Legal and policies

Whistleblower Policy

At 333 Capital, we value high standards of trust, empathy and ethical conduct in all of our dealings. We are committed to creating a work environment in which employees, ex-employees, suppliers, consultants, contractors and family members of these people are able to raise concerns regarding unethical, unlawful or improper conduct or activities, in confidence and without fear of reprisal. This version of the policy is modified for external parties.

Scope of policy

This Policy extends to all Eligible Whistleblowers, which includes all current or former employees (whether paid or unpaid), contractors, consultants, suppliers or their employees, any other parties acting as representatives or agents of 333 Capital, or the relatives of any of those individuals.

Purpose of policy

The purpose of this policy is to:

• Set out the process to report concerns of possible Inappropriate Conduct, in confidence and without fear of reprisal, dismissal or discriminatory treatment.
• Provide an alternative avenue for raising concerns of Inappropriate Conduct (for example, by talking to a senior employee or People & Culture). This policy should be used in the case where you believe that the existing avenues have failed or you perceive them as unsuitable.
• Ensure that Inappropriate Conduct is detected, addressed appropriately and prevented in the future.

Prompt action will be taken to investigate each report received to ensure Inappropriate Conduct is detected and addressed.

Inappropriate conduct

Inappropriate Conduct means conduct which is, or potentially could be:

• dishonest or corrupt
• fraudulent
• illegal, including theft, drug use/sale, violence or threatened violence and criminal damage to property
• a breach of a legal obligation
• a breach of a professional obligation
• unsafe work practices
• in breach or disregard of the 333 Capital’s policies
• any other conduct that could cause loss to 333 Capital or become detrimental to 333 Capital or
• any related or similar activity that could be considered by a reasonable employee to be improper, inappropriate or unacceptable.

333 Capital’s designated Whistleblower contact is Partner - Group Practice Management.

Responding to reports

Investigations

As the designated Whistleblower Contact, the Partner - Group Practice Management will oversee the response to reports of Inappropriate Conduct.

The investigation process will vary depending on the precise nature of the conduct being investigated. Reasonable efforts will be made to ensure investigations are completed in a timely manner, but can typically be expected to take anywhere from four to twelve weeks or longer in some circumstances. 333 Capital will aim to ensure reports of Inappropriate Conduct are assessed within five business days of receipt.

Once the Partner - Group Practice Management receives a notification about Inappropriate Conduct, the process will generally include:

• an initial triage assessment of the matter to determine the severity of the matter and assess whether it qualifies for protection, whether there is evidence to support the matter raised and what further action, if any, is to be taken
• the development of an investigation plan, when it is deemed necessary to conduct an investigation, including the appointment of an appropriately qualified and independent investigator
• conducting an investigation in accordance with the investigation plan, which could include the following steps:
  • collecting and assessing relevant documentary, digital or other evidence
  • interviewing witnesses and
  • interviewing the individual implicated in the Inappropriate Conduct
• reporting the findings of an investigation to appropriate parties (subject to confidentiality requirements) which will typically include the Board of Management, the Partner - Group Practice Management and the Director - People and Culture.

The Partner - Group Practice Management may include other individuals, such as members of the Risk Management or Technology teams, at any of these stages of the process as appropriate, for example to collect evidence or review control procedures.

Feedback and communication

Where possible, 333 Capital will give periodic updates to the Whistleblower as to the progress of the investigation into the Inappropriate Conduct. At a minimum, this will include acknowledgement of receipt of the report and notification at closure of the investigation. Updates provided to the Whistleblower will be subject to confidentiality considerations and will not convey the specific findings resulting from an investigation into the matter.

If you are concerned that the handling or response to a report of Inappropriate Conduct was inappropriate, insufficient or otherwise improper, such concerns can be raised with the Director - People and Culture or the Board of Management.

