Lessons from Super Retail Group (Part 2): Trial by Media

In the first part of our series of articles on the ongoing Super Retail Group whistleblowing case we explored some of the implications for organisation. In Part 2, we will focus on the role of the media in this and other high-profile whistleblowing cases.‍

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To recap, two senior employees, Rebecca Farrell and Amelia Berczelly, represented by Harmers Workplace Lawyers, were expected to commence legal proceedings against the Super Retail Group (SRG), when the organisation issued an ASX announcement on 26 April 2024, estimating potential claims to range between $30 million and $50 million. 

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Although neither whistleblower (Ms Farrell and Ms Berczelly) were explicitly named, the statement generated widespread media interest and publicity.

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Concerned that the announcement was misleading and disclosed confidential ‘without prejudice’ content, Ms Farrell and Ms Berczelly felt that it directly led to media reports, which constituted an attack on them, putting their health and safety at risk.

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Harmers’ press release highlighted serious governance concerns within the organisation, summarised in the following key points:

Three days later, Harmers Workplace Lawyers issued a press release under the emergency protected disclosure provisions of the Corporations Act 2001, which allows whistleblowers in certain circumstances to approach the media.

1. To date, Harmers acts for four clients who are whistleblowers against SRG under the Corporations Act. Since SRG’s ASX recent announcement, Harmers stated that ‘we have been approached by a further number of current and ex employees’ have come forward with similar concerns’.
   
   
2. A third party, not associated with SRG, also came forward with key evidence of the previously undisclosed personal relationship between SRG’s CEO, Anthony Heraghty, and his direct report, SRG’s former Chief Human Resources Officer, Jane Kelly.
   
   
3. Both Harmers’ clients felt that SRG’s announcement was aimed at them and have each made Protected Disclosures within the meaning of the Corporations Act, within recent months, to the non-conflicted members of SRG’s Board and, in one case, to SRG’s external auditor, PriceWaterhouseCoopers.
   
   
4. Both whistleblowers claim that SRG’s ASX announcement and subsequent media coverage ‘amounts to victimisation’ and is causing them ‘additional damage’.
   
   
5. A draft Statement of Claim provided by one of the two whistleblowers outlined ‘serious governance and conduct issues within SRG’. Harmers argued that SRG’s ASX announcement selectively misrepresented these issues, focusing exclusively on claims relating to the personal relationship while ignoring broader governance concerns. (While SRG initially denied the existence of any such relationship, it subsequently confirmed such a relationship to certain staff)

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A further allegation was that an internal whistleblower complaint made in November 2023 through SRG’s whistleblowing platform was mishandled. Instead of being addressed by the Integrity Officer or Head of Risk, it was redirected to HR management, which reported directly to Ms Kelly, a key figure implicated in the complaint.

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What can other organisations learn from SRG’s handling of the case?‍

Although the statements relating to the case are still subject to legal proceedings, they nevertheless offer valuable lessons for other organisations on managing whistleblowing and corporate governance issues effectively:

• Investigation Procedures
  When a case becomes complex, involving multiple complainants, allegations and governance concerns (undeclared conflicts of interest or intimate relationships), organisations should take a multidisciplinary approach, to ensure all aspects of the case are thoroughly examined.
  
  
• Effective Escalation
  Organisations must ensure that all whistleblowing complaints are escalated effectively. A complaint implicating the CEO, for instance, must be directed to the Chair of the Board or an independent body. Under no circumstances should the individual implicated in a complaint handle the complaint.
  
  
• ‘Trial by Media’
  As discussed briefly in our first article, public disclosure can have immediate and lasting impacts on whistleblowers, including feelings of unfair treatment, isolation, career and reputational harm. Organisations must work hard to resolve disputes internally and confidentially, involving the media only as a last resort.

Lessons in Governance and Trust‍

The SRG case highlights the importance of building robust governance frameworks and handling whistleblowing and governance concerns with integrity, care and without bias. To help avoid the complexities and risks associated with ‘trial by media’ scenarios, organisations can: 

• Provide clear, accessible and impartial whistleblower mechanisms
• Take allegations seriously and investigate them without bias or undue influence
• Ensure confidentiality to protect all parties from psychological or reputational damage
• Addressing complaints in a neutral manner, focusing on the merits of the issues rather than questioning the whistleblower’s motivations.

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The team at Veremark Whistleblower Technology Solutions have assisted large numbers of organisations in designing and implementing robust whistleblower programs. We provide Boards and Senior Management with expert advice around whistleblower protection, escalation procedures and engaging with regulators and other external stakeholders when matters of serious misconduct have been reported via a whistleblower program.