Andrew Douglas: Alright, well why don’t we get onto the main topic, which is the whistleblower case in TerraCom. This is a breach of corporations law, it’s a whistleblower. I’ll get Nina to talk about the facts. Huge fine of $7.5 million so it’s largest fine I’m aware of in whistleblower cases in Australia. And we’ll talk about McBride’s case afterwards cause I don’t want people to lose focus, it’s not just fines you can get for this stuff, you can end up in jail and that’s particularly under public disclosure legislation. But Nina, talk us through the facts.

Nina Hoang:  Yeah so this involved the GM of this TerraCom company, which is a resource company. And they were fired after a month in the job because they raised concerns that the certificates that were being issued for the quality of the coal were being-

Andrew Douglas:  Manipulated.

Nina Hoang: Yeah I was going to say forged but it’s not quite, it was yeah.

Andrew Douglas:  Yep.

Nina Hoang:  It was increasing the quality of the coal, and it was investigated and I think PwC found yeah there were inconsistencies but they didn’t outright dismiss his allegations. And then after all of that, they terminated him.

Andrew Douglas:  Yeah.

Nina Hoang:  Which is just crazy to me.

Andrew Douglas:  And disclosed and not only that, then went on the front foot and disclosed that his allegations were false to the media.

Nina Hoang:  Yeah so then he went to the media.

Andrew Douglas:  Yeah now, he was a whistleblower.

Nina Hoang:  Yeah.

Andrew Douglas:  So the rules and whistleblowers are, you are not to disclose their identity, that’s rule one. And they’re not to suffer a detriment as a result of-

Nina Hoang:  Which they did.

Andrew Douglas:  Yeah so sacked and then destroyed in public, I think that’s a detriment.

Nina Hoang:  Yeah, yeah so that’s why they got hit with the massive fine.

Andrew Douglas: Yeah and look, we’ve only got one case that we’ve… I think we’ve got a few cases we could talk about but really the next case is McBride’s case, I think, which was a public disclosure about war crimes. Where the guy ended up being sentenced to over five years jail, where he had to served two or three. So I just want you to understand there are whistleblower provisions that exist in legislation. But there is also whistleblower procedures that are commonly set up, particularly in the financial sector and other sectors around people who have an entitlement to raise matter and be protected. They are governed by the policy and process that sets them up. But to treat someone adversely as a result, is a clear general protections claim. So and a breach of a whistleblower under general protections would be a horrible claim to wear, and if found to be true would be a devastating award. Cause you get the aggravated damages award to go as well with the general damages. Well, let’s get onto the case study, will we?

Nina Hoang:  Okay. All right so, “Con worked for Value-It Pty Ltd VI, a company owned by Delilah Fanning. VI was engaged to value some land adjoining a soccer pitch. Con told Delilah that the President of the soccer club who owned the land was his brother. She laughed and said, ‘How do you think we get our work?’ Con tried to explained he was instructed by the Bank as the valuation was required to support borrowing a loan application. Delilah waived him away in a dismissive way. Con struggled to work with Delilah. Her instructions were often brief and not clear, and her tone and manner were consistently abrupt, aloof and dismissive. Two months before this valuation job, Con had come home to his wife Effie one night after Delilah had publicly criticised one of his valuations in front of a client and other staff, despite her being wrong.” Is that right?

Andrew Douglas:   Yes.

Nina Hoang:  Her being wrong, right? Yeah.

Andrew Douglas:  Yeah that’s right.

Nina Hoang:  “He felt hurt and slightly intoxicated after drinking too much at a bar he had gone to heal the pain. As he walked through the door, he burst into a Tom Jones impersonation of Delilah singing…” You’re going to have to do this, I don’t know the tune.

Andrew Douglas:  “Why, why, why Delilah?”

Nina Hoang:  Okay.

Andrew Douglas:  ♪ She stood there laughing ♪

Nina Hoang: Okay.

Andrew Douglas: ♪ I felt a knife in my hand and she laughed, no ball ♪

Nina Hoang: I don’t know that song. “Effie hugged him and he cried.”

Andrew Douglas:  I think that’s an age comment by the way, just in case you’re missing that’s a protective attribute.

Nina Hoang:  “Effie was very worried about him. He was so sad, quiet and withdrawn.” Clearly not, he was singing. “Work had not improved. If anything, Delilah had become worse. Con undertook the valuation and provided to the Bank. Interest rates had been elevated for 12 months and the land was unimproved with no amenities. However, the Reserve Bank had indicated an intent to reduce rates. The land located in an inner suburban area had received planning permission for a Greenfields housing development and had an expression of interest from a developer for $12.7 million. As a result, Con provided valuation of 11.4 million. Relying on the valuation and the EOI, the Bank lent $8 million. Con’s brother as President of the club, deposited the 8 million into a Greek Bank with offices in Melbourne, which transferred the funds to Greece. The money was then moved around Greece and both Con’s brother, and the money trail went cold.” What is this story?

