Federal Court of Australia

TechnologyOne Limited v Roohizadegan [2021] FCAFC 137

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the primary judge on 2 October 2020 and the orders in respect of pre-judgment interest and costs made on 30 November 2020 be set aside.

3.    The cross-appeal and the notice of contention be dismissed.

4.    The matter be remitted for a new trial.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellants appeal against orders made by a judge of this Court following an application by Mr Behnam Roohizadegan, the respondent to the appeal (Mr Roohizadegan), under the general protections provisions of Pt 3-1 of the Fair Work Act 2009 (Cth) (the FW Act).

2    The first appellant (TechnologyOne) is a publicly listed enterprise software company. At all relevant times, the second appellant (Mr Di Marco) was Executive Chairman and Chief Executive Officer of TechnologyOne (collectively, the appellants).

3    Mr Roohizadegan was employed by TechnologyOne between July 2006 and May 2016. In February 2015 he was promoted from the position of State Manager for Victoria to the position of Regional General Manager. His employment was terminated on 18 May 2016.

4    During the period of almost 10 years in which Mr Roohizadegan was employed by TechnologyOne, it experienced substantial growth, as evidenced by its increase in annual revenue (from approximately $66 million plus licence fees of approximately $17 million in 2006 to $249 million plus licence fees of $56 million in 2016) and by the increase in its employees (from 377 in 2006 to approximately 1,000 in 2016).

5    Mr Roohizadegan’s gross income in the financial year 2006/2007 was $208,932. By the 2015/2016 financial year his gross income had increased to $854,128. Most of the increase was attributable to incentive payments.

6    By his second further amended statement of claim dated 30 September 2019 (the SFASOC), Mr Roohizadegan sought compensation and penalties on the basis that the termination of his employment was for a reason that was, or reasons that were, prohibited by the adverse action provision contained in s 340(1) of the FW Act. He also sought damages for breach of contract relating to the partial non-payment of certain incentives, and compensation for forgone share options.

7    The trial of the proceeding occupied 14 hearing days. A total of 29 witnesses were called. The court book comprised 16 arch lever folders. Unsurprisingly, the trial was conducted on the agreed, and nowadays quite orthodox, basis that the Court would not take into account any document unless it was referred to by counsel. And critical evidence from the principal witnesses was given viva voce.

8    The SFASOC pleaded 96 alleged forms of proscribed adverse action, but by the end of the trial Mr Roohizadegan’s counsel had whittled that number down to ten. In particular, he alleged that there were ten proscribed reasons for Mr Roohizadegan’s dismissal, seven of which were complaints that Mr Roohizadegan had made in relation to his employment.

9    The appellants contended that Mr Di Marco was the only person responsible for the decision to terminate Mr Roohizadegan’s employment, and that he made that decision not because of any reason proscribed by the FW Act (including the alleged complaints, or one or more of them) but because, in summary, licence fees in the Victorian region were not growing; concerns had been raised about Mr Roohizadegan’s team, including that it was a “team in crisis”; and Mr Roohizadegan had been unable to work well with three different managers within a two-year period.

10    The primary judge agreed that Mr Di Marco was the only person responsible for the decision to terminate Mr Roohizadegan’s employment, and rejected Mr Roohizadegan’s contention that the decision was a joint one made by an executive team, comprising up to ten people.

11    The primary judge held that, having regard to the presumption contained in s 361 of the FW Act, Mr Roohizadegan had established that by dismissing him TechnologyOne took adverse action against him for seven of the ten proscribed reasons alleged, contrary to s 340(1)(a)(ii) of the FW Act.

12    Mr Di Marco was found liable as an accessory.

13    In the course of his reasoning, the primary judge made a number of adverse findings about Mr Di Marco’s credit, describing his evidence, variously, as “tortured and evasive” (at [212]), “disingenuous” (at [233]), “inherently implausible” (at [237]) and “knowingly untrue” (at [253]). Ultimately, however, his Honour found that it was “unnecessary for the Court to record a finding that Mr Di Marco was not a witness of the truth”, and that because “[h]uman recall is imperfect … Mr Di Marco may have come to believe that the relevant events must have been as he gave evidence in this proceeding: when in fact they were not” (at [265]). His Honour then said (at [266]):

It is sufficient that I record … that I am satisfied that Mr Di Marco was a highly unimpressive witness and not one whose evidence I am entitled to accept in preference to that given by Mr Roohizadegan unless corroborated by contemporaneous documents or by other evidence which the Court accepts.

14    Mr Roohizadegan’s application was successful in respect of each of the principal claims for penalties and damages. The judge imposed penalties on each of the appellants (payable to Mr Roohizadegan) in the sums of $40,000 and $7,000 respectively, and ordered TechnologyOne to pay to Mr Roohizadegan $2,825,000 in respect of his future economic loss claim, damages for breach of contract in the sum of $1,590,000, and $756,410 as compensation in respect of his claim for forgone share options, plus interest on each of those amounts. The judge also ordered that TechnologyOne pay $10,000 as compensation analogous to general damages. See Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407; (2020) 301 IR 1 (the Reasons); and Roohizadegan v TechnologyOne Limited (No 4) [2020] FCA 1729 (which dealt with pre-judgment interest). His Honour also made a limited costs order in favour of Mr Roohizadegan. See Roohizadegan v TechnologyOne Limited (No 5) [2020] FCA 1734.

15    Counsel for Mr Roohizadegan said at trial that they sought the making of declarations of contravention of the FW Act, but they did not plead or otherwise proffer any form of declaration for his Honour’s consideration. In any event, his Honour did not make any declarations of contravention, but made an order that Mr Roohizadegan’s application pursuant to the FW Act be upheld.

16    The appellants rely on an amended notice of appeal dated 17 December 2020. They advance two main interrelated grounds of appeal in respect of the adverse action claim, as follows:

(1)    the learned primary judge failed to provide adequate reasons for his conclusion that the appellants did not displace the statutory presumption under s 361 of the FW Act that the adverse action taken against Mr Roohizadegan (the termination of his employment) was for a prohibited reason, including because the learned judge did not adequately or at all take into account the nature of the complaints relied on by Mr Roohizadegan and the circumstances in which each of them was made (ground 8); and

(2)    the learned primary judge did not answer the essential question – whether the appellants had established that the adverse action was not taken for a reason proscribed by the FW Act, or for reasons which included such a reason – by reference to all the evidence, including by reference to what senior counsel for the appellants described as “a very large amount of probative material, which would have been corroborative of what Mr Di Marco said …” (grounds 3, 4 and 5).

17    The appellants submitted that if either of those grounds of appeal were made out, it followed that the orders in respect of penalties, future economic loss and forgone share options must also be set aside.

