose of the investigations as being for OWL to provide legal advice to Seahill, that should be seen for what it is, a mere device designed to cloak the investigation in legal professional privilege.

[87] It was submitted the consistent representations made to Mr Stephen and his legal representative in seeking to justify the direction that he attend an interview by Mr Hartnett suggested that the purpose of the investigation was to conduct an independent workplace investigation as contemplated by its "internal investigation processes" as set out in the Employer's Workplace Bullying/Harassment Policy.

[88] It was submitted that another purpose represented to Mr Moore was that the investigation was required by the Commission and its outcomes would be required to be considered by the Commission pursuant to s.789FF of the Act.

[89] It was submitted that OWL represented in correspondence of 22 December 2020 that the "sole purpose" of the investigation "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 [the Applicant's] antibullying application".

[90] It was submitted that the next day, 23 December 2020, on the basis of the representations as to the "sole purpose" of Mr Hartnett's "independent" investigation, Mr Stephen requested Mr Hartnett provide relevant investigation records and was met with a response from the Respondent's solicitor that claimed inconsistently with the "sole purpose" representation made just the previous day -that the "dominant purpose" was actually so that they "may provide legal advice in relation to the outcome of the investigation".

[91] It was submitted for Mr Stephen that the other parties cannot have it both ways to suit them and on the basis of the evidence and the onus of proof. It was submitted that the Commission could not find that the provision of legal advice to Seahill was the dominant purpose of the creation of any investigation documents by Mr Hartnett when the evidence is viewed objectively, even if Seahill subjectively intended to cloak everything in privilege.

[92] It was also argued that the investigation of Mr Mackie was represented to be an independent workplace investigation required by occupational health and safety law, and the purpose of providing legal advice to Seahill is objectively subsidiary to the purpose of conducting an independent workplace investigation to comply with Statute law.

[93] It was submitted for Mr Stephen that it cannot be said that the purpose of providing legal advice to Seahill "prevails" over the other purposes for conducting the investigations.

CONSIDERATION

Are the documents subject to legal professional privilege?

[94] I have given consideration to each of the arguments for Mr Stephen that the documents sought by him are not subject to legal professional privilege. It is helpful to have regard to the chronology of events. Mr Stephen made his application on 28 September 2020, making a range of allegations that Mrs Fitzgibbons, the sole Director of Seahill had engaged in repeated unreasonable behaviour toward him that created a risk to his health and safety. Mrs Fitzgibbons is 90 years of age. Mr Stephen is the Operations Manager in the business in which she is the owner.

[95] The Form 73 response to the application prepared by Ms McCormack of HR Health Insights filed on 14 October included discussion concerning allegations made against Mr Stephen and the need for those allegations to be investigated.

[96] The parties were advised by the Commission on 29 October 2020 that the conference scheduled for the following week was to be adjourned and I would be on leave until 4 January 2021. After being retained on 30 October OWL described in correspondence to the Commission on 4 November that the matter was complex and that Seahill had not yet had an opportunity to investigate Mr Stephen’s allegations and that it had an obligation to do so reasonably quickly. The correspondence indicated for the matter not to be delayed expressing the opinion that delay would create difficulties for Mrs Fitzgibbons and Mr Stephens working together. This is clear evidence of an intention to investigate the allegations a week prior to the Commission’s decision to adjourn on 11 November 2020.

[97] This case is somewhat unusual because Mrs Fitzgibbons, the person named in Mr Stephen’s application, sits at the apex of Seahill as the Sole Director and owner and therefore effectively controls Mr Stephen’s employer Seahill. The response of an employer to an application made under s.789FC varies. In some cases, the employer forms a view supportive of either the applicant, or alternatively the person or persons named by the applicant. In other cases, the employer will adopt a neutral position with respect to the application. In this case the employer and the named person are so closely associated it is difficult to foresee that they could respond to the matter independently from each other. It is hardly surprising that Mrs Fitzgibbons and Seahill would adopt a position to seek legal advice about how to properly respond to the litigation commenced by Mr Stephen and allegations made by him against Mrs Fitzgibbons, given Mrs Fitzgibbons’ role in Seahill.

[98] In my view the email from chambers on 11 November is somewhat of a distraction in this matter. Mr Stephen’s submissions have sought to draw the inference from OWL correspondence that the email from chambers was the reason for Mrs Fitzgibbons and Seahill proceeding to conduct the Hartnett investigation. The evidence supports the conclusion that the investigation was always going to occur. The Form 73 response on 14 October referred to the potential for investigations of allegations concerning Mr Stephen which led to the Mackie investigation. The correspondence from OWL on 4 November foreshadowed matters being investigated. It is logical to conclude that in the particular circumstances of this case Mrs Fitzgibbons and Seahill would seek legal advice.

[99] The dominant purpose for the making or producing of the relevant communication or the preparation of the relevant document in contest, is to be determined at the time the communication or document was made or produced. 12

[100] The letters provided by OWL to the Commission on a confidential basis set out the basis of the Hartnett and Mackie’s engagements by OWL. The letters make clear Mr Hartnett and Mr Mackie were engaged by OWL for the purpose of conducting an investigation into complaints, and to provide a report to OWL to assist OWL provide advice to Seahill, and that all communications are subject to legal professional privilege. This is clear evidence that the obtaining of legal advice, and preparation for litigation was the dominant purpose for the commencement of the two separate investigations and intended subsequent production of work as part of those investigations.