Andrew Douglas:  Can I just say, I’ve been involved in that case.

Nina Hoang:  Oh my gosh.

Andrew Douglas:  Several cases like that back in the day when I worked building construction.

Nina Hoang:  Geez, “Around the same time, Effie and Con boarded a Qantas fight to Dubai to celebrate their 10th wedding anniversary.” I thought it was going to be to celebrate that they were in on it. “They had purchased business class fights and accommodation with cash. They had saved six months later, a forensic valuation conducted with the knowledge that the company buying the EOI was a front for Con’s brothers fraud, estimated the land value at $7.5 million. Both the Bank and VI suspected Con of fraud. Delilah began to connect the dots. She knew Con was struggling to pay his mortgage, yet he managed to pay $16,000 for business class tickets and $20,000 for accommodation in cash.

It just didn’t add up. She demanded that Con attend a show cause meeting. She explained what was known and asked him to respond. Con explained what he knew and maintained his innocence. Despite this, Delilah terminated his employment and advised the Bank that she had terminated him for fraud. She also made it known to her entire client base. No police charges were laid. Con was hospitalised for three months suffering from acute suicidal ideation and suffering psychotic depression.” Whoa this was like so creative.

Andrew Douglas:  That was creative, wasn’t it?

Nina Hoang:  Props to you Andrew.

Andrew Douglas:  Okay, “What is the threshold for alleging fraud in a civil matter?”

Nina Hoang:  Extremely high.

Andrew Douglas:  Yeah so it is… It’s still balance of probabilities.

Nina Hoang:  Yeah.

Andrew Douglas:  But this is right on the end.

Nina Hoang:  Yeah I always advise clients to not say fraud because it’s really almost impossible to satisfy it unless you have that evidence ’cause it’s a… Isn’t it a criminal allegation?

Andrew Douglas:  It’s a criminal allegation.

Nina Hoang:  Yeah.

Andrew Douglas:  So yeah so like a sexual assault, a fraud, they’re criminal in nature. So you don’t go to beyond reasonable doubt but you got to have compelling evidence.

Nina Hoang:  Yeah.

Andrew Douglas: Of the mechanics of the wrong that was done.

Nina Hoang:  Yeah.

Andrew Douglas:  And it has to meet then the balance of probability so it can’t be circumstantial.

Nina Hoang:  And it has to be deliberate too, it can’t be a mistake. That’s not fraud.

Andrew Douglas:  No they can’t. Well, it’s a fraud because it has to be an intention to deceive.

Nina Hoang:  Exactly.

Andrew Douglas:  So dishonesty charges are intent… Are called animus furandi, the intention to permanently deprive.

Nina Hoang:  Yeah.

Andrew Douglas:  It’s a bit of Latin for you, how about that? You didn’t expect to see that, did you?

Nina Hoang:  “What is the law of circumstantial evidence in an investigation and dismissal?”

Andrew Douglas:  Okay so that is… That circumstantial evidence, is evidence which doesn’t directly go to the cause developments of it and there has to be no other reasonable explanation. So if you’ve got circumstantial evidence, so Nina was in the room, I saw Nina leave the house, a body was found shot, I saw Nina carrying a gun that’s all circumstantial evidence ’cause no one saw Nina shoot them. So is there any relevant explanation? And Nina said, “Yes I went in the house, I saw a person had been shot, so I took the gun away so nobody else would get shot.”

Nina Hoang:  Yeah stupid but like doesn’t mean I did it.

Andrew Douglas:  A reasonable explanation. So just be aware of circumstantial evidence because people elevate it to direct evidence.

Nina Hoang:  Yeah.

Andrew Douglas: And direct evidence is seeing Nina shoot the person and without that it’s circumstantial.

v Yeah.

Andrew Douglas:  “Would Con have a successful unfair dismissal claim?”

Nina Hoang:  Yeah so I think yes, because there’s no direct evidence. All that Delilah has is a lot of circumstantial evidence and he’s denying that it occurred.

Andrew Douglas:  And she’s not able to produce any mechanical-

Nina Hoang:  Yeah.

Andrew Douglas:  Any… Show his mechanical connection to what occurred or in fact any real direct line of benefit.

Nina Hoang:  Yeah.

Andrew Douglas:  Yeah.

Nina Hoang:  Real, any real evidence.

Andrew Douglas: Yeah no, he’d kill it.

Nina Hoang:  Yeah.

