A Melbourne worker has successfully forced his ex-employer to hand over an external investigation report to aid with his Fair Work unfair dismissal claim. The worker had been placed on a performance improvement plan following an alleged incident where he loudly banged on a bathroom door while a client was showering inside.
An investigation into the incident was conducted by an external barrister. The employer tried to keep the investigation report secret, citing legal privilege. However, the Fair Work Commission ruled the employer had waived that privilege as it previously revealed too many details about the investigation to the worker.
In this article, we’ll cover the events of this unfair dismissal VIC case: Mr. James Crafti v Cohealth Limited [2025]. We’ll also look at another Fair Work unfair dismissal case where a worker unsuccessfully challenged their termination of employment following a performance improvement plan process.
Fair Work unfair dismissal: Employer forced to hand over investigation report
James Crafti began working as a Community Health Worker at Melbourne-based not-for-profit Cohealth Limited in March 2019. He worked at Cohealth’s Innerspace drop-in facility in Collingwood, Melbourne, assisting clients who used drugs. The events that led to Mr. Crafti’s termination of employment began on 26 June 2024. On that day, a Cohealth client made a verbal complaint against Mr. Crafti. The client alleged that Mr. Crafti had loudly banged on a bathroom door six times while they were showering.
Cohealth launched an internal investigation, placing Mr. Crafti on non-client facing duties pending the outcome. In July 2024, a meeting to discuss the allegations was scheduled. However, Mr. Crafti, who was a member of the Australian Services Union, disputed the process. His complaints with the investigation included that it lacked procedural fairness. This was because the client had not made a statement and that two of the four allegations were vague. Cohealth denied this had been the case.
External investigation launched
Mr. Crafti’s Fair Work unfair dismissal claim detailed how he sent an email indicating that he was “putting the entire investigation in dispute.” This was because he believed it did not follow the dispute resolution procedure within Cohealth’s enterprise agreement. He then refused to participate in the internal investigation. This is when Cohealth sought legal advice from Lander & Rogers solicitors.
Cohealth subsequently engaged a barrister to conduct an external workplace investigation into the complaint, so that Lander & Rogers could provide legal advice. Cohealth told the Australian Services Union that it had done this due to Mr. Crafti’s complaints about the internal investigation and the serious nature of the allegations.
Unfair dismissal VIC: Worker appeals performance improvement plan decision
At the conclusion of the external investigation, Cohealth issued an investigation outcome letter. This stated that two allegations were substantiated and one partially substantiated. Mr. Crafti was issued a written warning and placed on a performance improvement plan. Mr. Crafti appealed this decision, citing a “failure of natural justice.” In an email to Cohealth, he said that its enterprise agreement states that an employee being investigated should be provided with “any relevant material which forms the basis of the concerns.”
Mr. Crafti said that he had not been provided with a witness statement used to substantiate one of the allegations. He said that the person who decided on the outcome of the report had access to the investigation report, but he did not. He therefore requested that he be given access to it so he can provide a response to it.
Termination of employment for refusing performance improvement plan
Cohealth replied to this email by telling Mr. Crafti that he would not be provided with the external investigation report. He was eventually sacked on 19 June 2025. Cohealth said the termination of employment was due to Mr. Crafti’s refusal to take part in the performance improvement plan. Also, for demonstrating “insufficient improvement.”
Mr. Crafti then lodged a Fair Work unfair dismissal claim. As part of his claim, he applied for an order compelling Cohealth to produce the external investigation report compiled by the barrister. He argued these documents were relevant to his Fair Work unfair dismissal claim.
Employer cited legal advice privilege in response to unfair dismissal claim
Cohealth said it didn’t need to hand over the report as it came under the protection of legal advice privilege. It argued to the Fair Work Commission that the “dominant purpose” of engaging Lander & Rogers was to conduct an investigation and receive legal advice. However, Mr. Crafti argued that even if legal privilege was initially established, Cohealth had subsequently waived it through its correspondence with him.
Employer case falls apart
The Fair Work Commission formally heard Mr. Crafti’s request for an order to produce documents in October 2025. It first examined whether the dominant purpose for Cohealth commissioning the investigation was the provision of legal advice. This was required to establish legal professional privilege. The Commission found that Cohealth held “multiple purposes” for the external investigation: a legal advice purpose and an employment disciplinary purpose.
The Commission accepted that the barrister’s purpose was privileged as it was to conduct the investigation and provide legal advice to Cohealth about the complaint. However, it was not satisfied that this was the dominant purpose held by Cohealth itself. The Commission noted that there was no evidence that Cohealth had primarily sought the investigation to obtain legal advice.