[101] OWL has made references to the email from chambers on 11 November in various pieces of correspondence and has sought to convey various positions including that its decision to pursue the investigations was in alignment with the Commissions ‘direction’, and also made reference to the email as a basis for Mr Stephen participating in interviews as part of its investigations. It has been submitted for Mr Stephen that an email from OWL dated 4 November 2020 and the email from chambers of 11 November both refer to Seahill’s internal investigative processes. However, I do not find correspondence from OWL to be compelling evidence that the chambers email was in truth the reason for the Hartnett investigation, or that the dominant purpose of the Hartnett investigation was not to obtain legal advice or prepare for litigation.

[102] I do not doubt that Mrs Fitzgibbons and Seahill were of the view that the decision to have OWL engage Mr Hartnett, and later Mr Mackie to investigate various allegations could also fulfil a requirement to investigate the Applicant’s bullying allegations in accordance with its own internal policy, or obligations under the Work Health and Safety Act 2011 (Qld) to investigate Mr Stephen’s allegations as well as allegations made against him. The Hartnett investigation would also be in accordance with the adjournment and email from chambers on 11 November 2020. However, none of these things objectively viewed displace legal advice and preparation for litigation as the dominant purpose.

[103] It is notable that in correspondence to Mr Stephen dated 8 December 2020 from Ms McCormack advising of Mr Hartnett’s investigation that the correspondence attached an ‘Interview Protocol for Witnesses’ which stated explicitly that Seahill had appointed Mr Hartnett for the purpose of providing a report to Seahill’s lawyers so that they can provide legal advice to Seahill, and that the report and associated materials are subject to legal professional privilege.

[104] Mr Stephen’s submissions have drawn attention to the use of the expression ‘independent’ investigation in reference to the investigations as indicative of the investigations not being for the dominant purpose of legal advice. In the ordinary course investigations of this nature would be undertaken with an intention of affording procedural fairness in approaching the facts. It seems that issue may have motivated OWL to take an extra step of engaging Counsel to conduct the investigations. That does not detract from OWL having engaged Mr Hartnett and Mr Mackie to undertake the investigations for the dominant purpose of being able to obtain legal advice for Mrs Fitzgibbons and Seahill.

[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.

[107] It has been argued for Mr Stephen that correspondence from OWL stating that “The sole purpose of the investigation conducted by Mr Hartnett is to determine whether the allegations raised by Mr Stephen can be substantiated” is a representation inconsistent with the dominant purpose being to obtain legal advice. The statement in the letter of 22 December is on its face not correct on the facts, however further down in the same letter it is stated that the investigation is to provide legal advice, which was a repetition of what had been said in the ‘Interview Protocol for Witnesses’ attached to Ms McCormack’s correspondence of 8 December 2020. It is sufficiently clear that Mr Stephen and his representatives were on notice about the privilege issue.

[108] I agree with the submission made that the facts in this case are similar to that in Bowker. As was observed by Gostencnik DP:

“They say that there is no suggestion that DP World always intended that its consideration of the Gunzburg Communications would be limited to identifying and considering legal exposure by seeking legal advice. This seems to me to be a an overly narrow view of the scope of legal advice that might be sought or given. For example, legal advice might be sought or given about the steps that should be taken to rectify identified breaches of occupational safety law or about steps that might be taken to avoid repetition of conduct identified by an investigation report as having occurred.”

[109] Similarly, here, the advice sought does not need to be limited to identifying and limiting legal exposure to Mr Stephen’s application in order for it be subject to privilege.

[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.

[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.

Was their inconsistency bringing about waiver of legal professional privilege?

[112] It has been argued for Mr Stephen that in the event the Commission were to find the documents were subject to legal professional privilege, that privilege has been waived in this case because of inconsistency. Mr Stephen has relied on the decision in Bluescope where a Full Bench of the Commission held a representation that a firm of solicitors had been engaged to carry out an “independent review” of a termination was conduct inconsistent with the maintenance of privilege. The Full Bench in Bluescope referred to the relevant principles concerning waiver in Mann v Carnell as follows:

“Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is "imputed by operation of law" [e.g. Goldberg v Ng (1995) 185 CLR 83 at 95]. This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.”

[113] In this case Mr Stephen always objected to being interviewed as part of an investigation and described it as an ‘abuse of process’. The parties exchanged copious strongly worded correspondence, including whether Mr Stephen could be directed to participate in the investigation, and whether attempts to direct him to participate were coercive and a breach of his workplace rights.

[114] It is true as observed above, that the representatives of Mrs Fitzgibbons and Seahill sought to rely on the email from chambers as a basis for Mr Stephen to participate in the investigation but ultimately, he has yet to be properly interviewed about the matters of fact in contest.