18    The other grounds of appeal relating to the adverse action claim included that the learned primary judge’s finding that Mr Roohizadegan’s employment was terminated for a proscribed reason was “erroneous and against the weight of the evidence” (grounds 1 and 4); and that his Honour’s credit findings in respect of Mr Di Marco were “glaringly improbable, contrary to compelling inferences, against the weight of the evidence, affected by impermissible speculation, influenced by matters not put to Mr Di Marco or the relevant witnesses, and not based on a fair and objective assessment of the relevant evidence” (ground 6).

19    The appellants further submitted that the learned primary judge misconstrued the terms of the relevant contract governing Mr Roohizadegan’s employment and that the order made awarding damages for breach of it, by non-payment of incentive payments, should be set aside (grounds 9 and 10).

20    Mr Roohizadegan brought a cross-appeal, the grounds of which were contained in an amended notice of cross-appeal. He also relies on an amended notice of contention. Both are dated 29 January 2021.

21    The principal grounds of the cross-appeal were that the primary judge erred in assessing Mr Roohizadegan’s future economic loss on the basis that his claim was confined to the period ending 30 September 2020; that that period should have extended until his retirement in 2027; and that the award of general damages was, among other things, manifestly inadequate. It was also contended that the award of damages for future economic loss should be increased by $84,000, and that the primary judge had made errors in the amounts he awarded in respect of interest and costs.

22    The amended notice of contention argued that if the learned primary judge relevantly erred, his conclusion that the appellants contravened the FW Act should be upheld on the basis that each of three other people employed by TechnologyOne (Messrs Harwood, MacDonald and Chung) had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment.

23    For the reasons that follow, as to the adverse action claim, and with great respect to the learned primary judge, we agree with the appellants’ submissions that his Honour failed to provide adequate reasons for his decision and did not answer the essential question before him by reference to all the evidence. In that event, it is unnecessary to deal with the other grounds of appeal relating to the adverse action claim.

24    We will also allow the appeal with respect to the contract claim.

25    To the extent that the grounds raised by the cross-appeal and the notice of contention are necessary to determine, we reject them.

26    The appeal will accordingly be allowed, the cross-appeal and the notice of contention dismissed, the orders made by the learned primary judge set aside, and an order made that there be a new trial. The appellants sought orders dismissing both the adverse action claim and the claim for breach of contract, but as senior counsel for the appellants recognised during the course of oral argument, the appropriate remedy in each case is that there be a new trial.

27    As will become apparent, because the main grounds of appeal in relation to the adverse action claim contend that the learned primary judge did not consider certain relevant documents, it has been necessary in these reasons to set out at times lengthy extracts from those documents.

THe adverse action claim

The relevant provisions of the Fair Work Act

28    Section 340(1) of the FW Act precludes “adverse action” being taken against another person because, among other things, that person has exercised, or purported to exercise, a workplace right. It provides (relevantly):

340 Protection

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

Note:    This subsection is a civil remedy provision (see Part 4-1).

29    Section 341 defines the circumstances in which a person has a workplace right:

(1)    A person has a workplace right if the person:

…

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

…

30    By s 342(1) of the FW Act, an employer takes adverse action against an employee if (relevantly) the employer dismisses the employee.

31    Sections 360 and 361 facilitate proof by an applicant of a claim of adverse action. Section 360 provides that, for the purposes of Pt 3-1 of the FW Act, “a person takes actions for a particular reason if the reasons for the action include that reason”.

32    Section 361(1) creates a rebuttable presumption:

361 Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

…

33    Section 361 thus throws onto respondents the onus of proving that which is peculiarly within their knowledge. See, eg, Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [50] (French CJ and Crennan J), citing General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241.

34    Whether a respondent has discharged the “reverse onus of proof” is a question to be resolved at the end of a proceeding, and upon consideration of the entirety of the evidence adduced. As Jessup J (Rangiah J agreeing) explained in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 at [27]:

27    In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it.

35    It follows that the party making an allegation that adverse action was taken “because” of a particular circumstance must establish, in light of all the facts established in the proceeding, the existence of the circumstance as an objective fact. See, eg, Tattsbet v Morrow (2015) 233 FCR 46 at 75 [119] (Jessup J, Allsop CJ and White J agreeing); Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at 380 [100] (Tracey, Reeves and Bromwich JJ); Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 523-524 [62] and [65] (French CJ and Crennan J).

The evidence about the seven complaints

36    It is important to set out the evidence of those complaints upon which the learned judge relied in concluding that his dismissal was unlawful, because for the most part the detail of that evidence finds no place in the Reasons dealing with the question whether the appellants had established that the adverse action was not taken for a proscribed reason.

37    Before turning to the evidence relied upon by counsel for Mr Roohizadegan in their closing written submissions about the seven complaints, it is helpful to identify some of the relevant individuals referred to. Between February and October 2014, Mr Lee Thompson was Mr Roohizadegan’s immediate manager. Between October 2014 and 11 April 2016, Mr Martin Harwood held the position of Operations Officer for Sales and Marketing and was Mr Roohizadegan’s immediate manager. Mr Harwood was replaced as Operations Officer for Sales and Marketing on 11 April 2016 by Mr Stuart MacDonald. In March 2015, Mr Harwood had appointed Mr Metcalfe to the position of Regional Sales Manager for Victoria. He said that he had done so in order to assist Mr Roohizadegan in the increased responsibilities which he had as Regional General Manager for Victoria. Mr Peter Sutching was the Products and Local Government General Manager (a position of equivalent seniority to that of Mr  Roohizadegan). Ms Marie Philips was employed as Industry Manager.

Complaint 1 (3 February 2016)

38    The first complaint was defined as “the 3 February 2016 complaint”. The pleading relied on was the SFASOC at [9], which relevantly alleged: “On 3 February 2016 Mr Roohizadegan attended [a] meeting with Mr Di Marco. At the meeting, Mr Roohizadegan complained to Mr Di Marco of the threatening phone calls and behaviour Mr Harwood had subjected him to”.

39    Counsel’s closing submission in respect of that allegation cited the following extract from the transcript of Mr Roohizadegan’s evidence-in-chief as constituting the substance of the 3 February 2016 complaint:

Adrian [De Marco], I feel that I’m being undermined. I feel decisions are being made behind my back. I feel I’m being forced to recruit sales managers for my region, who I am responsible for. I feel that basically I’m not getting resources and tools of trade that I can do my work in order to – to – to grow my business …

During the last two days, Martin Harwood has called me a number of times to cancel your meeting with me.

I just wanted to let you know that Martin has said if I have – if you have this meeting with me today, and I don’t cancel it, by end of the day or end of the week … Martin has said ‘One of us has to go’.

Complaint 2 (20 April 2016)

40    The second complaint relied upon was defined as “the 20 April 2016 verbal complaint to Ms [Rebecca] Gibbons”, and was pleaded at paragraphs [17]-[18A] of the SFASOC.