Maintaining records

The Partner - Group Practice Management (or the Director - People and Culture as appropriate) will keep complete and accurate records of a report of Inappropriate Conduct and any related investigation into the matter to the extent required by relevant laws and subject to safeguards that ensure their confidentiality.

Ensuring fair treatment

333 Capital will take appropriate steps to ensure that parties named in a report of Inappropriate Conduct are provided fair treatment and due process. All investigations must be conducted in a manner that is fair, objective and affords natural justice to all people involved. To ensure the fair treatment of parties named in a report of Inappropriate Conduct:

• The appointed investigator(s) will be independent of the matter and individuals involved.
• The appointed investigator(s) will be appropriately qualified and must consider evidence on the balance of probabilities as to whether the alleged Inappropriate Conduct did or did not occur.
• To the extent possible in accordance with legal requirements, the identity of persons named in a report of Inappropriate Conduct will be kept confidential.
• in accordance with the principles of natural justice and procedural fairness and prior to any actions being taken, parties named in a report will be advised of the allegations as and when appropriate
• Parties named in a report of Inappropriate Conduct will be provided the opportunity to respond to the allegations prior to any final actions being taken.

In some circumstances, 333 Capital may deem it necessary to take temporary action involving an employee named in a report of Inappropriate Conduct, such as standing aside the employee on paid leave so as to enable a complete and thorough investigation. In such circumstances, the affected employee will be provided access to the Employee Assistance Program with the option to seek updates from the Partner - Group Practice Management.

The Whistleblower

Protected disclosure

If you report Inappropriate Conduct in accordance with this policy, you will be protected under this policy from reprisal or repercussions from 333 Capital as a result of reporting Inappropriate Conduct, as long as you have reasonable grounds for believing the information disclosed indicates such conduct.

Any reports of Inappropriate Conduct which are proven to have been made maliciously or in the knowledge that they were false will not afford the Whistleblower protection and will be investigated and viewed as a serious disciplinary offence.

For specific eligibility criteria for protection under Australian law, please refer to Appendix A.

Whistleblower protection

333 Capital is committed to protecting and supporting Whistleblowers against actions taken against them for reporting Inappropriate Conduct. 333 Capital does not tolerate reprisals, discrimination, harassment, intimidation or victimisation of a Whistleblower, their colleagues or family members. Such retaliatory action will be treated as serious misconduct and will be dealt with in accordance with 333 Capital’s disciplinary policies.

333 Capital will consider and adopt appropriate arrangements for protecting and supporting Whistleblowers on a case-by-case basis in accordance with the level of risk to the Whistleblower’s wellbeing and safety. For example, this could include:

• assigning a dedicated Whistleblower Support Officer from the People and Culture team whose role is monitor the Whistleblower’s wellbeing and provide support where appropriate
• providing access to the Employee Assistance Program
• considering paid leave, role re-assignment, office relocation or other support as deemed appropriate
• monitoring performance ratings, outcomes and employment decisions for known Whistleblowers to assess whether such outcomes are appropriate and free from negative bias or reprisal

333 Capital will keep the Whistleblower’s identity confidential in accordance with legal requirements. This includes reminding Eligible Recipients about their confidentiality obligations through training. Records of a report of Inappropriate Conduct and any associated investigation will be subject to safeguards that ensure their confidentiality.

If the Whistleblower is implicated in the Inappropriate Conduct being reported, and co-operates with 333 Capital’s investigation, the fact that they have reported Inappropriate Conduct in accordance with this policy will not grant immunity from appropriate disciplinary action, but may be considered as a mitigating factor when determining any such disciplinary action.