[115] Mr Stephen has had the benefit of robust legal representation. Mr Moore sent correspondence to OWL on 21 December complaining about, among other things the direction for Mr Stephen to be interviewed. The transcript of the interview with Mr Hartnett also records that Mr Stephen’s barrister Mr Rebetzke made a complaint to Mr Hartnett, and the interview was then adjourned pending a scheduled conference before the Commission before addressing any significant issues of fact. Since that time Seahill has provided undertakings to the Commission not to terminate Mr Stephen (subject to certain exceptions) pending the determination of the s.789FC application.

[116] These circumstances are distinguishable from the facts in Bluescope where Mr Brown did not have the benefit of legal advice and participated in the ‘independent’ review of his dismissal which was subsequently completed, and then it would appear, was relied upon by the employer in advising Mr Brown that its decision to dismiss was not changed by the outcome of the ‘independent’ review. Mr Brown was advised if he agreed to participate in the review the employer’s decision may be reversed. The completed investigation report was then available to the employer for the purposes of the unfair dismissal case.

[117] The same fairness grounds as were determinative in Bluescope are not present here, and I am not satisfied inconsistency has resulted in waiver of privilege. Further there is also no evidence of any documents being created before OWL was engaged on 30 October 2020 for which it could be said privilege was waived.

[118] I have concluded that the conduct engaged in by OWL and HR Insights in making various representations to Mr Stephen or Mr Moore about the two investigations in all of the circumstances was not of such a nature that privilege has been waived by those representations.

[119] Mr Stephen has also sought the production of the personnel records of several former employees described in category 3(d) of the order sought against Seahill. He has also sought records of meetings between Mrs Fitzgibbons and a number of other employees and diary entries of Mrs Fitzgibbons concerning meetings with these employees.

[120] An objection was made concerning the personnel records on the basis of privacy. On the privacy issue it was submitted for Mr Stephen that disclosure is regulated by the privacy principles and the relevant privacy principle was principle 6. The Respondent said there is a specific exclusion for a court/tribunal order. I am satisfied that the exclusion would apply to the type of order in contemplation in these proceedings.

[121] It was submitted for Mr Stephen that the similar fact evidence ground was relevant for the purpose of determining relief, and the same argument relates to conduct that has occurred since the application was filed. It was submitted for Mr Stephen that credit could be a legitimate forensic purpose for the production of documents.

[122] It was put against Mr Stephen’s submission that Mr Stephen is not submitting or providing evidence to suggest others have said they were bullied by Mrs Fitzgibbons. It was submitted such evidence would be objected to anyway, however it would not be appropriate to make a production order on the basis of hearsay assertions of similar fact evidence. I accept on the material before me there is not a sufficient basis to order the production of the personnel records of the other former employees, or the records of meetings between Mrs Fitzgibbons and these other employees or her diary notes at this stage on the basis if either similar fact evidence or relevance. I may revisit my view on whether such documents should be required to be produced once the respective cases have been filed and the matters in dispute crystalise.

[123] Given there was no contest about the orders for production sought by Mrs Fitzgibbons and Seahill against Mr Stephen, and I am satisfied it is appropriate to make those orders, they will be issued concurrently with this decision.

[124] The orders directed at Mr Hartnett will be dismissed. The orders directed at Mrs Fitzgibbons, Seahill and Fresh HR to the extent they are directed to production of documents regarding the investigations are dismissed. The orders directed at Ms McCormack will be issued to the extent that certain documents produced up to 30 October 2020 by Ms McCormack were not subject to privilege.

[125] Mrs Fitzgibbons and Seahill did not contest the production of Mr Stephen’s own personnel records, or phone records of Mrs Fitzgibbons for the period 1 February 2020 to the point of commencement of the application on 29 September 2020. There was also no contest to the production by Fresh HR Insights of the documents in category 7(a) in the Form 52 application directed at Fresh HR. Orders to this effect will also be issued concurrently with this decision.

[126] The matter will be issued for a Directions Hearing by telephone on Tuesday 2 March 2021.

COMMISSIONER

Appearances:

Mr G. Rebetzke of Counsel instructed by Archibald & Brown Lawyers appearing for the Applicant.
Mr T. Spence of Counsel instructed by O’Reilly Workplace Lawyers appearing for the Employer and Person Named.

Hearing details:

2021,
Brisbane:
February 15

Printed by authority of the Commonwealth Government Printer

<PR727216>

 1   See Application by Mr Benedict Hardless [2019] FWC 2114.

 2   See Esso Australia Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49, 64 [35].

 3   [2017] FWCFB 2200.

 4   [2019] FWC 2114.

 5   [2015] FWC 7887.

 6   In support of that submission reliance was placed on a FWC Full Bench decision in Kennedy v Qantas[2018] FWCFB 3847.

 7 [2017] FCCA 497.

 8   [2011] FWA 8756 at [10]-[13].

 9 [2006] FCA 571.

 10   See AWB Ltd v Cole and Another [2006] FCA 571 at paragraphs 105-110.

 11   Appeal by Bluescope Steel Ltd against decision of Tolley C of 15 August 2005 [PR961413] Re: Brown, Guidice J, Duncan SDP, Blair C, 3 November 2005 [PR964604].

 12   The Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2015] FCA 1247 at [30 (5)].