41    Counsel’s closing submission in respect of that allegation cited at [226] of Mr Roohizadegan’s witness statement dated 7 September 2017 as constituting the substance of what he said to Ms Gibbons on 20 April 2016:

… Because of this conduct, and other conduct, I feel that I am being marginalised and prevented from doing my job.

… TechnologyOne owes me a duty of care to protect me from bullying from Marie [Philips], Stuart [MacDonald], Peter [Sutching] and Martin [Harwood] … and if TechnologyOne does not intervene I will be forced to bring legal proceedings against TechnologyOne.

42    That paragraph was redacted, and was therefore not in evidence, consistently with the way the trial was conducted. But, as the written submissions went on to say, and as the appellants do not dispute, Ms Gibbons effectively agreed that the extract above reflected the substance of what Mr Roohizadegan had said at the meeting.

43    The third, fourth, fifth, sixth and seventh complaints – pleaded at [22], [23], [40], [45] and [47] of the SFASOC, respectively – are each contained entirely within emails. We take each one in turn.

Complaint 3 (25 April 2016)

44    Mr Roohizadegan made complaints 3 and 4 after he received an email from Mr MacDonald on 25 April 2016 at 8:35 pm, which stated, among other things, “I would prefer if in the future we follow my direction”.

45    As to complaint 3, Mr Roohizadegan’s written closing submission at trial was as follows: “The Applicant pleads, and gives evidence, that he made a complaint to Mr MacDonald by sending him an email on 25 April 2016” (citing the SFASOC at [22] and Mr Roohizadegan’s witness statement of 7 September 2017 at [232]). The submission also correctly records that the respondents admitted that the relevant email was sent by Mr Roohizadegan to Mr MacDonald (citing the defence to the further amended statement of claim dated 21 December 2017 (DFASOC) at [25]), and states that the email was “clearly in substance a complaint” (citing trial exhibit A77).

46    Mr Roohizadegan gave the following evidence about the complaint 3 email in his witness statement dated 7 September 2017, which the written submission cites in a footnote: “On 25 April 2016, I sent an email in response to Mr MacDonald at approximately 9:15 pm, in which I stated that I always follow directions and complained that I felt I was being bullied by Ms Phillips and Mr Suchting regarding their decision not to allow me to attend the Bass Coast Shire Council Meeting”. In so far as that email concerned the Bass Coast Shire Meeting, it stated: “Even though we have not met yet in your two weeks at TechnologyOne I have always followed your directions at all time since you joined … albeit some of which I was not happy with (Bass Coast decision, 3rd day in your job)”. The email continued:

Stuart, if you do NOT want me to attend to tomorrow’s dinner (Tuesday evening) with Byron from Melbourne University, please tell me straightaway … I asked you in my email below of last Friday, but never received an answer …

I am the one who is totally confused, and I don’t know what is going on, as in my history of nearly 10 years at Technology One I was never told by an Industry Manager (Marie Phillips) and a Product General Manager (Peter Suchting) so directly/being bullied not to attendance a pre scheduled prospect demonstration/meeting in Victoria, which I have always considered been part of my job!

If I’m not allowed to meet my Technology One Victorian customers and prospects based on the directions you’re receiving from Marie, Peter, Martin and others, I need to understand what my job is please?

I look forward to your prompt response so that I know.

Regards

Behnam

Complaint 4 (25 April 2016)

47    The written closing submission in respect of complaint 4 was as follows: “The Applicant pleads, and gives evidence, that he made a complaint to [Mr Di Marco] by sending him an email on 25 April 2016” (citing the SFASOC at [23] and Mr Roohizadegan’s witness statement of 7 September 2017 at [233]). The submission also correctly records that the respondents admitted that the relevant email was sent by Mr Roohizadegan to Mr Di Marco (citing the DFASOC at [25]), and states that it was “clearly in substance a complaint” (citing trial exhibit A77).

48    Mr Roohizadegan gave the following evidence about the complaint 4 email in his witness statement dated 7 September 2017, which the written submission cites in a footnote: “On 25 April 2016, I sent an email to [Mr Di Marco] at 11:49 pm in which, among other things, I complained about the conduct of Mr [Stuart] MacDonald towards me”.

49    Much of that email to Mr Di Marco (which included a trail of emails exchanged between himself and Mr MacDonald) related to Mr MacDonald, as follows:

Hi Adrian,

I am awfully sorry that I have to escalate to you.

I still have not received a response from Stuart – please see trail of e-mails below.

It is my understanding that Stuart is my new OO for sales and marketing and not Martin anymore as per TechnologyOne announcements and what Stuart has told us over the phone.

I am really confused on the pattern of things that I see happening in a more intense way since early this year (following our meeting in Brisbane), decisions are being made for my region behind my back, as well I am being stopped to see TechnologyOne Victorian customers and prospects.

In addition to the events of Bass Coast, as an example even though I have a good business relationship with Byron from Melbourne University, and I had organized a dinner meeting to introduce Stuart to Byron on Tuesday evening, I have been told that only Martin and Stuart will attend. How would the customer see it?

This was discussed on the phone and in writing between me and Stuart (see trail of e-mails below).

Byron/Melbourne University will be confused in seeing two Operating Officers/same position at the same time, and given that Martin has a negative background with Melbourne University (previous implementation of our Student Management System, etc) and Martin’s role has changed, i.e. Stuart is the new OO for sales & marketing, my strategy was as the Head of TechnologyOne Region by introducing Stuart alone to Byron, this would be a fresh start.

I really believe that Martin and a few others are trying to settle old scores with me, or at least this is how it looks to me, and they are painting a pre-fabricated picture of me to Stuart which is influencing Stuart’s communication with me both verbal and in writing.

Adrian, I have always accepted and supported your decisions in hiring my OOs, whether it was Lee, Martin and now Stuart.

Even though Stuart and I have not met yet, I have been doing my best to report to Stuart, calling him on the phone, updating him first on any region account/sales activities (e.g. as was the case with La Trobe University, calling Stuart and telling him about the good news on our proposal/first gate pass, before anyone else knew), sending Stuart e-mails one on one, etc, but every time Stuart copies Martin back in.

I have also shared with Stuart that I feel my business went down because of Martin making decisions for my business unit last year and I am doing all I can to grow TechnologyOne in Victoria to the next phase of even more successes in the next couple of years. I am looking forward to meeting Stuart in person and start up a productive relationship with him, I would only hope that he will not be given any preconceived ideas on how he should view me and deal with me.

I would like to request to deal with Stuart solely rather than reporting jointly to both Martin and Stuart so that we rid ourselves of any past grievances that hang in the air pulling Stuart in the direction of the wind…. I would like to be back in the position of control and stability without fear that I am not welcome to see my very own client base.

