Employment case law

Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts.

The topic of legal professional privilege and In House counsel, has since been revisited in 2007, by Telstra Corporation Limited v Minister for Communications, Information Technology and the Arts
In this case, there was litigation brought by Telstra against the Minister. As part of a preliminary discovery process, the Minister sought access to certain Telstra documents the subject of its Notice to Produce. Telstra claimed the documents were privileged on the basis that either the author or recipient of the claimed documents
was an internal legal adviser to Telstra and the documents and communications were made for the purpose of providing legal advice.

Findings

Justice Graham held that Telstra had not done enough to satisfy the Court that the documents were privileged and ordered full disclosure of the documents. He noted there was no evidence before the Court going to the independence of the internal legal advisers involved in the communications and it was not enough for
Telstra to simply state that the documents were privileged. His Honour however, did note that it has been accepted that in some circumstances legal advice may be accompanied by advice of another kind which can be separated from it. In such circumstances, only the legal advice will be privileged. However, if the legal advice contains extraneous matter which cannot be separated from it, the legal advice will not lose its privilege for that reason.

Telstra Corp is another example in a string of recent cases in which the Courts have emphasised the importance of adducing sufficient evidence to properly make out claims for legal professional privilege, particularly where in-house counsel are involved, including Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd and Seven Network Ltd v News Ltd.

Conclusion

The tests are:

• Independence of the advice;
• Separation of the advice from other corporate functions;
• Capacity of the advice (whether or not made by a lawyer and whilst performing as a lawyer – usually indicatedby possession of a practicing certificate);
• Dominant purpose of the advice – as legal adviser, or corporate manager?

Uncategorized

Issues of privilege of employment – counsel as provider of privileged advice.

Where the above situation arises, with a general counsel performing dual roles, it is questionable as to the independence of that general counsel’s advice and whether it will fulfill the requirements for legal professional privilege. Prior to 2000, confidential communication (oral or written) between an in-house solicitor and the employer would be protected by legal professional privilege, if they fulfilled the following requirements.

• They are made for the dominant purpose of giving or receiving legal advice or of conducting actual or anticipated litigation. (as was found in Esso Australia Resources Ltd v Commissioner of Taxation).
• There is a professional relationship of lawyer and client between the in house solicitor and employer so as to render the advice independent notwithstanding the employment relationship.
• The solicitor is qualified to practice law and subject to the duty to observe professional standards and liability to professional discipline. (as was found in Waterford v Commonwealth).
Since 2000, communications have not been protected by legal professional privilege simply because they are made by
an in-house solicitor. For the privilege to apply, the solicitor must be acting in a professional, or legal, capacity and the advice must be of a legal nature. The in-house solicitor should hold a current practicing certificate or be otherwise entitled to practice in the relevant jurisdiction. This was decided in Waterford v Commonwealth and Australian Hospital Care Pty Ltd v Duggan.

The independence obligations require that the in-house solicitor, must not be influenced in their advice by their loyalties
or duties to, or the interest of, their employer. The element of independence is relevant in determining whether a document prepared by a general counsel is privileged or not. There are two reasons why such a document may be susceptible to challenge. The first being that the document was not prepared by general counsel in the capacity as lawyer, but in a management capacity. The second is even if the document was prepared by general counsel in the capacity as lawyer, general counsel is not “independent” of the employer.

Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners discussed the “capacity” issue, and whether an in house lawyer may work for their employer in a different capacity. However, “their communications in that capacity would not be the subject of legal professional privilege. So the legal adviser must be scrupulous to make the distinction.” Any party who challenges a claim for legal professional privilege, for a document prepared by general counsel, is likely to argue that the document was prepared by general counsel not in their capacity as legal adviser to their company but in their capacity as an officer of the company providing a management report for the information of management.

Purely from the perspective of legal professional privilege, titles such as “general counsel,” “principle legal officer” and “chief legal officer” are preferable to a title such as “manager, legal services” because the former emphasise the “legal” role whereas the latter emphasises the “management” role.

