Using external lawyers may not protect investigation reports, FWC ruling shows
An employer's workplace investigation report lost legal privilege protection despite being conducted by a lawyer-engaged barrister, the Fair Work Commission ruled.
Cohealth Limited learned this lesson the hard way when Deputy President Farouque ordered the organization to hand over its confidential investigation report to the employee it investigated and later dismissed. The decision, issued on October 31, 2025 and updated on December 4, 2025, challenges a common assumption among HR departments about protecting sensitive workplace investigations.
The case involved James Crafti, who worked as a Community Health Worker at Cohealth's Innerspace facility in Collingwood, Victoria, from March 18, 2019, until his dismissal on June 19, 2025. The trouble began on June 26, 2024, when a client made a verbal complaint about an interaction with Crafti.
Cohealth started an internal investigation in early July 2024, interviewing four employees and providing Crafti with summaries of witness statements. But when Crafti disputed the investigation process and claimed he was being denied procedural fairness under the enterprise agreement, Cohealth contacted its lawyers at Lander & Rogers on August 2, 2024.
The law firm then engaged barrister Daniel Fawcett to conduct what it described as a factual investigation. The engagement letter stated: "To enable us to provide legal advice to cohealth, we have been instructed to engage you to undertake a workplace investigation into its employee, Mr James Crafti (NSP/Community Development Worker)."
Meanwhile, Cohealth told Crafti's union representative something different. On August 23, 2024, Senior HR Business Partner Sally Mizzi wrote that "cohealth has made the decision to engage an external independent investigator to finalise the investigation on our behalf" due to concerns raised about the internal investigation and the serious nature of the allegations.
Fawcett interviewed witnesses starting in September 2024 and eventually interviewed Crafti in October and November 2024. His investigation found two allegations substantiated and one partially substantiated. On December 19, 2024, Cohealth issued Crafti a written warning and placed him on a Performance Improvement Plan. The letter disclosed not just the findings but also the evidentiary basis, referring to Crafti's statement, witness statements, and the client's statement.
When Crafti's employment ended the following year after he allegedly refused to participate in the PIP, he sought access to the investigation report through the Fair Work Commission. Cohealth objected, claiming legal professional privilege.
The Commission rejected this claim on two grounds. First, it found Cohealth failed to prove that obtaining legal advice was the dominant purpose for the investigation. The evidence showed Cohealth had multiple purposes: conducting a workplace disciplinary investigation and obtaining legal advice. The Deputy President noted that Cohealth's own communications described engaging an external investigator to "finalise the investigation" rather than solely to obtain legal advice.
Second, even if privilege existed, the Commission found Cohealth waived it by disclosing the investigation findings and evidentiary basis to Crafti. The decision quoted an earlier case: "A procedurally fair workplace investigation initiated by an employer the outcome of which is intended to be made known to relevant employees in the workplace and which is to lead, where necessary, to corrective or disciplinary action is not one which ordinarily has a purpose confidential to the employer."
For HR leaders, the case highlights a critical tension. Workplace investigations serve operational purposes like determining misconduct and implementing discipline. Routing them through lawyers doesn't automatically convert them into privileged legal advice documents. And sharing investigation outcomes with employees, even in summary form, may require disclosing the entire report if challenged.
The ruling suggests HR departments need to think carefully about investigation design and whether protecting confidentiality or ensuring procedural fairness takes priority in each situation.
