Whistleblower Policy

EXECUTIVE SUMMARY

You can report illegal, unethical or unfair behavior to The Cheesecake Shop without fear of being victimised or having your employment or contract threatened.

The TCS Whistleblower Policy protects current and former; employees of both the franchisor and franchisees, franchisees, suppliers, contractors and service providers who wish to make a report. Any information provided can be kept confidential and your identity protected.

Contact the TCS Human Resources Officer to find out more or make a report. Please read the following ‘Whistleblower Policy’ before reporting an issue. The policy does not protect you if your report is intentionally false or mischievous.

1. PURPOSE AND OBJECTIVE

This Policy has been put in place to encourage employees and others (the “discloser”) associated with The Cheesecake Shop Pty Ltd (“TCS”) and its associated entities R&W Traders Pty Ltd (“R&W”), United Network Suppliers Pty Ltd (“UNS”) and Australian Equipment Traders Pty Ltd (“AET”), to report when they reasonably believe someone has engaged in wrongdoing.

The Company (TCS and its associated entities) is firmly committed to supporting and protecting whistleblowers. The objective of this policy is to ensure that people can raise concerns about actual or suspected contravention of our ethical and legal standards and proper business practices without fear of reprisal, threats or victimisation by doing so.

Unchallenged, such wrongdoing can reduce profitability, tarnish the Company’s reputation, demoralize employees, and result in substantial fines or costly lawsuits.

This policy was created to:

  • Encourage people to internally report, or externally report if internal reporting has been unsuccessful, an issue if they reasonably believe someone has contravened our Code of Conduct, policies or the law;
  • Outline how the Company will deal with all reported misconduct or unethical behaviours; and
  • Assist in ensuring that reported misconduct or unethical behavior is identified and dealt with appropriately.

2. LEGISLATIVE BASIS OF THE POLICY

Protection for whistleblowers comes under the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) amendments to the Corporations Act 2001 (Cth). Any contraventions can result in civil and where applicable, criminal sanctions.

3. PROTECTION OF WHISTLEBLOWERS – WHO IS COVERED?

Information provided by whistleblowers is called a ‘protected disclosure’, and includes information provided by:

  • current and former employees;
  • officers (e.g. Directors);
  • associates (e.g. a partner in the business);
  • suppliers;
  • distributors; and in some instances
  • a spouse, child or dependant of one of the above-mentioned persons.

The law requires that the Company ensure confidentiality by identity protection for whistleblowers who make a protected disclosure, unless the person making the report consents to providing their identity. The only exception to this is if a disclosure is required by law.

Therefore, unless consent is provided, the identity of an individual(s) who participate in the process will not be included in any personnel file or performance review.

The report and the investigation in relation to the matters raised in the disclosure will not be provided to anyone except those persons actively involved in the investigation. If you choose to make your disclosure anonymously, any elements of your report which may identify you will be redacted (i.e. anonymized) before being provided to anyone except the person who originally received your report.

It is a criminal offence to victimize a whistleblower because of a protected disclosure and if a whistleblower suffers damage/detriment because of such victimisation, the whistleblower can claim compensation for that damage from the offender under civil and administrative liability protection.

4. CRITERIA FOR MAKING A PROTECTED DISCLOSURE

Five criteria apply about how you can make a disclosure including:
1. You must be a current and/or former officer (e.g. Director), associated (e.g. partner in the business), employee, supplier, distributor, and in some instances your spouse, child or dependant can make a disclosure.
2. You must make the disclosure to an authorised person as stated in Section 8 of this Policy.
3. The disclosure can remain anonymous, except as may be required by law, but the person can consent to provide their details.
4. You must have reasonable grounds to suspect that the information you are disclosing indicates that the Company may be in breach of its Code of Conduct, the law or proper business practices.
5. A disclosure excludes personal work-related grievances e.g. interpersonal conflict, termination of employment or disciplinary matters, etc. (see Section 7: Exclusions)

5. WHAT SORT OF CONCERNS SHOULD I REPORT?

You should report any actual or suspected:

  • Conduct or practices which are illegal;
  • Breach of any of the Company’s policies;
  • Corrupt activities;
  • Theft, fraud or misappropriation;
  • Significant mismanagement or waste of funds or resources;
  • Abuse of authority;
  • Serious harm to public health, safety or environment or to the health and safety of any Company employee(s); or
  • Action taken against, or harm suffered by, an employee as a result of making a report under this Policy.

6. EXCLUSIONS

This Policy does not apply, nor provide whistleblower protection, if the matter raised by you is a personal work-related grievance about a personal situation. These matters are generally dealt with under the Company’s Disputes process, and you should report these to your direct manager or to the Human Resources Officer.

This Policy is only concerned with employees raising concerns about actions and/or behaviours of others or of the Company itself.

Examples of grievances that may be personal work-related grievances and therefore are not protected, are as follows:

  • An interpersonal conflict between the employee and another employee;
  • A decision relating to the engagement, transfer or promotion of the employee;
  • A decision relating to the terms and conditions of engagement of the employee;
  • A decision to suspend or terminate the engagement of the employee, or otherwise to discipline the employee.

If you are not sure about whether a particular concern should be raised under this whistleblower policy or under the Disputes process, we encourage you to raise your concerns with the Human Resources Officer for assistance.

7. PROCESS AND PROCEDURES FOR MAKING A PROTECTED DISCLOSURE

If you become aware of any matter or behaviour you think contravenes our Code of Conduct, policies or the law, then you should report the matter to an authorised person either in person, over the phone, by email, or by post.