Thanks,

Behnam

Complaint 5 (13 May 2016)

50    The written closing submission in respect of complaint 5 was as follows: “The Applicant pleads, and gives evidence, that he made a complaint to [Mr Di Marco] by sending him an email on 13 May 2016” (citing the SFASOC at [40] and Mr Roohizadegan’s witness statement at [284]-[285]). The submission also correctly records that the respondents admitted that Mr Roohizadegan sent the relevant email and that it was a complaint (citing DFASOC [37(a)]).

51    Mr Roohizadegan gave the following evidence about the complaint 4 email in his witness statement dated 7 September 2017, which the written submission cites in a footnote, in these terms:

I could not sleep the night of 12 May 2016, and I typed into an email the detail of what had happened. On 13 May 2016 at approximately 2:40 am, I sent an email to [Mr Di Marco] in which I complained to him about Mr [Stuart] MacDonald’s behaviour towards me the day previous.

On 13 May 2016 at approximately 8:18 am, the Second Respondent responded to my email and stated, ‘It is unacceptable behaviour from Stuart’.

52    Much of Mr Roohizadegan’s email (again cited in a footnote) related to Mr MacDonald. The email is lengthy, but it is as well to set it out in full, as follows:

Hi Adrian,

I still have not seen anything from Gareth as per your instructions to him in your e-mail below.

Given your very busy schedule, I am very sorry and my apologies in advance to you for what I have to say.

•    I had a very short chat with Stuart this morning (Thursday) asking him that provided he does not let others unnecessarily interfere in my business unit I will deliver to TechnologyOne those tremendous growth as I had done before… as in the last few years I have had a lot of interference into my business and despite that I still had met my budgets set for me, etc. I said to Stuart that his recent decisions in preventing me to see a Victorian prospect and to stopping me to participate (even for two hours) at our recent Bass Coast 3 days demo by Marie Philips, Peter Suchting endorsed by Stuart and Martin were disappointing… and this had totally marginalized me… Stuart just smiled, shook his head which appeared to me that he was happy with his decision, he did not say anything, and that was the end of our conversation today.

•    Peter (I brought him to Brisbane and you met him and you also know him from Curtin University times) contacted me via a message early this afternoon today (Thursday) asking if he could talk with me around sharpening our pricing further, I said I was happy to talk with him (Peter scheduled a meeting with me at around 2pm today).

•    I immediately went to see Stuart and said to him that Peter has contacted me regarding further pricing discount and I believe this is as a result of Stuart’s visit to La Trobe last Friday (as I had foretold and had begged Stuart not to attend as there was no need for Stuart to meet with La Trobe last week) and this has wide opened us for further negotiations… and I believe as a result of that unnecessary meeting , La Trobe is now trying it on to get further discounts, and Stuart said to me ‘Screw you Behnam’ and he walked away.

•    Because of the importance of this deal, I sent an e-mail regarding La Trobe’s latest development to you Adrian and others – see below.

•    I also went to see Paul James, updated him on the latest discount request from La Trobe, and asked Paul if I could use his office and wait for La Trobe’s phone call, which Paul kindly obliged. I asked Paul when Peter (La Trobe) calls me I’d like Paul to be the silent listener to our conversation as based on what I have witnessed in my dealings with Stuart during the last few weeks no matter what happens, Stuart is going to blame me (I was proved right once again, see below).

•    Peter from La Trobe called me at 2:11pm and I asked how things were and that I am in Brisbane, etc…. Peter then said that he needs us/TechnologyOne to sharpen our pricing as our implementation is too high, and also our lift and shift figure was too high. I replied that our implementation was only $167k and the other $328k is their customer requested services which they do not to take.

•    I told Peter that during his visit to Brisbane and his and Richard Frampton’s meeting with Adrian we had reached agreement on commercials/pricing and based on that agreement La Trobe took our proposal to their first gate on 21st April, which was approved by La Trobe and then it went to the second gate on 6th May in the morning, and once again TechnologyOne pricing/proposal was approved by La Trobe University, so what has changed since last week and since Stuart’s visit to them last Friday afternoon?

•    Peter said that he is under pressure from his CFO to reduce our pricing by $7m because of their NPV figures, etc…. I said to Peter that we/TechnologyOne had presented our BAFO, both La Trobe and TechnologyOne had agreed to that, and we have been working together on the business case, etc since last year and our pricing and discounts were not a surprise to anyone.

•    Peter then said that we really have to sharpen our figures to get this through otherwise he cannot get our proposal through the next phase of approvals (3rd gate FRC on 25th May before going to University Council for ratification/just rubber stamping on 6th June)… I again said to Peter, it is simply impossible to wipe out $7m from our BAFO, and I had taken our previous pricing, etc to our risk committee, and Adrian had approved that significant discount with a number of conditions as agreed such as pre-payment, 5 year contract, etc, and I cannot go and ask again for anymore discounts.

•    I also answered Peter’s concerns, and sold the value of our solution, what our SaaS offering provides versus just a lift and shift that he kept talking about…. we are different to Amazon, our power of one, we deliver a lot more additional services as part of our solution etc, that lift and shift providers do not do or provide, etc, etc…

•    As Peter was persistent (and at the same time I saw your email below that we need ‘getting the deal closed’) I simply asked Peter what is it that he must have to get things through, and he said at least $1m… once again I emphasized that I did not have the authority to give any further discounts, however IF TechnologyOne agreed to this, and I am not making any promises, can he get the deal approved at the 3rd gate FRC meeting, and his response was positive…. I said Okay I will ask but I cannot make any promises whatsoever.

After the phone call with Peter I went back to our Leaders/State Manager’s meeting at around 2:40pm today (Thursday).

•    We finished the two days session at around 3pm today (Thursday) and my sales manager Boris and me went downstairs to catch a cab to the airport.

•    As we were waiting downstairs Angela called to say that Stuart wanted to see me immediately and if I had not left Brisbane yet.

•    I went upstairs to 11th floor and Stuart was waiting for me.

•    Stuart then took me to Gareth office and said that he wanted Gareth to be his witness.

•    Stuart then shouted at me saying that did he tell me not to negotiate with La Trobe or not and why I had mentioned $1m additional discount figure to La Trobe University.

•    I said I had not mentioned any figures to La Trobe University, it was in fact Peter who mentioned to me $7m and then $1m as I was not budging, and that I had NOT agreed to anything with La Trobe and I don’t understand what is he getting at?

•    Stuart then said ‘Fuck you Behnam, don’t you get it’ I told you not to negotiate with La Trobe, and he continued to be abusive towards me and shouting and screaming why I had talked with La Trobe and had taken Peter’s phone call.

•    I said to Stuart I have not agreed to anything and the $1m figure was from Peter as per my email to Adrian, you and others (below).

•    Stuart again said that why did I sent an e-mail on this to Adrian, and I said that Adrian has been across this for a long time and this is a very important sale/deal that Adrian needs to be across it as per my previous progress e-mails from start to Adrian.