There are numerous cases in which claims for legal professional privilege have been rejected by courts where they involve
a person with dual roles within an organization. Communications made by a person with dual roles may be found to fall outside the protection of legal professional privilege because they are found to have been made for “mixed purposes (that is, a legal purpose and one or more non-legal purposes) and fail the dominant purpose test or because the person was acting in their “non-legal” capacity when the communication was made.

This occurred in Belle Rosa Holdings Pty Ltd v Hancock Prospecting Pty Ltd and Standard Chartered Bank of Australia Ltd v Antico When considering the “independence issue” a party challenging the claim for legal professional privilege will most likely inquire about such matters as general counsel’s place in the organization hierarch of the company, their remuneration and whether they own shares in the company. There is a risk that the dual roles held by general counsel will be used by opponents in litigation to support an argument that general counsel is not independent of the company because they are part of the senior management team and are therefore responsible for managing the company’s business.
Reporting lines are relevant to the independence issue. It has been suggested that in-house counsel should report to and be solely responsible to the board of directors or, if this is not feasible, to the managing director and that direct reporting and responsibility to other non-legal management should be avoided in order to minimize the perception of loss of independence.

The independence issue was discussed at length in Australian Hospital Care Pty Ltd v Duggan. In that case, two defendants
challenged a claim for privilege made in the plaintiff’s affidavit, in respect of four internal memoranda prepared by the general counsel/company secretary of the plaintiff’s parent company on the basis that he was not sufficiently independent of the plaintiff. The Court referred to previous cases which discussed the independence issue and said that although it is likely that the requirement of independence is an aspect of the requirement that the in-house solicitor must be acting in their capacity as a lawyer, it was nevertheless convenient to consider the requirement of independence “as a separate element.”

The Court held that there was sufficient doubt about whether the general counsel/company secretary was acting independently
at the relevant time. This was because there was evidence indicating that the general counsel/company secretary was directly involved in commercial negotiations relating to the disputed transaction, and the plaintiff’s failure to respond to the defendants’ requests for information regarding the independence issue. His Honour therefore concluded that it was appropriate to order that the four internal memoranda be produced to a judge so that the judge
could inspect them and determine whether they were privileged.
The outcome in Australian Hospital Care is a timely reminder that the issues of capacity and independence are not mere theoretical considerations, but legal requirements which must be satisfied in practice in order that documents which are prepared by general counsel are protected by legal professional privilege.

Employment law

Legal Professional Privilege and Duality

The Evidence Act 1995 (NSW) (the Act) provides the statutory regulation of legal professional privilege in NSW. Paragraph 117(1)(a) (Definitions) provides, that a ‘client’ includes “an employer (not being a lawyer) of a lawyer.” This provides for the growing number of in house lawyers in NSW, that is lawyers working in the wider business community”, rather than in legal services firms.

In addition to this, section 118(a) of the Act provides that “evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: a confidential communication made between the client and a lawyer” or (c) “the contents of a confidential document (whether delivered or not) prepared by the client or a lawyer,” for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.”

Finally, section 119 provides that evidence “is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in the disclosure of…confidential communication…or…contents of a confidential document… for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding…in which the client is or may be, or was or might have been, a party.

Duality

An increasing trend is noted, of appointing the general counsel of public companies to dual roles. In a number of casesthis is the role of company secretary, however it could also extend to a senior management position, reporting directly to the CEO and is thus an executive officer of the company under the Corporations Act 2001 (Cth). It includes general counsel being appointed a director of the company.

Employment case law

Walker v Citigroup Global Markets

The case of Walker is a significant and costly illustration of the liability that a company may expose itself to when it allows its officers to make careless or unprincipled representations during employment negotiations, in order to entice an individual to enter into the employment arrangement.

Walker was recruited by NatWest to take up the position of Senior Research Analyst in their Equities division (at the time the relevant defendant company was NatWest, the shares in which were later acquired by Citigroup). Walker was at the time employed at ABN AMRO, and he was expecting to receive a substantial bonus payment very soon. However, Walker and NatWest commenced protracted negotiation over the terms of his prospective employment. Simultaneously, there was some discussion over the timing of his resignation from the ABN AMRO role, as he was
anxious not to miss out on the bonus payment.

