What is Legal Professional Privilege?
If a notifiable Work Health Safety (WHS) incident occurs at your workplace, there is a good chance you will be investigated by the relevant state regulator. To protect both an individual’s and an organisation's legal interests, you can incorporate a simple process into your incident management system.
This process involves obtaining legal advice at the earliest opportunity. By doing so, any advice and related documents that are created in regards to the incident will have the protection of legal professional privilege (LPP).
LPP ensures that your organisation can investigate the incident, determine its root causes and make appropriate changes to any of its Organisational Factors or Defences without having to disclose protected information to a workplace safety regulator.
What is LPP?
LPP protects certain communications (written or spoken) between lawyers and their clients from being disclosed in court. It is also known as client legal privilege.
When determining whether a communication or document has LPP attached to it, a court must consider the dominant purpose for which the communication or document was created.
For LPP to apply, a court must agree that the document or relevant communication was created for:
the client to obtain and receive legal advice; and
use in actual or anticipated legal proceedings.
Importance of LPP
Workplace safety regulators have very wide powers of investigation. They can request and obtain information and documentation from employers relating to a workplace incident.
Following a workplace incident, the regulator will investigate whether an organisation or individual has breached relevant WHS legislation.
Employers should conduct their own investigation into the incident. It is in the company's interests to determine the root causes of the incident and understand whether there are any organisational factors with their systems and determine how a similar incident can be avoided in the future.
Doing an investigation internally, without the protection of LPP, makes any related documents discoverable by a regulator, and an organisation will be compelled to provide them to the regulator if requested.
This provides the regulator with evidence that may be potentially used against the company in a prosecution.
Benefits of LPP
The key is to obtain LPP at the earliest possible stage after a notifiable WHS incident has occurred at your workplace. This means that you can properly investigate the incident, understand the issues and potentially implement corrective actions to prevent a reoccurrence.
If this is done under the protection of LPP, it means this information is less likely to be used against you or your company in court.
What can you do?
If a regulator notifiable incident occurs at your workplace, you will most likely be investigated by the relevant state regulator for breaches of WHS law.
Employers should ensure that they are prepared and have an appropriate incident management plan in place to manage such and event.
The plan should incorporate obtaining legal advice at the earliest possible opportunity, so that relevant information can be obtained with the protection of LPP. Any communication that could be used as evidence in court relating to the incident must immediately stop post an incident.
All levels of an organisation’s management should be trained in the key steps to perform when a potentially notifiable or prosecutable incident occurs and how to ensure that LPP is not lost due to their actions.
Example of how to use LPP
You own a company that provides electrical contracting maintenance work. One day an employee receives a severe electrical shock that results in a fatality. Once the incident scene emergency is managed you should consider the need for applying LPP.
What steps do you take?
Stop all communication that could potentially be used as evidence in a court. i.e. don’t send any emails relating to the incident or document details relating to the incident in any way or form to anybody
Immediately get legal advice about LPP
Wait for instructions from your legal council before beginning an investigation under privilege
Do not talk to anyone about the incident or give details about it other than what your legal counsel gives you permission to
Remain in constant communication with your legal counsel and get advice before proceeding with any steps of the investigation under LPP if you are unsure
Remember once legal privilege is lost you expose your business and yourself to litigation.
Note: any documents or evidence obtained before LPP is activated can and will be discoverable in a court of law.
Interested in knowing more?
Further information on Safety Wise Solutions, ICAM Training and other services is available from our website: http://www.safetywise.com/
Additional ICAM Related Services
Safety Wise Solutions also offers the following additional services for sites that adopt the ICAM investigation analysis method:
Quality review of incident investigations using ICAM
Trend analysis of organisational factors contributing to serious incidents
Participation in investigations as an external / independent party
ABOUT THE AUTHOR- John Cannizzaro (Investigator/Trainer)
With much-coveted skills and experience cultivated in aviation and refined in the utilities and FMCG sector, John Cannizzaro brings a highly sought after aspect to the Safety Wise team.
Specialising in safety, quality and environment implementation and auditing, risk management and incident investigation, John combines his unique personal skillset (including determination, strong influencing, facilitation and leadership and relationship management expertise) to deliver compelling and convincing information.
John’s hands-on experience as an aircraft engineer through to corporate HSE management brings a practical, dynamic and passionate approach to health, safety, and environment and quality systems.