If you attempt to make a protected disclosure at a time or place that would not be appropriate for receiving such a disclosure (e.g. making a disclosure at that time or location may compromise your anonymity or the confidentiality of the disclosure), the authorised person may propose an alternative meeting place and/or time for the disclosure to take place which would suit both parties.

Authorised persons include:

  • The Managing Director;
  • A member of the Executive team;
  • TCS’ General Legal Counsel; or
  • TCS’ Human Resources Officer.

A list of contact details for authorised persons is available at Appendix A.

If you have made a report to one of the authorised persons mentioned above, and there has been no response within 90 days of the complaint being made, you can also make a report to a member of Commonwealth, State or Territory parliament.

When you make a complaint anonymously or otherwise, the Officer who receives your complaint will investigate it appropriately and, where applicable, will provide feedback regarding the investigation outcome if you have provided a method of contact that they can respond to.

It is recommended, though not mandatory, that you provide examples of the behaviour or conduct you are reporting or provide gathered evidence along with your report if possible, as these may help facilitate an investigation. Where such evidence may compromise the anonymity of the report, it will be redacted or omitted entirely to protect the whistleblower’s identity.

The Company will take any required action in response to a report resulting from the investigation and explain what action will be taken, or that no action will be taken, and why.

In the event your complaint is against one or more of the authorised persons specified above, you should make your complaint to another individual specified above who is unrelated to your complaint, and they will be responsible for the investigation.

8. WHAT HAPPENS AFTER I MAKE A PROTECTED DISCLOSURE?

The contact(s) in Section 8 are required to assess the concern(s) raised and propose a course of action. All matters raised will be treated in a secure and sensitive way with appropriate confidentiality but not all of them will proceed to investigation.

You will be advised by the authorised person to whom you made the report about how the investigation will proceed including possible timeframes and when a possible outcome may be made.

Investigation processes will be tailored depending on the nature of the matter. The contact(s) nominated in Section 8 will determine the best individual(s) to investigate the matter(s) raised. The Company objective is to commence the investigation as soon as possible but within two (2) weeks of disclosure.

All investigations must be conducted in a manner that is objective and affords procedural fairness. Persons who are the subject of a protected disclosure will have an opportunity to explain and defend themselves in an impartial setting. A matter will be investigated by an independent person to avoid any conflict of interest.

Depending on the matters being investigated, a relevant report may be required to authorities.

Upon completion of the investigation, a record of the disclosure and subsequent investigation will be stored for 5 years on the TCS General Management group in Sharepoint which is only accessible by authorised persons. Only the redacted and anonymized versions of reports made will be stored on this record.

Records will be stored by the date the original report was received and the person who received the report. Individuals who make a protected disclosure should keep a record of this information in the instance that they would like to request a review of the investigation.

9. WHAT HAPPENS IF I AM MISTAKEN?

If you raise a genuine concern under this policy, you will not be at risk of losing your job, nor will you suffer any form of detrimental action as a result, as long as you have a reasonable belief and you make the disclosure in accordance with this Policy. It does not matter if you are mistaken.

If you believe that you are being subject to a detriment within the workplace as a result of raising concerns under this Policy, you should inform one of the Whistleblower Contacts immediately.

However, if you make a report that is misleading, it may damage the career prospects and reputation of anyone who is the subject of your allegations. In this case, you may face disciplinary action.

10. REVIEW OF INVESTIGATIONS

If you are not satisfied with the outcome of an investigation conducted in response to a report you have made, you can request that the investigation be reviewed by making a request to an authorised person (see Section 8 for a list of authorised persons) within 5 years of the original investigation being conducted.

Some examples of reasons why an investigation may be reviewed include if new evidence or examples of the behaviour or conduct come to light, if the whistleblower would like to make their identity known and believe that doing so would significantly change the outcome of the investigation, or another appropriate reason.

A request for review of the investigation may not be granted, depending on the reason for the request being made and the availability of evidence which might substantially change the outcome of the original investigation.

11. AVAILABILITY AND INQUIRIES

This Policy is available to all employees, officers and associates engaged in the Company via the TCS Intranet by going to Contact Directory > Whistleblower Policy.

This Policy is available to external parties via www.cheesecake.com.au/whistleblower-policy.

Please contact the Human Resources department if you have any queries or concerns about this Policy. External parties can do so by contacting team@cheesecake.com.au or by calling our Head Office in Sydney on +61 02 8790 1001.

12. REVISION REPORT

This Policy will be reviewed periodically to ensure it remains up to date, compliant and effective. In the absence of more frequent circumstances that necessitate a review of this Policy, a review will be conducted once every 12 months as a minimum.

Date Version Comment
22 Jan 2020 v1.0 Release of new Policy

APPENDIX A

Name & Role Email Address Phone Number
Ken Rosebery
Managing Director
kenr@cheesecake.com.au +61 2 8790 1054
Evelyn Zhou
Financial Controller
evelynz@cheesecake.com.au +61 2 8790 1051
Peter Dable
General Manager Marketing & Operations
peterd@cheesecake.com.au +61 2 8790 1092
Nick Avgerinos
General Manager Franchise Development
nicka@cheesecake.com.au +61 2 8790 1055
Garry Murphy
General Manager Procurement & Supply
garrym@unsup.com.au +61 2 8790 1099
Charles Antoun
General Legal Counsel
charlesa@cheesecake.com.au +61 449 255 094
Jermaine Huang
Human Resources Officer
jermaineh@cheesecake.com.au +61 2 8790 1001
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