The letter of offer which NatWest sent to Walker referred to a document entitled ‘Executive Conditions of Employment’,
with the proviso that both the letter and the conditions “will form part of your terms and conditions of employment” but it wasn’t attached to that version of the letter. One of the ‘conditions’ was that either party could terminate the employment contract on one month’s notice.

During the negotiation process, NatWest officers made representations to Walker respecting his salary, guaranteed
minimum bonus payments, length of secure employment, and promotion prospects within the company. Soon after these representations were made Walker signed and returned his letter of offer, and was of the understanding that an employment contract had come into existence to which NatWest and himself were parties.
At some point in the process, however, NatWest’s Head of Research decided that employing Walker was no longer an attractive option, but at the same time encouraged him to negotiate a redundancy agreement with ABN AMRO, thereby allowing him to ‘burn his bridges’ with his former employer.

Walker was then told that the NatWest position was no longer available and that there was no contract in existence between them, as he had failed to sign and return all the documentation attached to the letter of offer. This was followed by a letter from NatWest withdrawing its offer of employment. Ultimately, Walker was informed that no position was available and that NatWest completely denied any contractual liability to him. Walker brought an action against the respondent in the Federal Court, claiming that NatWest had breached a valid contract and engaged in misleading and deceptive conduct by its behaviour towards him, which constituted a breach of sections 52 and 53B of the Trade Practices Act.

The primary judge found that a valid employment contract did come into existence and that the letter withdrawing NatWest’s offer was “plainly incorrect and misleading” and constituted a repudiation of this contract. However, the termination clause in the contract only entitled Walker to damages equal to one months’ notice of termination. The breaches of the Trade Practices Act also succeeded, as the primary judge held that NatWest’s representations were misleading, and Walker relied upon them to his detriment.

On appeal, Walker argued that representations made to him during negotiations formed part of the employment contract and the quantum of damages should account for these contractual breaches. The unprincipled behaviour of NatWest officers in encouraging him to end his career at ABN AMRO, in the knowledge that NatWest was no longer interested in employing him, Walker argued, should also be reflected in the quantum of damages awarded.

The Full Court held that although the ‘Executive Conditions’ were contractual terms, to interpret the termination clause literally would negate the representations made at the same time, which would be “an unlikely result in view of the surrounding circumstances and the purpose and object of the transaction, namely, the recruiting of a high level and high profile employee then in other employment.”

If the termination clause were read alongside the representation concerning employment into the next calendar year, then the clause would not become operative until the end of the next calendar year. Additionally, given the skill and experience of Walker, it was very probable that he would have continued to perform competently beyond the next calendar year. Consequently, damages awarded for breach of contract should be increased. The court accepted Walker’s proposal that damages awarded for contractual breach should equal the total earnings (including bonuses) of a NatWest employee of equal rank during the five years after the breach had been committed, minus 25% for contingencies.

The court avoided ‘double recovery’ for Walker’s economic loss by awarding no damages for the established breaches of the Trade Practices Act. But they increased the general damages component from $5,000 to $100,000, in compensation for the “serious long term effects” upon Walker’s personal life resulting from NatWest’s unethical behaviour. The total damages award came to more than $7,500,000.

Conclusion

In other jurisdictions – Canada, the United Kingdom – the courts have long since filled the vacuum created by Governments
“privatising” or “liberalising”, or “de-regulating” the employment relationship. That ideology now prevails in Australia on both sides. Apart from it underlining yet one more indication of the declining role of government (a shrinking public service and incremental privatisation of Government tasks) it removes protection for individuals.

People do not just accept their lot any more, though, and so increasingly look to the courts for judicial protection. The cases described above, when read in conjunction with other principles both home grown and imported, show that the needed protection is very much available. The future is the evaporation of Australia’s unique system of industrial arbitration. The future is the replacement of that ex-system by the rule of law in the Courts.

Uncategorized

Commonwealth of Australia & Anor v Russell Vance

In November 2005, whether a practising certificate is required, was explored by Commonwealth of Australia & Anor v Russell Vance. In this case the in-house counsel was engaged as a legal officer with the Australian Defence Force in the position of Departmental Legal Officer (DLO). The plaintiff sought damages from unlawful termination from the Defence Force and applied for an order requiring the defendants to provide a number of documents for inspection. The application was proposed on the ground that the
documents were the subject of a claim of legal professional privilege.