For information on the legal protections available to Whistleblowers who report Inappropriate Conduct in accordance with eligibility requirements in Appendix A

Limitations

In instances when a Whistleblower is anonymous, or when an external party makes a disclosure to 333 Capital, the response of 333 Capital will mirror this policy to the extent possible. In some circumstances, it may not be possible for 333 Capital to provide the same practical protection and support as provided to known Whistleblowers and employees. For example, it may not be possible for 333 Capital to:

• protect the employment status of a Whistleblower who is not employed with 333 Capital
• monitor and manage the behaviour of individuals not employed by 333 Capital (e.g. prevent harassment or bullying of non-employees)
• monitor the wellbeing, safety, performance outcomes and employment status of anonymous Whistleblowers

Availability

This Whistleblower Policy is made available to staff and is further published on the 333 Capital website to make it available to former employees or other external parties.

Reporting inappropriate conduct

In the first instance you should raise any concerns of Inappropriate Conduct with an immediate supervisor, a relevant Partner or with the Director – People and Culture. However, if you feel that the existing avenues have failed, you perceive them as unsuitable or are unsatisfied with the response, you should use this policy as a confidential, alternative reporting avenue.

To help ensure reports are managed appropriately and consistently, it is the preference of 333 Capital that such reports are made to 333 Capital’s designated Whistleblower Contact:

Carolyn Ashby
Partner, Group Practice Management
By phone: +61 3 8623 3305
By email: [email protected]
By mail: Carolyn Ashby
333 Capital
GPO Box 2985
Melbourne VIC 3001
Marked ‘Private and Confidential’

Appendix A includes a full listing of all Eligible Recipients to whom a report of Inappropriate Conduct which qualifies for protection under Australian law can be made.

When making a report, you may choose to identify yourself or remain anonymous. However, anonymity may impede a swift or thorough investigation into the Inappropriate Conduct and communication of the outcome. If you choose to remain anonymous, you must include sufficient information in the report for the Inappropriate Conduct to be investigated.

Appendix A – Legal Protections under Australian law

A. Eligibility for protection

In order for a report about Inappropriate Conduct to be eligible for protection under the Corporations Act 2001 (Cth) or Taxation Administration Act 1953 (Cth):

• you must be an Eligible Whistleblower as described in ‘Scope of policy’
• your report must relate to Inappropriate Conduct as described in the policy
• your report must be made directly to an Eligible Recipient as described in Appendix A – Sections B or C below.

Reports made anonymously still qualify for protection under Australian law, you do not need to identify yourself.

B. Eligible Recipients

Eligible Receipts, to whom reports of Inappropriate Conduct can be made which qualify for protection under Australian law, include:

• 333 Capital’s company Directors
• 333 Capital’s company Secretary
• members of the KordaMentha Board of Management
• internal and external auditors of 333 Capital or KordaMentha
• practice management leaders of KordaMentha
• KordaMentha’s tax agent (for the purpose of reporting tax-related Inappropriate Conduct)
• other external Eligible Recipients as noted in Appendix A – Section C below.

Contact details for each Eligible Recipient noted above can be obtained from the Partner - Group Practice Management (or Director - People and Culture as appropriate).

Should you have any questions on the appropriate channel for reporting Inappropriate Conduct, you can contact the Partner - Group Practice Management or Director - People and Culture to ask questions or seek guidance. Any such enquiries can also be made anonymously (e.g. using an anonymous webmail account).

C. Other channels for reporting

In addition to the Eligible Recipients noted in Appendix 1 - Section B, Whistleblowers can report Inappropriate Conduct to the following external Eligible Recipients:

• an external legal practitioner for the purpose of obtaining legal advice (even if the legal advice subsequently indicates that the matter does not relate to Inappropriate Conduct)
• the Australian Securities and Investments Commission (ASIC) or the Australian Prudential Regulation Authority (APRA), or other prescribed Commonwealth authorities which may be prescribed by legislation in the future
• the Tax Commissioner (for reporting tax related Inappropriate Conduct)

In certain circumstances, reports about Inappropriate Conduct may qualify for protection under Australian law when reported as ‘Emergency’ or ‘Public Interest’ Disclosures to a journalist or a member of Commonwealth, State or Territory Parliament.

