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St George execs outplayed by Westpac

15 March 2016 5:11PM
A group of seven former St George Bank senior employees have failed in their respective Federal Court appeals against the adequacy of their redundancy and termination of employment payments.The case stems from the period between the 2008 announcement of St George's merger with Westpac and its completion on 1 March 2010, when the merged entity became a single "authorised deposit-taking institution".The proceedings in lower courts centred on seven former employees of SGB who all remained with SGB until the scheme of arrangement was approved. All but two of them (Wittenberg and Murphy) were seconded to Westpac for a period. Of the seconded employees, all but one subsequently left SGB's appointment compulsorily before 1 March 2010.  One employee, (Moore) was terminated on 11 May 2010. A central reason for the secondments was that each of the employees worked in the SGB Treasury, which ceased to operate separately when the scheme of arrangement was approved.  Each then moved to a role with Westpac, although on secondment only while SGB operated under a separate authorisation as an ADI, before the merger was completed.  This was an important distinction, as the original judge found that, because St George's treasury division was wound down, there was no bonus pool for the executives to share and, in any case, the Westpac treasury operated with much smaller bonuses.One set of claims arose from a unilateral statement by SGB on 18 June 2008 to certain "key" staff, including all of the employees in this action, promising a "retention incentive payment" if certain targets were met by SGB for the financial year ended 30 September 2008, and if the employees remained in their employment with SGB as at 13 November 2008.  Another set of claims arose because when employees were seconded to Westpac they found that the level of bonus they had enjoyed at SGB was substantially reduced or eliminated while at Westpac.  A further set of claims arose because, when some employees were ultimately retrenched from SGB, the calculation of their severance pay was based on their regular salary, but excluded any amount referable to bonuses.  Finally, some in the group claimed their employment was terminated without what was claimed to be the "reasonable notice" required.  The employees claimed to have been misled about SGB's intentions.  They said they had understood that a certain target was proposed (which was met) but, unknown to them, SGB had intended to impose a higher one (which was not met).  Initially, payment was withheld but, ultimately, the promised payments were made.  The employees claimed that if they had known SGB's true intention they would not have stayed at SGB and, because they could have done better elsewhere, they suffered a loss by staying. The primary judge rejected those claims because he was not satisfied that the employees had proved any loss by showing that the opportunities they said they gave up were worth more at the time than those they secured by remaining with St George.  The appeal judges agreed almost entirely

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