Fair Work Act 2009

s.789FC - Application for an order to stop bullying

[1] On 14 February 2018, Gaynor King made an application to the Fair Work Commission for orders pursuant to Part 6 - 4B of the Fair Work Act 2009 (the Act), dealing with the capacity of the Commission to issue orders for the prevention of workplace bullying.

[2] In the course of a mention hearing with the parties on 28 August 2018 I indicated to them that I considered it may be appropriate, of the Commission's own motion, to require production of an investigation report conducted in relation to workplace complaints made by Ms King in late 2016. The City of Darwin, which is the owner of the investigation report, objects to any order requiring its production. Alternatively, the Persons Named in these proceedings, Paul Dixon, Andrew Jewell and Wendy Sherlock each support an order for production of the investigation report and the Applicant, Ms King does not object to the investigation report being ordered.

[3] On the basis of the material presently before the Commission, the relevant background to Ms King's application is that in November 2016 she made complaints to her employer, the City of Darwin, against the workplace conduct of three people, namely Paul Dixon, Andrew Jewell and Wendy Sherlock. Following her complaint, Jodie Wheeler, Manager People Culture & Capability at the City of Darwin wrote to each of the three people named by Ms King as follows:

• On 16 December 2016 each person was informed that a complaint had been made against them by Ms King; that the complaint related to "inappropriate conduct in the workplace"; and that given the nature of the complaint a formal investigation would be conducted in accordance with the Council's internal complaints procedure with the complaint to be investigated by Minter Ellison;

• On 21 December 2016 further correspondence was forwarded to each of the people named by Ms King providing short particulars about her complaint as well as naming some of the people who Ms King relied upon in support of her complaint. In the case of the letters to Mr Dixon and Mr Jewell the letters also set out that;

"Given the nature of the complaint a formal investigation will be conducted. No findings or decisions have been made about any matter at this stage.

The formal investigation will be conducted in accordance with Council's Internal Complaints Procedure. The complaint will be investigated by Minter Ellison. In addition I advise that due to Christmas and New Year Closures that the matter is unlikely to be actioned until the week of the 9th January 2016.

Council will endeavour to keep confidential all aspects of this investigation. However, some aspects of the investigation may be disclosed to other investigation participants as part of Council's enquiries. You and all other investigation participants are also required to maintain confidentiality. If you are in doubt about when and to whom you may make disclosures about the investigation and related issues, you should contact the undersigned.

You should be aware that it is unlawful to victimise a person who is involved in a complaint because of their involvement. This means you must not victimise or retaliate against the complainant or any other participant in the investigation. Similarly, you should not be victimised as a result of the complaint. If you feel you are being victimised, please contact the undersigned. Any act of victimisation is dealt with seriously and disciplinary action may be taken.

The investigation will involve Gaynor King yourself and any witnesses being interviewed separately by the investigation party.

You will be notified of the time, date and place of the interview. You are entitled to bring a support person or representative with you to the interview. Please find attached a brochure on the role of the support person, for your information.

Once the relevant information has been collected, the investigation party will make findings arising from the investigation. The General Manager Infrastructure will then determine appropriate outcomes. Such outcomes may include no action being taken, a written apology, counselling, a warning, or dismissal, depending on the seriousness of the findings."

[4] An investigation was subsequently conducted by Minter Ellison, apparently with each of Ms King and the people she named in her complaint being interviewed by the person tasked by Minter Ellison to undertake the investigation.

[5] When it completed the investigation report Minter Ellison wrote to the City of Darwin on 10 April 2017, at least in respect of Ms Sherlock and Mr Jewell stating in the latter's case that "[w]e have now completed the investigation. We have found that Mr Jewell's conduct and behaviour was inappropriate in two of the three allegations and as such amounts to a breach of the Employee Code of Conduct (Code)". The correspondence in respect of Ms Sherlock referred to a finding that there had been a single breach of the Code.

[6] Having received this advice the City of Darwin wrote to each of the people concerned, including Ms King advising the investigation had been completed. The correspondence to Ms King on 11 April 2017 informed her that:

We advise that Minter Ellison has now completed the investigation of your complaint made on 14 December 2016 of inappropriate behaviour by Mr Andrew Jewel, Ms Wendy Sherlock and Mr Paul Dixon.

The investigator found that each of the perpetrators engaged in inappropriate conduct that was contrary to the Code of Conduct.

Furthermore, the investigator found your evidence to be credible at all times.

As a result I have determined to take disciplinary action against all three perpetrators in the form of a counselling session which is the first step as set out in the Disciplinary Procedure.

[7] Similar correspondence was sent to each of Mr Dixon, Ms Jewell and Ms Sherlock, on 18April 2017 with the correspondence to Mr Dixon disclosing:

We refer to the complaint raised by Ms Gaynor King that you engaged in inappropriate conduct and behaviour in the workplace.

City of Darwin engaged Minter Ellison to conduct an independent investigation into the allegations. That investigation is now complete.

Minter Ellison found that your behaviour and conduct in the workplace was inappropriate and fell below the behavioural standard provided for in the Employee Code of Conduct (Code).