Employer waived right to legal privilege, ordered to produce report
The Fair Work Commission therefore found that the legal advice purpose was not the dominant one. This meant that the report was not protected by legal privilege. The Commission proceeded to consider if Cohealth waived its legal privilege. It focussed on the investigation outcome letter. Cohealth submitted that the disclosure of key details of the investigation was necessary to explain why Mr. Crafti was being placed on a performance improvement plan. It argued that to have done otherwise would have risked procedural unfairness.
The Commission rejected this argument, finding that the disclosures went too far. It said that the letter “identified the evidentiary basis” of substantiated or partially substantiated allegations. The disclosure of the investigation’s findings and the evidentiary basis for them was not done to prove an opportunity to respond or propose any disciplinary outcome, the Commission said. It therefore concluded that Cohealth had waived privilege because the disclosure was “inconsistent with the maintenance of confidentiality.”
Due to these findings, the Fair Work Commission ruled that the documents were potentially relevant to Mr. Crafti’s unfair dismissal claim proceedings. Cohealth was ordered to provide him with the external investigation report to him
Failing performance improvement plans
Case Kelly Pritchard v Commonwealth of Australia as represented by Services Australia [2025]. Kelly Pritchard began working for the predecessor agency to Services Australia in 1996. She spent most of her tenure as a service officer, which required her to recover overpayments made to social security recipients. During her Fair Work unfair dismissal proceedings, the Commission noted her type of work called for a high standard of accuracy and is subject to intense public scrutiny. This was particularly the case following the Robodebt Royal Commission.
Concerns regarding Ms. Pritchard’s capability began to escalate in late 2023. This was when she returned to her normal role after spending more than a year in another Services Australia department. Her supervisor downgraded Ms. Pritchard’s proficiency rating to “Learner” due to her absence from debt raising duties during that time. This change meant all of her work was subject to checking, rather than smaller samples.
‘The system needs a kick up the bum’: Failed to meet performance improvement plan targets
Ms. Pritchard’s supervisor raised concerns with management about the way she engaged with customers. She said that Ms. Pritchard’s manner was inconsistent with standard practice, often resulting in “superfluous or unauthorised” comments. Services Australia initiated a three-stage performance management process spanning over a year.
The first stage, which ran from January to March 2024, involved weekly reviews against three targets, including a 95% “Quality On Line” accuracy rate. In her Fair Work unfair dismissal claim, Ms. Pritchard admitted that she did not meet these targets in any one week.
From March to September 2024, her performance improvement plan goals were reduced to two. However, in Fair Work unfair dismissal proceedings the Commission noted Ms. Pritchard only met both goals in one week. Mistakes continued, including failures in privacy verification and providing personal views to customers. On one call, she told a customer, “the system needs a kick up the bum.”
‘I’m about to lose my job anyway so why not’
During stage three from October to December 2024, Ms. Pritchard was warned that failure to meet expectations could result in termination of employment. During this period she was counselled about taking extended breaks and making inappropriate comments to customers. This included telling one, “I’m about to lose my job anyway so why not.”
At the end of the period, Ms. Pritchard’s supervisor recommended that she be fired.
She was sent a letter saying that Services Australia was considering her termination of employment due to poor performance. Ms. Pritchard was eventually sacked in April 2025 and subsequently lodged a Fair Work unfair dismissal claim.
Unfair dismissal VIC: Argued she was set ‘unachievable’ PIP targets
In her Fair Work unfair dismissal claim, Ms. Pritchard argued her termination of employment was unjust as the performance management plan had not been fair. She alleged that her supervisor subjected her to “excessive, unfair and biased scrutiny.” Ms. Pritchard argued that the quality targets were subjective and that the 95% Quality on Line rate was “unachievable.” She argued this extreme target meant that “only a perfect score is satisfactory.”
Ms. Pritchard’s union advocated for her, highlighting her long tenure and experience, and that she at times “came close” to meeting her targets. They urged Services Australia to consider the personal and financial effect that the termination of employment would have on her. In particular, its effect on her superannuation entitlements after nearly 30 years of service.
Fair Work Found Termination of employment was fair
Ms. Pritchard’s Fair Work unfair dismissal claim was heard by the Commission in July 2025. It found that Services Australia had a valid reason for her sacking. It rejected Ms. Pritchard’s “unfounded” argument that the performance improvement process was illegitimate and biased. The Commission noted that she was clearly warned about unsatisfactory performance prior to her sacking. She was also notified of the reason for it and had been given an opportunity to respond to the reason.
The Commission noted that Ms. Pritchard’s performance was judged by various people, who used objective standards to do so. It said that the concerns with her work were legitimate given the nature of her role. While acknowledging the impact of Ms. Pritchard’s termination of employment on her personal and economic circumstances, the Commission concluded that these factors did not outweigh the justification for the dismissal.
Ms. Pritchard’s Fair Work unfair dismissal claim was therefore rejected.
Read more: Workplace Investigations: What are my Rights as an Employee?
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