•    Stuart kept pushing me verbally did I tell you this and that and Fuck you Behnam, etc, and he started reading my email below to Gareth and me (which I had sent to you and others)… he was so persuasive that my e-mail says that I have given $1m discounted figure that I gave in and said look Stuart my English is not my first language and perhaps I did not convey the message clearly that Peter wants us to give him $1m discount; and by the way the reason we are at this point is not because of me but it is because of you meeting with La Trobe University last Friday afternoon despite of me asking you not to ask for a meeting with La Trobe.

•    Furthermore I said to Stuart that I had said to you last Friday that there was no need, no value add from you seeing La Trobe University, and you just went ahead and any good negotiator knows that no one does this at the state/position that we are/were with La Trobe and everything was agreed and they just were going through a process… your meeting with them would open up the Pandora’s box.

•    As Stuart kept being abusive towards me I said to Stuart please do not talk to me with the ‘F word’ language as this is not the way I was brought up. In front of Gareth, Stuart replied that he can say whatever he likes to me and he can do whatever he likes and I cannot do anything about this.

•    Stuart kept saying that I had offered a $1m discount to La Trobe and I kept saying no that was not the case.

•    I then said to Gareth and Stuart that I knew this would happen and that is why I had asked Paul James to listen to my conversation with Peter/La Trobe on the speaker phone and given that Stuart has a witness (Gareth) can I ask Paul James to come up and be my witness, but both Gareth and Stuart refused and said no.

•    After a few more shouts, swearing, bullying behavior, and abuses at me by Stuart (which I am sure the entire 11th floor had heard), I asked if there was anything else and could I leave as I had to catch my flight back to Melbourne, and they said I could go.

•    I had not expected ‘being interrogated’ and I felt like I had murdered someone, and worst still being verbally abused, shouted and screamed at for something that I thought I was doing the right thing for TechnologyOne by talking to a customer (La Trobe) and listening to what our Customer wanted to say…. After all listening and looking after our customers is what was hammered into us in the last two days in Brisbane.

•    When I left I was totally shaking, taken aback, distraught and stressed, and as I was leaving I said to Stuart no one has talked to me before in the manner that he behaved towards me, and I did not appreciate at all that he was using the F word on me, and I left.

•    As I was passing Edward’s office, Edward waved at me and I went to his office, and told him what had happened with Stuart and Gareth, and Edward like me was also surprised.

•    My sales manager Boris and I caught a taxi to the airport, and I had to keep my composure in front of my sales manager, though he kept saying what was/is wrong Behnam a number of times to me.

•    I arrived this evening to Melbourne and my family immediately noticed my very distraught state.

Adrian, I am very disappointed with the recent events, and I don’t know what and how Stuart has been briefed on me and what his objectives are, and I do not understand why he behaves in a state of total dis-trust and suspicion with me.

As you know what I have done for TechnologyOne with my team and others is fully documented, everyone knows and our competitors in Victoria envy us…. However based on the recent events Stuart insisting that he must meet with my sales team members alone, our Vic based customers and prospects alone (some against my recommendation and advise such as La Trobe University because of where we were/are in our engagements with them) and virtually begging Stuart that he should be patient with La Trobe and not meet with them until a few weeks-time etc it is becoming obvious to me that Stuart is trying very hard to get rid of me – see below:

•    Bass Coast (I was prevented to see my VIC prospect),

•    Melbourne University said they did not want to meet with Stuart without Behnam (Absolutely embarrassing meeting with Stuart, as Stuart kept looking at his iWatch whilst meeting with Byron (executive) to the degree that Byron turned around to Stuart and said Stuart if you have to go somewhere you can leave now, and I finish my lunch with Behnam)

•    City of Casey (I had to get the Corporate Services Director to come to our office, which she did at short notice, and then Stuart telling her he wanted to meet alone with her without Behnam)

•    La Trobe University (against very strong advice/recommendation from me last week, Stuart still met with them, this could have been the $7m lose meeting, but now it could be $1m lose meeting)

•    MY expenses being sent to Stuart for approval for Gold class tickets for staff who have done a good job (Stuart telling people HR to contact me) and I should have HR pre-approval.

As you and others know Adrian, I have bled for TechnologyOne and as a result we are proud where we are in Victoria with TechnologyOne… I have had even more aspirations for TechnologyOne in Victoria, taking us to $100m business in the next few years.

It is absolutely a shame what Stuart has done to me today especially after hearing you on Wednesday and your emphasis on our great culture and values at TechnologyOne.

Adrian, I am not sure that if under these circumstances I can work under Stuart with the kind of behavior that he has been displaying towards me from the start of his employment at TechnologyOne.

Victoria is a region that is working well and has consistently been delivering…

I have built many executive relationships and a pipeline of around $100m licences for TechnologyOne that with the right team which is coming together I can get these closed for TechnologyOne in the next few years.

The swearing, shouting, unprofessional behavior from Stuart towards me is absolutely disgusting, totally unacceptable, and unwarranted…. I have never ever in my life been treated or subjected to the way that Stuart did this Thursday afternoon. He intimidated me, was demeaning, untrusting, suspicious and I feel his professional and personal conduct was far short of what I would expect from someone entrusted to represent TechnologyOne in the honourable position of the Operating Officer.

Kind Regards,

Behnam

(Ellipses in original.)

Complaint 6 (13 May 2016)

53    The written closing submission in respect of complaint 6 was as follows: “The Applicant pleads, and gives evidence, that he made a complaint to Mr Chung by sending him an email on 13 May 2016” (citing the SFASOC at [45] and trial exhibits A23 and A24). The submission also correctly records that the respondents admitted that Mr Roohizadegan sent the relevant email and that it was a complaint (citing the DFASOC at [41]).

54    Mr Roohizadegan’s email to Mr Chung dated 13 May 2016, which the written submission cites in a footnote, was in these terms:

Hi Edward,

As discussed I am deeply hurt, Stuart’s behavior has caused me great angst, anxiety, stress, and sadness and … I am unable to function well this afternoon and I will be going home.

These events can be forgiven and forgone [sic], but I am afraid that Stuart displayed a dangerous trait of his personality that may be very abusive in nature and it may well happen to my colleagues in the future.

You said Stuart will not be interfering with La Trobe – see Amit’s email below…

Regards

55    Mr Di Marco responded:

Have a relaxing weekend; unwind..

I am not sure what happened, but Stuart has been counselled.

We are all senior people, so lets start a fresh on Monday.

Tks Adrian

…

(Errors in original.)

Complaint 7 (15 May 2016)

56    The written closing submission in respect of complaint 7 was as follows: “The Applicant pleads, and gives evidence, that he made a complaint to [Mr Di Marco] by sending him an email on 15 May 2016 (citing the SFASOC at [67A] and Mr Roohizadegan’s witness statement at [297]-[298]). The submission also correctly records that the respondents admitted that Mr Roohizadegan made this complaint (citing the DFASOC at [43]).