The primary issue in the application was whether communications from DLOs which contained or purported to contain or relate to the provision of legal advice could be the subject of a claim for legal professional privilege. This involved an examination of the position and function of DLOs and in particular, whether they were lawyers.

The application for privilege was considered at common law and not under the provisions of the Evidence Act 1995 (ACT). His Honour Crispin J, examined Waterford v Commonwealth, which he believed to be most relevant to the proceedings. Waterford stated that the in-house solicitor should hold a current practicing certificate or be otherwise entitled to practice in the relevant jurisdiction. In Waterford, the person who provided the legal advice were ‘lawyers,’ that is, not only were they qualified to practise law in terms of academic prerequisites, but each held a relevant practising certificate.

The evidence then stated that while all permanent military and civilian DLOs were legally qualified and admitted to practice, the military DLOs were not required to hold practising certificates. The plaintiff argued that the defendants’ claim for privilege must fail, because the communications the subject of the claim for privilege were not from persons qualified to practise law and they did not hold relevant practising certificates.

Having considered both Waterford and Attorney General (NT) v Kearney (1985) 158 CLR 500 (both of which maintained the importance of practising certificates) his Honour held that it is ‘difficult to see how these requirements could be regarded as having been satisfied by legal advisors who did not hold practising certificates or, perhaps, worked under the supervision of others with practising certificates, unless they enjoyed a statutory right to practice such as that provided by … the Judiciary Act,’ (which the DLOs did not).

Consequently, his Honour concluded that legal professional privilege will arise to “protect the confidentiality of communications
with a legal advisor only when he or she has an actual right to practice and not merely when he or she has… joined the ADF, even if permitted to carry out ADF legal duties without holding a practicing certificate.” Consequently his Honour was satisfied that any presumption in favour of privilege attaching to the documents in issue had been amply displaced.

The appeal

The Commonwealth sought leave to appeal on the basis that the trial judge had erred by holding that a claim for legal professional privilege could only be brought where a document was authored by a person holding a current practising certificate. The court found that from a consideration of those cases it was possible to conclude that his Honour the trial judge should have applied the provisions on client legal privilege of the Evidence Act 1995 (ACT).

The Court then held that where client privilege may be claimed over a document by an in house lawyer, the question is whether the document would meet the statutory test of being a confidential document, which includes being under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law. This may be more easily answered where the lawyer holds a practising certificate. However, holding a practising certificate is not the definitive test, as long as the statutory requirements are met.

The proceedings were accordingly remitted to the trial judge to consider the question of privilege in accordance with the courts reasons. Therefore in jurisdictions where the Evidence Act applies, then privilege will apply to communications sought to be adduced
in evidence if those communications are to or from a lawyer regardless of whether that lawyer holds a current practising certificate so long as the person is acting in their capacity as a lawyer and for a privileged purpose.

Employment case law

Nikolich v Goldman Sachs JB Were Services Pty Ltd

Nikolich worked as an investment advisor for Goldman Sachs in their Canberra office. Goldman Sachs decided to implement a new ‘partnership’ method of client management, which was touted as having the definite potential to increase the business efficiency and earning capacity of the office.

The new method consisted of several investment advisors forming a partnership in which they pooled their clients and shared client work. Any partner who exited the partnership had to leave their clients behind.

Nikolich formed such a partnership with two other advisors. When one partner resigned and exited the partnership, Nikolich’s supervisor transferred the highest-revenue clients from Nikolich’s partnership to his own partnership. When Nikolich voiced his disquiet with this transfer, the supervisor informed him that he was “greed[y]”, “lazy” and “whinging”, and began to behave in an intimidating and threatening manner.

Nikolich eventually made a written complaint to Goldman Sachs’ Human Resources department. Following several meetings with the applicant, the only action that HR took was to discuss Nikolich’s complaint with the supervisor in question. Nikolich had informed HR that he was feeling unwell and was very stressed, and hated to encounter his supervisor at work. HR advised him to take some time off, or to utilise the company’s employee counselling service.