On that basis we conducted a formal counselling session with you on 13 April 2017. A copy of the investigator's findings were provided to you during the counselling session.

[8] It is argued by the City of Darwin that the investigation report is covered by legal professional privilege and that an order for production should not be issued, or in the first alternative that should it be produced then it should be done in a redacted form and only to the Commission not to the Applicant or Persons Named and in the second alternative that should it be provided in unredacted form that it only be provided to the Commission and not to the Applicant or the Persons Named.

[9] It is not in contention between the parties that the principles upon which the Commission should proceed are set out in detail in the matter of Sharon Bowker, Annette Coombe and Stephen Zwarts v DP World Melbourne Limited and Others,[1] (Bowker). I respectfully concur with the principles enunciated by Deputy President Gostencnik in that decision, and for that reason I do not consider it to be necessary to repeat Bowker's full reasoning in this decision.

[10] It is be noted that in Bowker the Deputy President considered the production of a number of documents which appeared to traverse the initiation, commencement, undertaking and completion of an investigation into workplace complaints, as well as questions posed and clarifications made after completion of the investigation report in question. Having noted the three categories of legal professional privilege as "advice privilege", litigation privilege" and what he characterised as an extension of "litigation privilege", involving communications between a lawyer and third parties at the time litigation was on foot or reasonably contemplated,[2] the Deputy President concluded the documents in question fell into a category of "advice privilege".[3] He also noted that the legal advice sought in the matter was in the context of substantive proceedings having already been commenced.[4]

[11] For present purposes, and upon application of the reasoning in Bowker, two questions arise for consideration in this decision;

• Was the dominant purpose of the document to obtain legal advice or legal services in relation to a proceeding? and

• Whether legal professional privilege has been waived by the City of Darwin?

[12] The Persons Named, who support an order for production of the investigation report in this matter note that there has been no endeavour on the part of the City of Darwin to properly characterise the investigation report,[5] with there being no evidence before the Commission about the decision to obtain the report instructions given in respect of its preparation or similarly of any request for advice by the Council. The Persons Named also note that, in any event the City of Darwin has waived privilege by its conduct since it invites the Commission to make findings as to the conduct engaged in by each of the Persons Named.[6] In this latter regard, the Persons Named refer to the submissions made by the City of Darwin, which presumably are put forward by the Council for the purpose of the Commission making findings consistent with the submission:

"5. It is clear that there were inappropriate interactions between the Applicant and Respondent Employees in November 2016.

6. The alleged behaviour was thoroughly investigated by a third party.

7. The outcome of the investigation was that the behaviour of the Respondent Employees amounted to a breach of the Respondent's Code of Conduct (Code).

8. The Applicant submitted that the investigation substantiated two findings against Andrew Jewell. This is incorrect; the investigation only substantiated that Andrew Jewell had behaved inappropriately in one incident which involved Wendy Sherlock.

9. There was no finding in the investigation that the behaviour of the Respondent Employees amounted to 'bullying behaviour' but instead that on isolated occasions, the Respondent Employees had behaved inappropriately."[7]

[13] In Bowker it is noted that the assessment of whether or not the dominant purpose of the communication is to obtain legal advice or legal services in relation to proceeding is a question of fact to be determined objectively, with it being said that;

"[20] The Applicants submit that legal professional privilege and client legal privilege under the Evidence Act are available where the dominant purpose of a communication is to obtain legal advice or legal services in relation to a proceeding. As to legal professional privilege founded on litigation privilege (and presumably client legal privilege founded on s.119 of the Evidence Act, the mere fact that a communication occurs at a time when proceedings are on foot is not enough to establish that legal professional privilege applies - in respect of legal professional privilege it is the purpose of the communication which is decisive. Whether or not a communication has that dominant purpose is a question of fact to be determined objectively. A dominant purpose is that which is clearly paramount. It is more than the primary or a substantial purpose. The Applicants also submit that it is open to find the dominant purpose test is not satisfied where the document was always to be deployed for non-privileged purposes, which purposes were of 'significance' even though the privilege purpose 'may' have been the most important single factor. All of this is undoubtedly correct" (references omitted)

[14] It is unlikely in the scheme of the interactions by the City of Darwin with its employees in December 2016 and afterwards about the appointment of a third party investigator, in this case a firm of solicitors, Minter Ellison, but which could have easily been any other investigator whether or not practicing as lawyers, that the dominant purpose of the document was to obtain legal advice. Each of the relevant parties was told that complaints had been made by Ms King; that those complaints were to be investigated by someone; the point of reference for the investigation would be the Council's Internal Complaints Procedure and Roles and Responsibility Guidelines; and that findings may be made as a result of what the investigator established. The finalisation letters referred to the investigation report and in Ms King's case that her evidence had been accepted as credible. In the case of the Persons Named, each was informed that their conduct, at least in one respect, had fallen "below the behavioural standard provided for in the Employee Code of Conduct".

[15] Certainly there can be no characterisation at that time that the investigation report was commissioned for the purposes of legal services being provided to the Council in relation to a proceeding, given at that time none was contemplated.

