Australia: Hypothetical 2013 – "The most difficult dismissal of all…"

Last Updated: 20 December 2013
Article by Margaret Chan

PCS' second annual Hypothetical event, held this year at the Australian National Maritime Museum in Darling Harbour, was a spectacular evening.

While a number of workplace relations issues have been the focus of much attention in 2013, this year's hypothetical was about one issue that is never far from the minds of most human resources and employment law practitioners: termination of employment and best practice dismissals.

This year, PCS was privileged to have SKY NEWS Business channel presenter, Brooke Corte (pictured on page 5), as our MC for the evening. Attended by over 120 friends and clients of PCS, this year's Hypothetical was also televised on SKY Business' Australian Public Affairs Channel on Monday, 25 November 2013.

The scenario

A captivated audience watched a video written, produced and directed by none other than PCS' founder and Managing Principal, Joydeep Hor unfold on the big screen. The video depicted the different perspectives, tensions, conflicts and sense of betrayal caused by the highly public and rather sudden termination of the CEO of "the Company", Garry, by the Board – who was represented by its Chairman, Frank.

The video showed Garry and Frank discussing their views on Garry's termination – highlighting underlying issues and reasons such as the poor financial performance of the Company, Garry's lack of accountability about the Company's financial performance, the lack of performance management, the risqué client entertainment of the Company's high value clients involving escorts and pole dancing aboard Garry's yacht, the amount of notice given to Garry when he was terminated and the non-compete restraint in his unsigned employment contract. The issues of stress, depression and bullying were also alluded to by Garry.

Our expert panel

Following the video, it was over to the Expert Panel, who were required to think on their feet and respond to the questions posed by Joydeep as Facilitator.

On the expert panel for the first time this year were:

  • Michele Grow, CEO of Davidson Trahaire Corpsych, playing the role of newly-appointed Non-Executive Director;
  • Tim Donaghey, Barrister-at-Law, providing input on the legal issues facing Frank and the Board; and
  • John Dakin, Director of Career Management firm Directioneering, acting as Garry's career management advisor.

Previous panellists:

  • Robyn Sefiani from Sefiani Communications Group; and
  • Hannah Low of the Australian Financial Review

also reprised their roles on our expert panel this year to provide their perspective on the media and public relations implications of this highprofile termination.

Issues at play

Our expert panel this year was treated to a smorgasbord of issues to pick their way through – including a series of complex legal, management and psychological issues such as:

  • whether high level executives (such as CEOs) should be subjected to formal performance management processes if and when they are underperforming;
  • the implications of an investigation into Garry's inappropriate conduct in allowing the risqué client entertainment event (dubbed the "Love Boat" by Tim) and his subsequent high-profile termination;
  • Garry's allegations of bullying against the Board – by "ambushing" him and tabling "reports prepared behind (his) back";
  • whether the payment provided by the Company in lieu of notice was sufficient;
  • personal liability issues for the Board of Directors;
  • Garry's depression and mental health issues; and
  • whether a non-compete restraint could be enforceable where there was no signed contract, and even if there had been one, (or deemed acceptance of the terms by Garry), whether it would be enforceable by the Company.

Expert analysis

Our experts then broke into an energetic and, at times, playful discussion about the various factors that would influence them and the thoughts that were going through their heads as the Hypothetical scenario unfolded before them.

Michele Grow spoke in her capacity as a hypothetical Board member, discussing the duties of a Director from a corporate governance perspective and the necessity of obtaining further clarity around the timeline, process and reasons for Garry's termination. In response to Garry's claims about feeling stressed and depressed, Michele highlighted the obligations of the Board to ensure that it was taking appropriate "care and protection" of the workforce - touching upon some of the officers duties under work health and safety legislation.