When Nikolich was informed that the outcome of his complaint was that the supervisor would be moved from the Canberra office, he tried to take the complaint further, claiming that he was now “suicidal” as a result of the harassment he had suffered and that he had now lost an estimated $300,000 in client revenue due to the unjust client reallocation.

He asked for monetary compensation. Goldman Sachs refused to compensate him for any loss in revenue and asked him to resume his normal duties. When Nikolich refused, the respondent terminated his employment. Nikolich brought an action against his former employer in the Federal Court, seeking damages and compensation.
He based his claim upon several causes of action, one of them being founded on a breach of the terms of his employment contract by the respondent. He argued that the provisions of the respondent’s policy manual, a 119 page document entitled “Working With Us” that was provided to him at the same time as the letter of offer, concerning company policies on workplace health and safety, freedom from harassment and concerns or grievances, was part
of his employment contract.

As he was employed as an investment advisor, the vast majority of his remuneration was earned in the form of incentive payments for client work, and therefore his remuneration was largely determined
by the quality of clients that he handled for the respondent.
The Federal Court found that the respondent had no objective procedure concerning client allocation when it obviously
needed one, and that the respondent’s human resources officers were inadequate in their handling of the applicant’s complaint. Turning to the policy manual, the court considered the question of whether the language used constituted ‘lawful and reasonable directions’ or were in fact promises that were binding on both employer and employee?

Wilcox J found that the policy manual was not merely a set of directions to employees. He concluded that the WWU document bound not only the employees of Goldman Sachs, but also Goldman Sachs itself, relying on an earlier decision of the Full Federal Court in which the majority held that a ‘Human Resources Policies and Procedures Manual’ bound an employer such that an ex-employee was entitled to receive the redundancy benefits set out in
the employer’s Manual. The Court found that the relevant provisions of the manual were indeed promises that formed express terms of the applicant’s employment contract.

The circumstances surrounding the delivery of the manual to the applicant such that it accompanied the letter of offer, and the promissory language used within the manual itself (e.g. “We will take every practicable step…”), meant that the provisions of the manual were contractual in nature and were, by their very nature, express terms in Nikolich’s contract. Wilcox J noted that if the policy manual did not bind the respondent in any way, then “those of its provisions that constitute promises by GSJBWS, or which purport to confer entitlements, are misleading…”

Wilcox J found that the respondent knew from the time of Nikolich’s complaint that he was in an extremely distressed state, and was obliged to work in the same office as an intimidating and hostile supervisor. He considered that the respondent’s policy manual created a legally enforceable obligation on the respondent to “take every practicable step to provide and maintain a safe and healthy work environment” and to conduct a proper and timely enquiry
into the applicant’s complaint. The respondent breached that obligation, and consequently, Nikolich was entitled to recover damages for the psychological distress caused by that breach. Over half a million dollars was awarded to the applicant, and comprised compensation for past loss of earnings (by far the greatest component of the award), loss of future earnings, and damages for Nikolich’s pain and suffering.

Goldman Sachs appealed to the Full Federal Court. The majority dismissed the appeal and upheld the decision of Wilcox J, but they came to different conclusions regarding the interpretation of the policy manual provisions. Black CJ and Marshall J held that only the provision relating to employee ‘Health and Safety’ was a contractually binding term of Nikolich’s contract; the ‘Harassment’ and ‘Grievance’ sections of the policy manual were expressed in such
a way that it could not be held that they were “promissory in nature”, as they were couched in aspirational rather than promissory language – the employer would “strive” to achieve certain things, rather than simply “do” them.

The breach of the ‘Health and Safety’ policy, which was constituted by the negligent manner in which the HR department had handled Nikolich’s complaint, was confirmed by the majority to have caused the damage to Nikolich. That document was “prescriptive”, requiring certain standards that were not met by the conduct of Goldman Sachs. Thus the Nikolich appeal confirmed the distinction between “aspirational” and ”prescriptive” policies: corporate aspirations are not contractual; “declarations of intent” are. If Goldman Sachs had not worded its ‘Health and Safety’ provision in the ‘language of obligation’, it would, following the reasoning of the Full Court, not be liable to pay Nikolich damages of over half a million dollars for breach of that obligation.