Where an employment contract provides independent rights of termination — one without cause and one for cause subject to a procedural condition precedent — an employer who terminates without cause cannot later invoke the Shepherd principle to justify the termination for cause, because no valid right of termination for cause existed at the date of termination. A contractual notice and hearing process expressed in emphatic terms ('agrees not to terminate... without') operates as a condition precedent to termination for cause, not merely a warranty sounding in damages. The Briginshaw standard and s 140(2)(c) of the Evidence Act 1995 (NSW) apply to allegations of sexual harassment in the workplace, not only to allegations of fraud or criminal conduct.
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