Right of reply: Old Mutual refutes whistleblower allegations

In response to allegations raised by SpeakOut SpeakUp on behalf of former Adviceworx employees, Old Mutual has reaffirmed its position, denying any breach of the Protected Disclosures Act. The company emphasises its adherence to legal protocols and fair governance during internal investigations. Furthermore, Old Mutual challenges the credibility of the allegations, citing a broader context of ongoing commercial disputes and a recent Labour Court judgment that found former employees engaged in “unlawful competition.” Despite regulatory inquiries, Old Mutual stands by its practices, including restraint of trade measures, and asserts its commitment to ethical standards and legal compliance within the financial industry.

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From Old Mutual

Old Mutual confirms that it is aware of the allegations raised by SpeakOut SpeakUp, a UK based organisation acting on behalf of two former employees of Adviceworx, a business in which Old Mutual is the majority shareholder.

Old Mutual was first approached by SpeakOut SpeakUp on 4 September 2023 alleging that Old Mutual had breached the Protected Disclosures Act. Old Mutual denies this allegation. The individuals concerned had together, made allegations against Adviceworx, and in accordance with good governance were dealt with internally according to the rules and protocols of the Protected Disclosures Act. Notwithstanding the fact that the individuals were engaged in a commercial dispute with Adviceworx, they were afforded every opportunity to raise their complaints to a panel established to hear their objections. The two individuals were legally represented, and the process followed was scoped and agreed with the input of their legal representatives. Old Mutual confirms that the investigation was concluded to its satisfaction, and that the outcome of the investigation did not corroborate or support the allegations made by the individuals.

Whilst we applaud the work of whistleblower platforms and the importance of protecting of whistleblowing specifically, we believe that the individuals concerned have not acted in good faith or fully disclosed all the elements of this dispute. The allegations and conclusions reached by SpeakOut SpeakUp are not based on fact and contain material omissions, and we refute them unreservedly. We also find the timing of such an allegation rather curious considering that it was raised and responded to last year, as well the fact that it follows hot on the heels of a recent judgment made by the Labour Court which we cover below.

The reality is that this matter has a long and complicated history and SpeakOut SpeakUp is not the first or only platform that has been approached as part of what we believe to be a broader smear campaign about alleged whistleblower reports which have supposedly been ignored by Old Mutual.

Allegations of Occupational Detriment

Old Mutual and Adviceworx are comfortable that they have at all times complied with their obligations under the Protected Disclosure Act (PDA) in respect of these individuals. This included status updates in relation to the consideration of the disclosures at periodic intervals. Furthermore, Adviceworx did not “fire” one of the individuals for making disclosures. The employment of the individual concerned was terminated in accordance with a settlement agreement concluded in 2020 (two years before he made protected disclosures).

Alleged breaches of FAIS

Despite the internal processes initiated by Old Mutual to review the individuals’ complaints, they instigated a concurrent complaint to the FSCA which resulted in a regulatory investigation. This investigation deals only with a very limited aspect of the Financial Advisory and Intermediary Services Act 37 of 2002 (FAIS Act), namely whether restraint payments made by ADX constitute prohibited sign-on bonusses, not the exaggerated accusations of churn being levelled by the individuals. ROT’s are commonly used across our industry (and in particular, in financial advisory businesses) to protect client relationships and intellectual property, and we use and enforce them for these purposes. The investigation is confidential in accordance with the provisions of the Financial Sector Regulation Act 9 of 2017. We confirm that no findings have been made against Adviceworx by the FSCA.

Aside from legal opinions obtained that confirm our position, Adviceworx had engaged with the regulator on its ROT’s and business model as far back as 2015, where the Registrar confirmed that genuine ROT’s will not be regarded as a sign-on bonus. This was again reviewed in 2018 where the model and the ROT practice were interrogated, and again the regulator did not express any concerns at the time. Adviceworx applies authentic ROT’s in pursuance with the guidance provided by the Regulator, which is why we believe that the allegations made by the individuals relating to ROT’s are not substantiated.

