By Nick McKenzie and Max Mason
A Super Retail Group employee was so concerned at the handling of whistleblower complaints about an alleged affair between the chief executive and a senior staff member, they made an emergency disclosure to the assistant treasurer, urging a probe into whether the firm was seeking to cover up wrongdoing.
The disclosure sparked drastic action from the Australian Securities and Investments Commission, which responded by issuing demands to Super Retail staff to attend compulsory interrogations. It wanted to know about how the company had handled allegations its chief executive Anthony Heraghty engaged in a non-disclosed relationship with its head of human resources Jane Kelly.
Super Retail chief executive Anthony Heraghty.Credit: Dan Peled
Super Retail, the ASX-listed owner of Rebel Sport and Supercheap Auto, denies there was a secret affair between Heraghty and Kelly, and says that it investigated the matter properly.
The pair are now in a relationship, with Heraghty having told the Super Retail board that he had formed feelings for Kelly but had not acted on them until early 2024.
While the identity of the employee who contacted Assistant Treasurer Stephen Jones has been confirmed, they have not been identified because they are a whistleblower. They are one of five whistleblowers within the firm who have raised concerns internally about the company’s handling of the alleged affair.
Jane Kelly.
An emergency disclosure can only be made to a member of parliament or a journalist if a person believes “that the information in [their] report concerns substantial and imminent danger to the health or safety of one or more people or to the natural environment.”
The “substantial and imminent danger” in this case is asserted to relate to the impact on two other whistleblowers. The employee made the emergency disclosure at the end of April 2024. Their disclosure said they had fears for the rapidly declining mental health of two former company lawyers-turned-whistleblowers - Rebecca Farrell and Amelia Berczelly – and their treatment at the hands of Super Retail.
Super Retail privately briefed the media in April 2024 that the claim brought by the two senior former lawyers was a “shake down”. The company told the ASX it would involve a loss and damages claim of between $30 million and $50 million.
Sources, unable to be identified publicly, have confirmed Farrell and Berczelly were not involved in the first complaint, and that it was made by a different staff member via the company’s online tip-off program, Whispli.
The revelation marks a widening of the scandal first sparked by a long-running legal stoush between Super Retail and the two lawyers, who said they were targeted after they learned of the suspected affair between Heraghty and Kelly.
Farrell and Berczelly have accused the company of bullying, harassment, misuse of funds, as well as breaking corporations law, whistleblower protections, its own policies and its obligation to provide a safe workplace. The case is expected to be fought in the Federal Court.
Solicitors representing the women, Harmers Workplace Lawyers, responded in April 2024, accusing Super Retail of “deliberate misrepresentations” and “an internal campaign of suppression via fear”.
Farrell and Berczelly have denied asking for the amount of compensation claimed by Super Retail in its disclosure to investors.
“Friday’s ASX announcement, and subsequent media coverage initiated by SRG, amounts to victimisation of these whistleblowers, and is causing them additional damage,” Harmers wrote in the statement on April 29.
According to the emergency disclosure, the employee also learned, in December 2023, Super Retail directed the firm’s head of risk to send the original whistleblower complaint about the alleged affair to a manager who had a close working relationship with Kelly. That was despite Kelly being the subject of the initial complaint.
Leaked company documents show the original whistleblower claimed they were told about the alleged affair by Heraghty’s executive assistant Juan Bodinger.
According to the complaint, Bodinger claimed he had spoken to Heraghty’s wife and had also allegedly observed a range of behaviour and formed a view that Heraghty may be in an inappropriate and undisclosed relationship with Kelly.
The original round of whistleblowing drew in then-head of legal Farrell and corporate counsel and company secretary Berczelly, who had responsibility for internal disclosures.
Leaked company documents also allege Heraghty personally arranged Kelly’s $1.3 million redundancy package in breach of Super Retail’s conflict-of-interest policy.
The payment allegedly involved six months salary, accrued long service leave, a separate redundancy pay out, short-term and long-term share incentives and a further payment for operating model changes.
It is not suggested that these allegations are true, only that they have been made.
Company files show that Heraghty personally briefed then-Super Retail chair Sally Pitkin on the redundancy arrangements in July 2023, seeking the chair’s confirmation that SRG’s handling of Kelly’s departure was “satisfactory”.
Pitkin, who retired from the Super Retail board last October, is one of the former Star Entertainment directors being sued by ASIC.
Last year, the Financial Review revealed ASIC was in the early stages of investigating Super Retail and the circumstances which led to Farrell and Berczelly suing the company.
The first round of the legal battle between Super Retail and Farrell and Berczelly focused on whether the company had agreed to a settlement agreement with the pair.
Justice Michael Lee ruled against Farrell and Berczelly in December and the pair will pursue their Fair Work claim in the Federal Court.
A Super Retail spokesman said the company “is not in a position to comment on the matters you’ve raised given the ongoing court proceedings” and referred this masthead to its April 2024 ASX statement.
Jones declined to comment. ASIC declined to comment but sources, speaking anonymously to discuss confidential information, confirmed it had interviewed company staff over the concerns.
Last week, ASIC chairman Joe Longo lashed out at chief executives plagued by sex scandals and other misconduct amid a string of high-profile stories involving the bosses of WiseTech Global, Mineral Resources and Super Retail.
“I’ve been very disappointed by the number of matters that have been brought to ASIC’s attention, which started with poor personal behaviour,” Longo said.
“These types of issues often speak to a company’s culture of accountability. They can also shine a light on deficient whistleblower and internal reporting frameworks, which then cause further issues for company directors who have a responsibility to be alert to non-financial risks.”