57    Mr Roohizadegan’s written evidence which he relied on about the complaint 7 email, which the written submission cites in a footnote, was in these terms:

On Sunday, 15 May 2016 at approximately 11:21 pm, I sent an email to [Mr Di Marco] (and copied in Ms Carr), in which I again complained about Mr MacDonald’s recent behaviour and that because of this behaviour, ‘I have completely fallen apart’. I attached the First Medical Certificate to this email, and requested information as to what ‘disciplinary action’ [TechnologyOne] was going to take against Mr MacDonald.

On Monday, 16 May 2016 at approximately 7:38 am, I received an email from [Mr Di Marco] in which he indicated he was ‘surprised’ by my email to him on 15 May 2016 and that he had spoken with Mr MacDonald and Mr Pye about our conversation on 12 May 2016. [Mr Di Marco] indicated that he was appointing Ms Carr to investigate the matter and complete an official report, and asked Ms Carr to organise a call with me on 17 May 2016 despite me telling him on 15 May 2016 via email that I was not medically fit for work.

58    The email he there refers to was in these terms (again, cited in a footnote):

Hi Adrian,

I feel I need to frame this situation with you before you read the more lengthy email below.

•    Based on recent events it has become obvious to me that either Stuart or some other people from Executive has an agenda to have me leave - I'm prepared to have that discussion at any time in a professional manner so that I know what the intentions of TechnologyOne is regarding my further service at TechnologyOne…. Instead of the toxic way things are currently managed with regards to me which is totally unacceptable and has stressed me immensely to a point that I have required medical treatment, I deserve better.

•    The abuse that I have received from Stuart is unprofessional and unnecessary, it has been witnessed by a large number of people within the business and has caused me an enormous amount of stress, anxiety, humiliation and I feel belittled, to the point that I had to see a doctor on Friday evening as I was extremely depressed and stressed as a result of this interaction. I have had feedback from many sources who directly approached me that the entire Finance team and others outside of Gareth's office heard Stuart’s abuses, yelling, bullying, etc, towards me, and it was the talk of the business last week, and this has also trickled down to Victoria. I am extremely embarrassed by this for both myself and how this event intruded and reflected on the well- established TechnologyOne culture, values and the TechOne Way.

•    This is clearly a pattern and I would suggest that you speak with others present at the regional managers meeting, the language used and the positioning of the company in Stuart’s words as “completely F…ked” was in front of the entire organization. It was portrayed as TechnologyOne being a complete basket case, and Stuart has been brought in to save TechnologyOne. Stuart even went to the length of showing a number of Videos/UTube on career builder monkeys (I think this is what was from?), and this is how we at TechnologyOne were depicted.

Thank you Adrian for your e-mail below and your phone call to me on Friday morning apologizing for the behavior of Stuart towards me, and I appreciate your concerns despite your busy schedule and your Board meeting on Friday 13th May.

However, in due respect it is not you who should be apologizing, it should be Stuart MacDonald and this needs to be in writing from him: apologizing and confirming that he will not demean, swear, intimidate, humiliate, abuse and bully me again in private or public, and additionally his confirmation that he will neither marginalize me in my work responsibilities, authority as the TechnologyOne General Manager Victoria with my TechnologyOne customers, prospects and TechnologyOne staff, and let me run my business unit in a manner which is outlined in my employment contract with TechnologyOne.

Adrian, I have worked for you and TechnologyOne for 10 years (coming July 2016), and I have consistently delivered and built the business up for TechnologyOne in Victoria…. I believe I have never let you down and all those deals that I have either created for TechnologyOne or been involved in, too many to list have all happened…. In fact Victoria is the only region of TechnologyOne which has worked well for you/TechnologyOne consistently, continuously, and as long as I am at TechnologyOne I will do so.

Stuart is a total unknown, unproven, he needs to understand he needs to support us, rather than being divisive and destructive as currently he is….. I have listed just a few examples in my previous e-mail below which has happened to me in Victoria since Stuart’s third day as an employee of TechnologyOne in April 2016. I don’t know what else he has done in other regions?! Except that I have heard the NZ General Manager/State Manager has left TechnologyOne and the same thing has happened to the NSW General Manager/State Manager since Stuart has been on board.

Based on my recent dealings with Stuart, despite his claims to fame, which I am not sure if these have been verified/checked or not by TechnologyOne before he was offered a job, it is disappointing that Stuart chose not to engage with me. This was despite my efforts to detail exactly where this La Trobe University deal was at and the steps that were in train to close this out; and despite my request he went behind my back and organised a one-on one meeting with Peter Nikoletatos/ La Trobe University which as stated by me was the worst thing we could do at this late stage in the process by introducing a new variable risk into a deal which is being closed/done/in final gates of customer approval.

As you know I am the first one in TechnologyOne to speak up, and to either escalate (though I do know some people at TechnologyOne who report to you or otherwise are not happy that I let you know what is really happening) or I raise my hands up when I need help.

I have done these on many occasions…. it is not about egos, it is about getting the deal done and looking after the customer/prospect which I always have front and center.

Another issue deeply concerning me but not yet spoken about was Stuart’s behavior in our Sales Forecast meeting on Monday 9th May (with my Victorian Sales Manager, Boris Ivancic and myself), when we mentioned to Stuart that we had an upside in our forecast and to increase our forecasted figures for our upcoming State Manager’s meeting in Brisbane without any valid reason Stuart swore and abused both Boris and me by saying: “you F…. two get your forecast sorted out” (there was no reason for him to abuse and bully both Boris and I). I even told Stuart at the time that both Boris and I were in Synch, and we are forecasting additional deals, so could not understand what his issue was when we were increasing the size of our Victorian forecast. After Stuart’s call concluded with us Boris was very upset at the time and I said to Boris that perhaps this was just an off-the-cuff comment from Stuart and let it go…. Towards the end of the phone call we found out that Duncan was also present in that meeting, and Duncan was listening to Stuart’s abuse in the background towards us.

I am not sure if anyone has mentioned to you or not, as how many times Stuart used the “F… “ word when addressing all of us in the last 1.5 days of Leaders/State Managers meeting (when you were not present), to the degree that some people said that they had never heard so many “F…” words in their entire past 10 years. Additionally Stuart virtually telling us that TechnologyOne/we were all monkeys and showing us offensive UTube Monkey videos, saying that this is effectively how he sees TechnologyOne, we and our sales teams at TechnologyOne are all monkeys, and he is the human depiction in the Video who has come to rescue TechnologyOne.

A number of people mentioned to me how offended they were…. I am not sure if Stuart knows or not that TechnologyOne has been very successful for over 30 years and he needs to build on it, rather than destroying the culture, values and other excellent pillars that you Adrian and TechnologyOne have put in place for all of us.

With Stuart’s language track record so far I am certain that Stuart will extend his “F… culture” externally towards TechnologyOne customers and prospects should the situation become slightly more challenging for him.