Andrew Douglas:  “Would Con have a strong common law psychological claim for breach of his employment contract under Elisha and Vision?” So yes, so the answer is he’s… And we’re just starting to see Elisha and Vision come through in plaintiff land.

Nina Hoang:  Oh yep, yep that’s right.

Andrew Douglas:  Okay so this is where you can claim based on discipline or termination of employment, psychological damages. So we’re going to see that on large end corporate dismissals.

Nina Hoang:  Yeah.

Andrew Douglas:  But what that says, is if the termination or the process was undertaken caused psychological harm, then you can general damages.

Nina Hoang:  Yep.

Andrew Douglas:  For psychological harm. Here it is a classic case of when you could bring such a claim at common law and would succeed. “Would Con… Would Con have a successful defamation claim?”

Nina Hoang:  Oh yes.

Andrew Douglas:  Yeah he’s now unemployed in financial services sector.

Nina Hoang:  And there’s no proof of it, so she doesn’t have the truth defence.

Andrew Douglas:  And now across all code base, so that’s defamation code base states, he has suffered a financial loss. So the trigger that allows him… So if Nina says Andrew, “You’ve got a big nose and nobody likes you.” May be true so there may be a defence of truth, but I’ve suffered no loss at that stage. So if it’s untrue and it hurts and harms me, it’s still not a defamation claim. I’ve got to be able to demonstrate now this trigger-

Nina Hoang:  The loss.

Andrew Douglas: That there has been a loss that has been suffered.

Nina Hoang:  But it has to be against the company, right? Not Delilah’s an individual?

Andrew Douglas:  No, no it’s against Delilah.

Nina Hoang:  Oh you can…

Andrew Douglas: It actually is against Delilah and against the company so-

Nina Hoang:  Oh I got it mixed up, you can’t… A company can’t file defamation that’s right.

Andrew Douglas:  Yeah they can if they are under 10 employees or if they’re a not-for-profit organisation with certain limitations, yeah.

Nina Hoang:  Were there psych-

Andrew Douglas:  “Were there psychological hazards?” Well we can… Let’s list them, no let’s not. There was so many, the way she was dismissive, the way that she didn’t give clarity. The way she was rude and intrusive, the way that she humiliated him in front of-

Nina Hoang:  The lack of procedural fairness as well.

Andrew Douglas:  Yeah anyway, there’s nearly all of them there. They’re good.

Nina Hoang:  “Was Delilah’s behaviour bullying?”

Andrew Douglas:  Yes.

Nina Hoang:  Yes, it was.

Andrew Douglas:  It was repeated.

Nina Hoang:  It was repeated, unreasonable behaviour targeted at him.

Andrew Douglas:  So unreasonable means that an objective person would say that it could hurt, humiliate, or intimidate, absolutely.

Nina Hoang:  And there was, yeah.

Andrew Douglas:  You think we’re running out of time, because we were spent very fast over top of each other.

Nina Hoang:  Okay, “Con was suffering a significant depressive episode at the time of his evaluation from the constant behaviour of Delilah. Would Con have a strong workers’ comp claim?”

Andrew Douglas:  Yeah, no totally, absolutely totally.

Nina Hoang:  Why did you make so many questions? “Would the safety regulator prosecute?”

Andrew Douglas:  Because it’s a big question.

Nina Hoang:  “If so, who and what charges?”

Andrew Douglas:  Yeah well the safety regulator would be going after Delilah. The problem is the safety regulator doesn’t like where it might turn out dirty. So it might turn out that Con-

Nina Hoang:  Yeah I feel like they wouldn’t really touch this.

Andrew Douglas:  They wouldn’t seize this, although we are dealing with a matter at the moment where the safety regulator has got involved with the person whose behaviour is pretty, pretty doubtful. But nonetheless, I think yes, they would prosecute Delilah and the company are riding the gun. And I would’ve thought given the lack of clarity, the method by which Delilah did stuff, I think she could be in the gun for reckless endangerment but I think… I do but I think the safety regulator would be squirmish about bringing that claim.

Nina Hoang:  Yeah I don’t think they would do that.

Andrew Douglas:  They’d spend a lot of money.

Nina Hoang:  Yeah.

Andrew Douglas:  But that just shows, I guess the reason I put that in there, is it shows how politically motivated safety regulators are and how they don’t want to get their fingers burnt. They’ll only go in where they think they’ve got to win.

Nina Hoang:  Yeah.

Andrew Douglas:  And there’s a statement to be made so there you go, that’s it for the day.

Nina Hoang:  Cool.

Andrew Douglas:  So I think-

Nina Hoang:  Give us a thumbs up.

Andrew Douglas:  Yeah, please give us the thumbs up and that’s it.

Nina Hoang:  See you next time, bye

Andrew Douglas:  See you next time, bye-bye.