[16] With the background referred to; the fact that the City of Darwin has not put forward with any particularity the legal advisory purpose held by commencement of the investigation report; together with the fact that no anti-bullying application was made to the Commission until well after the report had been completed leads to the conclusion that the dominant purpose of the investigation was not to obtain legal advice or legal services in relation to a proceeding. From what is before the Commission, it seems unlikely that this was even its primary or substantial purpose. What is evident from the material before the Commission is that the dominant purpose of the investigation was to inquire into Ms King's complaints; to test if its Code had been breached and if so, to hold the transgressors to account.

[17] In relation to the second of the questions to be posed, namely whether legal professional privilege has been waived by the City of Darwin, and on the premise that the dominant purpose of the investigation report was to obtain legal advice or legal services, it is noted that Bowker found in relation to a summary of the investigation report then before the Commission that:

"[34] The Gunzburg Summary does no more than to set out the particulars of the specific complaints made by Ms Bowker and Ms Coombe and to set out the finding made, in the sense that it indicates whether the matters complained of were able to be substantiated, were not substantiated or were not able to be substantiated. The Gunzburg Summary appears to me to disclose no more than the conclusions reached by Mr Gunzburg, and not the substance of his report or the reasons for reaching any particular conclusion. Again on its face, neither the Gunzburg Summary nor its attachment to the witness statement of Mr McCluskey show that there is some inconsistency with the maintenance of confidentiality of Mr Gunzburg's report and the Gunzburg Communications as a whole."[8]

[18] In this case, it is apparent from the communications from the City of Darwin to all concerned, as well as to the submissions to this Commission that there has been more than a summary communication of its contents both to Ms King and the Persons Named, with it able to be found that legal professional privilege has been waived as a result of the subsequent conduct of the City of Darwin. In particular I note the following communications:

• Ms King received a copy of the Minter Ellison close-out letters, dated 10 April 2017, which set out the findings made and why they had been made;

• The consequential letters to each of the Persons Named, also in April 2017, advised each that they had been found, by Minter Ellison, to have exhibited inappropriate behaviour and conduct and that they had transgressed the Council's Code of Conduct;

• Correspondence from the Council to United Voice, the Persons Named, in May 2017, defending a claim of a denial of procedural fairness set out in great detail the process actually employed by the investigator; and

• That the Council's submissions to the Commission seek findings be made on the basis of the investigation report, including that the conduct complained of by Ms King had been the subject of a thorough investigation and that "no finding in the investigation that the behaviour of the Respondent Employees amounted to 'bullying behaviour' but instead that on isolated occasions, the Respondent Employees had behaved inappropriately".[9]

[19] As a result of the foregoing, I find that the investigation report conducted for the City of Darwin is not covered by legal professional privilege and is required to be produced in the forthcoming proceedings.

[20] A further consideration is whether either the first or second alternative as put forward by the City of Darwin should be accepted with the report either to be provided in redacted form to the Commission only or to be provided only to the Commission in unredacted form for its inspection. I am not attracted to either possibility.

[21] My understanding of the investigation report, which has not been seen by me, is that it relies upon the interviews not only by the investigator with Ms King and three Persons Named, but also five other witnesses.[10] At least three people were named in Ms King's 2016 complaint, and one would assume that they are three of the five who were interviewed by the investigator. If these are not part of the five witnesses, or they are not one of the other people ordered by the Commission to attend for the purpose of giving evidence on behalf of one or other of the parties, application may be made by the Council - after production of an unredacted copy of the investigation report - for certain names to be redacted before the document is communicated to all parties.

[22] The second alternative, of the investigation report being viewed only by the Commission, is highly problematic having regard to the obligation of the Commission to conduct its proceedings impartially and fairly and in accordance with the principles of procedural fairness.

[23] As a result, the Commission's orders will be as follows:

1. A complete and unredacted copy of the investigation report into Ms King's 2016 complaints about Paul Dixon, Andrew Jewell and Wendy Sherlock, together with all attachments and appendices, however described, is to be filed in the Commission both in hard and soft copy, by no later than 12:00 PM AEDT, Monday 1 October 2018.

2. If the City of Darwin seeks any part of the investigation report to be redacted it is to identify the pages and words it seeks to be redacted also by no later than 12:00 PM, AEDT, Monday, 1 October 2018.

3. In the event that no request for redaction are made by the City of Darwin a soft copy of the investigation report will be provided to each party in these proceedings and their representatives by no later than 9:00 AM AEDT Tuesday, 2 October 2018.

4. Should any requests for redaction be made by the City of Darwin, the Commission will determine the matter and will advise the parties of a timeline for determination of the matter if that becomes necessary.

[1] [2015] FWC 7887.

[5] Persons Named Submissions, 18 September 2018, [4](b).

[7] City of Darwin Outline of Submissions, 26 August 2018.

[8] [2015] FWC 7887.

[9] City of Darwin Outline of Submissions, 26 August 2018, [9].

[10] See Correspondence from the Council to United Voice, 3 May 2017.

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