I also don’t believe Stuart understands the calibre of dedicated and committed professional people who are working in your organisation Adrian.

For your information some staff have contacted me wanting to know what happened in Brisbane, etc, and on asking them what they meant, I have been told that the TechnologyOne Finance staff and other staff outside Gareth’s office could hear the screams of abuse and swearing that Stuart had directed at Behnam on Thursday afternoon 12th May, and people are already gossiping and spreading my humiliation, abuse and being bullied, intimated by Stuart around the corridors of TechnologyOne now.

As you can see these gossips and other examples of humiliation that I have been subjected to as outlined in my e-mail below makes my position at TechnologyOne very difficult to continue…… unless we can provide some workable solution… My suggestion is for Stuart to direct his focus on some other regions which are not performing/working, such as NSW and New Zealand and allow me to continue delivering the growth results from the region that I have in the past. I commit to engaging with Stuart where required and introduce him to new deals or opportunities and invite him to Victoria etc as I had done with my previous Operating Officers before, BUT this needs to be under my terms rather than Stuart’s terms which Stuart currently operates under for my region/just doing anything he likes without consultation and any due respect to me.

Please see attached my medical certificate as I was so distressed that I had to go and see a doctor on Friday evening… I have completely fallen apart… last year and early this year it was Martin who was continuously humiliating, bullying me (including earlier this year that I came to see you and escalating to you in February 2016 when Martin had said to me “either you Behnam or me will be in this Company”), marginalizing me, and making decisions for my business unit, and now Stuart in a much bigger and unbearable intensity.

With the appointment of Stuart MacDonald as my new boss in the last few weeks I naively thought I could have a fresh start with our new Operating Officer of Sales & Marketing, Stuart (whom I have now learned is being coached by Martin closely), but very unfortunately how wrong I have been!

I would like to know what disciplinary action TechnologyOne/our HR is taking against Stuart? as a result of my official notification (my e-mail below) of Stuart’s abuse, bullying, intimidation, humiliation of me of which many people at TechnologyOne 11th floor were witness to, and the tremendous stress and anxiety that I have and am currently suffering.

Kind Regards,

Behnam

(Ellipses in original.)

59    Mr Di Marco’s response was as follows:

Behnam

We discussed this on Friday, so i am a little surprised to get this long and emotional email today. For the record this is where we are at....

I have talked to Stuart, and ED [Edward Chung] on the matter. Stuart acknowledges it became a ‘heated discussion’ but that you had contravened the specific instructions he had given you, not to negotiate with the customer.

I have also personally talked to Gareth who witnessed the episode you have referred to. By the way Gareth states it was not a bullying episode for the record.

I am not taking sides here, just briefing you on what I have been told, and what I have done...

Having said all of this, given how upset you clearly are, I have asked Kathy to officially investigate the matter and to do an official report back to me so that we can look at this from all aspects. Once the report is complete I will consider the disciplinary actions if necessary.

So for now I suggest lets let Kathy do her investigation and report; and that we all go back to work as normal. I have counselled Stuart (and you now), so as two professional and senior members of my staff I expect you both to go back to work and work appropriately and to restart your relationship.

Will you do this?

Jenn Pls sch a 15 mt call with Kathy and Behnam and ED for this morning at 9am

Adrian Di Marco

60    Mr Roohizadegan replied: “I will participate in discussions at 9am”.

The reasons of the primary judge with respect to the adverse action claim

Introduction

61    The learned primary judge summarised Mr Roohizadegan’s ten allegations that he had been dismissed in contravention of s 340(1)(c) of the FW Act as follows:

(a)    seven instances of his exercising his workplace rights by making complaints in relation to his employment: in particular, complaints as to his having been bullied;

(b)    his proposed exercise of his right to bring legal proceedings under a workplace law;

(c)    his proposed exercise of a safety net contractual entitlement; and

(d)    his having a safety net contractual entitlement.

62    The learned primary judge was satisfied that the respondents had shown, on the balance of probabilities, that neither of the matters (c) and (d) had been a reason for the termination.

63    The learned primary judge did not deal separately with Mr Roohizadegan’s allegation in (b) that he had been dismissed because of his proposed exercise of a right to bring legal proceedings under a workplace law, taking the view that it was subsumed in the issues regarding the seven complaints. No complaint was made about that on appeal.

64    There is no dispute between the parties on appeal that:

(a)    after he was dismissed Mr Roohizadegan became, and remains, incapable of ever working again;

(b)    Mr Roohizadegan made the seven complaints relied on by the primary judge; and

(c)    Mr Roohizadegan was “able” to make those complaints “in relation to his … employment” within the meaning of s 341(1)(c)(ii) of the FW Act and thus had a workplace right.

65    The reasons of the learned trial judge are lengthy, but for the purposes of deciding the dispositive issues raised on this appeal a large part of them can be put to one side. In order to explain why, it is necessary first to summarise their structure.

Structure of the primary judge’s reasons

66    The learned primary judge summarised Mr Roohizadegan’s adverse action claim under the rubric “The core of Mr Roohizadegan’s dismissal case”.

67    Having referred to s 361 of the FW Act, and to some of the relevant authorities (including Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; and State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441), the learned primary judge continued (at [75]-[78]):

75    … I thus proceed on the basis that if the Respondents establish on the balance of probabilities that Mr Roohizadegan’s pleaded instances of exercising his workplace rights (assuming the Court finds they were made) were not individually or collectively a “substantial and operative” reason for his termination then even if those pleaded instances were a factor or factors in his employer’s decision to dismiss him Mr Roohizadegan will fail to make good his case that he was terminated from his employment for a prohibited reason.

76    In the present case, the Respondents submit that the evidence entitles the Court to conclude that Mr Di Marco was the sole decision maker responsible for Mr Roohizadegan’s termination. On their behalf Dr Spry submits that the Court should accept Mr Di Marco’s evidence that he dismissed Mr Roohizadegan exclusively for the following reasons:

(1)    The licence fees in the Victorian region (for which Mr Roohizadegan was responsible) were not growing;

(2)    Concerns had been raised by Mr Roohizadegan’s team, which was a “team in crisis”; and

(3)    Mr Roohizadegan had been unable to work well with three different managers within a two-year period (T594-596).

77    Dr Spry [counsel for the appellants below] submits that the Court should accept Mr Di Marco’s evidence that none of the complaints as the Court might find Mr Roohizadegan to have made … played any part in TechnologyOne’s decision to dismiss him.

78    For reasons that I will later explain I accept the Respondents’ submission that Mr Di Marco was, ultimately, the sole decision maker in respect of Mr Roohizadegan’s dismissal.

