An applicant in an unfair dismissal claim had entered into a deed of settlement regarding her workers’ compensation claim. The employer at the hearing at first instance said that the deed she entered into at the workers’ compensation conference barred her from bringing an unfair dismissal claim.

The Full Bench has upheld an appeal against the decision of the Commission at first instance ordering that the legal representative of the employee produce to the Commission any notes, not subject to privilege, taken by them at the employee’s workers’ compensation conciliation conference at which the agreement the subject of the deed was reached.

At first instance

At a preliminary hearing in relation to jurisdiction, the employee claimed that she was “forced into resigning” in such a way as to make the ending of her employment a “constructive dismissal”. The Department of Education argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim.

The Department sought, by way of summons directed to the employee’s legal representative for the workers’ compensation matter, documents relating to the workers’ compensation matter. 

The Department argued that the employee, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege.

Matthews C found that, while any note from the conference that is subject to privilege was not required to be provided, the employee had not impliedly waived privilege in respect of the documents (3) and (4) of the summons.

Matthews C determined that the employee’s state of mind insofar as it was created or influenced by the Department was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors.

The Commission ordered that the legal representative produce to the Commission any notes, not subject to privilege, taken by them at the employee’s workers’ compensation conference.

Appeal to Full Bench

The Full Bench unanimously found that, in accordance with s 49(2a), the appeal is against a ‘finding’ and that the matter is of such importance that in the public interest an appeal should lie.

The Department argued that Matthews C erred in finding that the employee had not impliedly waived privilege over documents within items (3) and (4).

Chief Commissioner Scott and Senior Commissioner Kenner noted that while Matthews C concluded that the employee had not relied on advice, other parts of her evidence indicated otherwise. The majority found that she had given express evidence that she received and acted on her legal representative’s advice, and that she had other things affecting her state of mind other than the effect of the Department’s actions.

The majority found that the employee had impliedly waived privilege by disclosing communications with her lawyers in answers to questions asked by the Commissioner at first instance. They concluded that the employee had received advice from her legal representative, and that her evidence and submissions were inconsistent with her maintaining the privilege to which she was otherwise entitled.

The majority upheld the appeal.

Commissioner Emmanuel (dissenting) found that Matthews C was correct to find that the employee did not impliedly waive privilege over certain documents. Emmanuel C determined that on the evidence, she could not find that the employee’s statements put privileged communications in issue and found that no confidential communications were disclosed in relation to advice received by the employee’s representative.

The decision can be read here.