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We've all hit send on an email then thought better of it. The quick and casual nature of email correspondence means you probably send and receive hundreds a day, often without much consideration for the wording and content. While some communications are intended to be innocent or merely casual "pub talk", they could be heavily scrutinised down the track and pose an evidentiary obstacle if discoverable in subsequent legal proceedings.

A large bank recently learned the hard way that emails can resurface and cause a nasty headache. In legal proceedings between the bank and a businessman, a number of emails were discovered that revealed a culture potentially supportive of racial bigotry. Internal correspondence between senior executives of the bank contained numerous comments about the businessman (and his wife) to the effect "we are dealing with Indians with no moral compass" and "this has been a very Indian-characteristic transaction". While the bank has denied the comments were intended to be derogatory or reflective of its corporate values, this has become an additional issue in the proceedings. It also poses ramifications from a public relations and reputational perspective.

Similar issues can occur in workplace matters or disputes. A remark in a private email, perhaps intended as an innocuous comment, could be construed negatively and have a detrimental impact on the author and the employer. It is important for organisations to proactively educate workers on what is considered to be appropriate conduct and use of communication systems within the workplace.

But it was meant to be private and confidential...

Like other documents, emails are likely to be discoverable unless they are subject to privilege (most commonly, legal professional privilege—LPP—or without prejudice privilege). Generally speaking, LPP cannot be asserted retrospectively or claimed over documents that were not created for the dominant purpose of obtaining legal advice or in anticipated legal proceedings.

In practical terms, this means even if an employer subsequently seeks legal advice and assistance on a claim by a former employee, written communications that already exist between managers and human resources personnel (or even between co-workers) relevant to the decision to terminate the employee, may be discoverable. Similarly, correspondence immediately following a safety incident that hypothesises causes, without any instruction or involvement of legal representation, may also be discoverable.

There may be a requirement for workplace documents to be produced through a variety of processes. Under applicable WHS legislation, regulators have extensive powers to compel production relating to risks. The Fair Work Commission (FWC) and courts, including the Federal Court, have broad powers to order the disclosure and inspection of documents. However, a further complication is that the FWC is not bound by the rules of evidence and may elect to consider documents traditionally considered private, privileged or confidential.

I'll just label it "without prejudice"

Without prejudice privilege allows parties to explore potential settlement opportunities without fear of any associated documents being used against them in future proceedings. However, this does not mean that simply using the words "without prejudice" will satisfy a claim of privilege.

In Hammerton v Knox Grammar School [2013] FWC 9024, an employee pursued an unfair dismissal claim, alleging she was forced to resign. As part of its defence, the school sought the production of a file from the employee's union that contained documents relevant to negotiations and submissions regarding an ongoing dispute between the parties. The employee objected to the production of these documents on the basis they were part of "without prejudice" communications.

The FWC determined the documents should be produced as the employee had put certain facts in issue and the production of these "without prejudice" documents would assist in the resolution of the relevant issues. Although this decision turned on the facts, it is a reminder that labelling a document "without prejudice" may not necessarily prevent it from being discoverable down the track.

What else could go wrong?

As well as the risk of documents being discoverable, there is the possibility that these documents may present other issues for the employer. For example, documents that emerge in the context of a litigated dispute (such as an unfair dismissal) may demonstrate or highlight potentially inappropriate use of communication systems by other employees. This may necessitate a separate process to deal with potential misconduct and could present a further legal minefield.

There are many cases in which employers have experienced challenges when managing misconduct issues involving the use of internal communication systems. In Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2016] FWC 1816, a terminated employee was reinstated after it was found that a reference to the Director of the Catholic Mission as "Mission Impossible" in internal emails was a misguided attempt at humour and not sufficiently serious to warrant termination.

In Anderson v Thiess Pty Ltd [2015] FWCFB 478, the FWC found that although the employee had engaged in inappropriate conduct by expressing anti-Muslim rhetoric in emails to colleagues, the failure of the employer to proactively train employees on relevant policies and expectations of appropriate email use undermined the reasonableness of the decision to terminate.

It is incumbent upon employers to reiterate to employees that their use of internal communication systems may be monitored and they should keep their interactions professional.

Think before you put it in actual or electronic ink

Workplaces should not be discouraged from keeping appropriate business records. However, employers should turn their minds to any potential ramifications if these documents are exposed to an unintended audience down the track. It is recommended that employers and managers:

  • adequately document discussions but keep the language and tone appropriate and professional
  • use the "newspaper test", that is, refrain from putting anything in writing that you would not be comfortable defending in public or saying to a person's face
  • when dealing with a difficult situation, avoid raising personal sentiments unless relevant to the issue being explored
  • performance-based feedback should be presented in a constructive and balanced manner (ideally in person at first then confirmed in email), and
  • before you send an emotionally charged or reactive email, consider asking a colleague to review it or leave it in your drafts folder for a period of time before re-evaluating if it is appropriate to send.

The best way to avoid embarrassing exposure down the line is to be proactive in your approach to training employees on document management and appropriate workplace behaviour. This may be achieved through maintaining current policies and procedures that adequately cover employee expectations and foster strong workplace values.

We would like to acknowledge the contribution of Layla Langridge to this article.
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