Michele then donned an organisational psychology cap and offered her insight into Garry's revelation that he had depression. Although it should come as no surprise, Michele revealed that 45% of all adults will suffer from some form of mental illness at some point in their lifetime and that many individuals are able to function at quite a high level during this time despite their illness. Accordingly, while mental health should be treated with care in the work place, it should not necessarily be treated as an impairment or be used to excuse underperformance (particularly in circumstances where it is unclear whether there has been an actual diagnosis of depression – as was in Garry's case). However, Michele indicated that in the circumstances, given his particularly stressful termination, it would be necessary to ensure that Garry was seeking appropriate support for his condition.

Tim Donaghey, as a legal representative on the panel, was responsible for unpacking many of the legal issues around Garry's termination. Tim examined the implications of Garry's unsigned contract and whether he may still be bound to its terms, the notice payment of 3 months that was provided to Garry and whether this could be open to challenge given his seniority, as well as potential breach of contract issues by the Company.

Tim also suggested that Garry could potentially bring a General Protections claim under the FW Act on the basis of discrimination following the disclosure of his depression – although this would be dependent on whether Garry could establish that there was a causative relationship between his mental illness and termination. Tim then went on to discuss whether there was an obligation on the Company to undertake a performance management process with Garry, as well as the issue of personal liability of CEOs and Board members in these types of termination situations.

John Dakin walked attendees through what this termination meant for Garry from a personal perspective and the issues he would work through with Garry as his career management advisor. John explained the types of emotional and psychological issues that Garry may have – particularly given the long tenure Garry had with The Company and his meteoric rise through the ranks. John also addressed the importance of personal branding (particularly at the executive level) and the importance of seeking advice around communications - particularly where legal proceedings are on foot.

John then raised the very pertinent question of whether Garry had received the necessary training that he needed before being appointed to the CEO role and whether this could have been a contributing factor to his underperformance in the role.

Hannah low also took to the stage to reveal what would spark a journalist's interest in the scenario and the types of issues on which a journalist might choose to focus. In addition to the yacht incident, the size of the organisation, the alleged bullying at the highest levels of the Company, the culture of the Company and whether Garry was performance managed out of his role were all deemed to be factors which would make the scenario an attractive one for journalists.

Hannah also highlighted that while Garry's mental health issues would not, of itself, necessarily be newsworthy, any suggestion that the mental health issues had arisen as a result of his role - particularly when tied in with the issues of executive and corporate bullying, would certainly make Garry's story a more interesting one for readers.

Robyn Sefiani explained to attendees how she would approach managing the publicity that would flow from these events and how to minimise reputational damage to the Company, as well as to members of the Board – particularly given Gary's allegations that policies had been applied inconsistently. Robyn suggested that any damage control that she would undertake would be both internal and external and would largely depend on whether the Company's actions aligned with what it publicised as being its values. Her advice also included a suggestion that the Board would need to investigate to discover how deeply-rooted and prevalent the "ends justifies the means" culture was in the organisation and whether the risqué yacht incident was a one-off incident attributable to its former-CEO, or whether more systematic issues lie dormant within the organisation which could create future reputational risk.

In response to a question from Joydeep about whether Frank should accept interviews from Hannah (or another journalist), Robyn also outlined the various strategies that could be adopted and which of these would be most appropriate in various circumstances.

Holistic, best practice processes

The combination of minds on the Panel were illustrative of the many stakeholders that are common to a high-profile termination scenario and also reinforced the importance of having a holistic approach to people management matters, underpinned by a solid and pragmatic legal strategy. However, one key takeaway from the night is that "every termination of employment needs to be treated as the most difficult termination of all" – regardless of who is being terminated and why.

Many in attendance on the night commented afterwards that this year's Hypothetical confirmed much of the best practice processes around termination which they were aware of, but the added dimension of dealing with aspects of the termination which were not usually associated with primary HR functions – such as the reputational and public relations implications and strategies in these circumstances – were "food for thought" and fertile ground for further discussions with their teams.

We hope that all our guests at the event walked away feeling better prepared to make sure their businesses are well informed about dealing with dismissals.

Once again, the PCS team would like to take the opportunity to thank everyone who attended its signature event.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.