Anyone considering whether to make an ‘Emergency’ or ‘Public Interest’ Disclosure should ensure they are familiar with the criteria for protection and may wish to seek legal advice before making such a disclosure. Further information is set out below.

Public Interest Disclosures

Per the Corporations Act 2001 (Cth), a ‘Public Interest Disclosure’ is the disclosure of information to a journalist or a parliamentarian, where:

• at least 90 days have passed since the Whistleblower made a report about Inappropriate Conduct to ASIC, APRA or another Commonwealth body prescribed by regulation;
• the Whistleblower does not have reasonable grounds to believe that action is being, or has been taken, in relation to their report about Inappropriate Conduct;
• the Whistleblower has reasonable grounds to believe that making a further disclosure of the information is in the public interest; and
• before making the Public Interest Disclosure, the Whistleblower has given written notice to the body to which the previous report about Inappropriate Conduct was made that:
  • includes sufficient information to identify their previous report; and
  • states that the Whistleblower intends to make a Public Interest Disclosure.

Emergency Disclosures

Per the Corporations Act 2001 (Cth), an ‘Emergency Disclosure’ is the disclosure of information to a journalist or a parliamentarian, where:

• the Whistleblower has previously made a report about Inappropriate Conduct to ASIC, APRA or another Commonwealth body prescribed by regulation;
• the Whistleblower has reasonable grounds to believe that the information concerns a substantial and imminent danger to the health or safety of one or more persons or to the natural environment;
• before making the Emergency Disclosure, the Whistleblower has given written notice to the body to which the previous report about Inappropriate Conduct was made that:
  • includes sufficient information to identify their previous report; and
  • states that the Whistleblower intends to make an Emergency Disclosure; and
• the extent of the information disclosed in the Emergency Disclosure is no greater than is necessary to inform the journalist or parliamentarian of the substantial and imminent danger.

D. Legal protections

Under Australian law, the following protections are available to Whistleblowers who report Inappropriate Conduct in accordance with Appendix 1 - Section A:

• Confidentiality and protection of identity:
  • It is illegal to share your identity as a Whistleblower without your consent, unless your identity is shared with ASIC, APRA, the Australian Federal Police (AFP), or to a legal practitioner for the purpose of obtaining legal advice about your report.
  • Where it is reasonably necessary to investigate the alleged Inappropriate Conduct in your report, the information in your report cannot be shared without your consent, unless the information does not include your identity and all reasonable steps are taken to reduce the risk that you are identified from the information.
• Protection from reprisals or detriment – it is illegal for anyone to cause harm, or threaten you with harm, because they believe you have, or may, make a report about Inappropriate Conduct.
• Protection from liability or legal action – if you make a report about Inappropriate Conduct, you are protected against legal action against you for making the report, including:
  • Your act of reporting cannot be used against you in a criminal prosecution, unless it was a knowingly false allegation.
  • Civil proceedings (e.g. breach of employment, duty of confidentiality, or other contractual obligation) cannot be enforced as a result of your report.
  • Administrative action (e.g. disciplinary action) cannot be taken due to your report.
• Compensation and other remedies – you can seek compensation or other various remedies (e.g. reinstatement, apology, etc.) through the courts if:
  • you suffer loss, damage or injury for reporting Inappropriate Conduct
  • 333 Capital failed to take reasonable precautions and exercise due diligence to prevent the loss, damage or injury.

E. Application in other jurisdictions

Legal protections available to Whistleblowers differ by jurisdiction. Where a Whistleblower resides or is employed or associated with 333 Capital in another jurisdiction (e.g. Singapore, Indonesia), the legal protections under Australian law (e.g. access to compensation or remedy from Australian courts for loss, damage or injury suffered) may not be available.

333 Capital is committed to protecting and supporting Whistleblowers who report Inappropriate Conduct. To the extent reasonable and possible, 333 Capital will afford the same policy commitments to anyone who reports Inappropriate Conduct.