Labour Court judgment

Pertinently, all this took place whilst the individuals, who lodged the complaints deliberately and instigated whistle-blower reports with Speak Out Speak Up, were actively establishing a competing business and soliciting Adviceworx’s staff and clients. This is well-documented in the recent case and findings in the Labour Court. Adviceworx brought an urgent application to the Labour Court of South Africa on the 6th of October 2023.

We also draw your attention to the Times Live article published on 28 February 2024 with the headline “Financial advisers fired for pre-planned hijacking of previous employer.” Speak Up Speak Out has seen the judgement but has excluded it from its narrative even though it is clearly relevant to the allegations made to that platform.

This matter related to an urgent application in the Labour Court instituted by Adviceworx in October 2023 against several former employee financial advisers to enforce their restraint of trade and non-disclosure undertakings. The respondents in that application included Carmel Wealth Proprietary Limited (Carmel), Wealth Associates Central Proprietary Limited and Wealth Associates South Africa Proprietary Limited (collectively Wealth Associates). One of the individuals who made disclosures was the CEO of Carmel (from a position we understand he was recently removed), which is the parent company of Wealth Associates.

The judgment of the Labour Court, authored by the Honourable Acting Judge Snyman was handed down on 23 February 2024 and made findings against the respondents (and notably in respect of one individual), including:

1. The former “disgruntled employees” of Adviceworx participated in an “orchestrated business hijack” and a “concerted and pre-planned course of action” against the business of Adviceworx.

2. The “orchestrated business hijack” was “nothing less than unlawful competition on the part of” the former employees and Wealth Associates and Carmel.

3. The former employees “sought to rely on several false and/or unsustainable defences in trying to escape the consequences of the restraints of trade“, one of which related to the ongoing investigation by the Financial Sector Conduct Authority (FSCA).

4. The former employees were found to have “lacked honesty and integrity and that they simply cannot be trusted”.

5. Judge Snyman AJ: “…. must confess I find most strange, is that [Wealth Associates] and Carmel not only enter the fray to oppose the application, but it is actually a individual, in his capacity as CEO of [Wealth Associates], that deposes to the answering affidavit, with the individual respondents only signing confirmatory affidavits. In the many restraint of trade applications I have decided over the last five years at least, I have never seen this happen. It certainly lends support to the contention that the individual respondents, as well as [Wealth Associates] and Carmel, have at all times acted in concert.”

One of the individuals (who made the allegations and disclosures) was the deponent to some of the affidavits filed on the respondents’ behalf in the Labour Court matter and therefore intimately involved in what was termed by the Labour Court as an “orchestrated business hijacking“.

Finally, Wealth Associates (amongst others) made allegations of fraud and material non-disclosures on the part of ADX in the Labour Court. When it became clear to them that these allegations would be tested under oral evidence and cross-examination, the allegations were abruptly abandoned. The veracity and credibility of the allegations must be considered in this light. However, now that judgement has been issued – including damning findings against the respondents and the entities that backed them (Carmel and Wealth Associates) – they and their representatives have elected to raise these allegations via public platforms again as we have seen this past week.

In so far as the above case impacts the regulatory investigation being that Adviceworx had breached sign on bonus regulations, these allegations seem less convincing now that a Labour Court has found twice (on

urgent interim application and again in a final order) that Adviceworx restraints of trade are authentic and appropriate and have upheld them. The respondents have filed for leave to appeal the judgement.

Notwithstanding, should the Regulator determine this is a practice they are no longer comfortable with, we will, of course, along with other financial advisory businesses using them, find a different way to protect our business interest, which is clearly a protectable interest as specifically highlighted in the judgement.

The above background is critical, but unfortunately has not found its way into the narrative that is currently being circulated to media platforms. We therefore felt it important to ensure that responsible context is considered alongside any press related to this matter.

Old Mutual is and remains committed to the upholding of the highest standards, in line with our values and ethics, our statutory obligations and internal policies and procedures.