68    His Honour next sets out a list of the key dramatis personae, and then provides a detailed chronology of events and correspondence. His Honour said at [83] of the Reasons that “[s]ubject to further explication in these reasons and to the qualification below, what is stated in the chronology serves as the Court’s findings”. The qualification that his Honour referred to appears in the next paragraph, in which his Honour says that “[w]here the chronology refers to an event in dispute as between the parties, it is qualified by being identified as a ‘claim’” and that those “matters so identified are not findings” but were rather recorded so that the events in dispute could “be placed within their historical context”. In any event, it is obviously the case that whenever a document is referred to in the chronology (or for that matter, anywhere in the Reasons), the learned primary judge is to be taken to have understood and accepted that the document was relevant and in evidence.

69    Having done so, his Honour turned to the topic of “The evidence and the credit of the principal witnesses”.

70    Under the sub-heading “Principles applied”, his Honour said (at [86]):

86    The parties agreed, and the Court ordered, that evidence concerning a number of critical matters (such as what transpired between Mr Roohizadegan and other relevant persons during the events he alleges were bullying) would be given viva voce. The trial was conducted on that basis. Having regard to that agreement, the paragraphs relating to the content of such conversations and events as were contained in the affidavits otherwise relied on by the parties were not read. The most critical evidence of the principal witnesses was thus given orally.

The relevant evidence

The witnesses

71    The learned primary judge then dealt seriatim with the evidence of each of the witnesses who testified: Mr Roohizadegan, Mr Di Marco, Mr Harwood, Mr Stuart MacDonald, the 12 witnesses called on behalf of Mr Roohizadegan (Messrs Kinkade, Mandie, Ivancic, Hamson, Price, Luczek, Dalton, Thompson, David MacDonald, Di Guilmi, Pantano and Davey) and then the 13 witnesses called on behalf of the appellants (Messrs Preston, Jarman, Dugina, Finch, Metcalfe, Irwin, Orchard, Arnott, Pye, Whiteley and Chung, Ms Carr and Ms Gibbons).

72    That evidence, and the judge’s findings, including as to credit, are found at [93]-[815] of the Reasons.

The critical importance of Messrs Di Marco, Roohizadegan, Harwood and Stuart MacDonald

73    For the purpose of deciding the issues that arise about the adverse action claim on this appeal, his Honour proceeded on the basis that only the evidence of Messrs Di Marco, Roohizadegan, Harwood and Stuart MacDonald was critical to the questions of credit and that “in most regards, the remaining evidence is of more marginal relevance”. His Honour continued (at [92]):

That is because much of the evidence given by the other witnesses in this trial throws little or no light on the critical question of what was or were Mr Di Marco’s reason or reasons for his decision to dismiss Mr Roohizadegan.

74    Although the learned primary judge says at [92] that Mr Harwood and Mr Stuart MacDonald gave evidence about questions of credit, it is tolerably clear from his Honour’s reasons about the critical question that arose under s 361 of the FW Act that their evidence ultimately did not bear significantly upon that question. See infra at [97]ff.

Findings about Mr Roohizadegan

75    His Honour’s findings about the evidence of Mr Roohizadegan are found at [93]-[187] of the Reasons. In so far as they relate to matters relevant to Mr Roohizadegan’s adverse action claim, and to the seven pleaded complaints, we set out those findings below.

76    His Honour’s findings in relation to the evidence of Mr Roohizadegan concerning the first complaint (the 3 February 2016 complaint to Mr Di Marco) were relevantly as follows (at [114]-[120]):

114    It was in that context that Mr Roohizadegan then gave evidence that when Mr Harwood sent him an email on 12 January 2016 stating that “Victoria cannot go backwards for a fourth year in a row”, he had rejected that assertion in a long email which he had copied to Mr Di Marco (Ex R33). Mr Roohizadegan’s evidence is that he felt offended by Mr Harwood’s accusation (T304, lines 14-26). His evidence is that Mr Harwood was factually wrong to have claimed that the Victorian region had gone backwards (even if that statement were understood as applying only to new licence fees) for the past three years. He arranged to meet Mr Di Marco on 3 February 2016 to correct the record, and to complain about Mr Harwood undermining him.

115    He gave evidence that when Mr Harwood learned that he had arranged to meet Mr Di Marco, Mr Harwood demanded he cancel the meeting. Mr Roohizadegan’s evidence is that Mr Harwood had threatened that “one of us has to go” when Mr Roohizadegan rejected his repeated demands to do so (T172-173).

116    Mr Roohizadegan’s evidence is that he made a handwritten contemporaneous note of those events in his diary. His note is in evidence as Ex A11 (CB4932). It reads as follows:

Monday 1 February 2016

Martin [Harwood] called whilst having lunch with Darryl

Said that he has just had a meeting with Adrian [Di Marco]

Why I am seeing Adrian this Wednesday and it is very serious so I need to tell him why and Martin wants me to call him later on

6:10pm Melbourne time – Martin called and I called Martin back, he was very very angry, why I am seeing Adrian, he is his boss and not my boss, I said Adrian is my boss too. I said Martin you expect me to advise big numbers but you do not support me and make decisions for my region, how do you expect me be accountable! etc

Tuesday 2 February 2016

Martin called me again @ 12pm today

He’s not happy with me, seeing Adrian etc.

I didn’t follow his instructions, I told him to give me an example of when

He said I lectured him on ‘how he can help me’ last night and he has been thinking last night

One of us has to go!

I said I am not going anywhere

Martin said that he is going to prepare a list for Adrian & tomorrow we see how things pan out! Martin has seen my e-mails to Adrian, and he is going to scrutinise me closely if I stay.

*    Martin again called, left a message, I called back & he said we must make an offer to Boris [Ivancic], new Sales Manager today, I said this is the issue where everything started as I don’t agree to give him a guaranteed commission.

Martin said he is going to make a list of everything that I am going to complain to Adrian about and one of us has to go!

(Spelling and grammar as in original handwritten entry).

117    Mr Roohizadegan’s evidence is that when he and Mr Di Marco met on 3 February 2016 he complained to Mr Di Marco about Mr Harwood having undermined him in his role, bullied him and having made decisions behind his back. He also told him that Mr Harwood had threatened him that if he did not cancel his meeting, one of them would have to go (T176, line 41-T177, line 14; T361, lines 5-14).

118    Mr Roohizadegan’s evidence is that after he made Mr Di Marco aware of Mr Harwood’s conduct Mr Di Marco had said to him “I’m not having any of this from Martin. I’m going to get him”. He had left his office to do so. Mr Roohizadegan’s evidence is that just before Mr Di Marco went to fetch Mr Harwood Mr Di Marco had asked him not to “tell [Mr Harwood] in front of me that he has said to you ‘one of us has to go’”.

119    His evidence is that Mr Di Marco had returned a few minutes later with Mr Harwood. He told the Court that Mr Harwood “didn’t seem to be happy” (T177, line 30).

120    Mr Roohizadegan’s evidence is that Mr Di Marco then had “said to both of us, ‘I think the world of both of you. I like you both. What is the issue?’”, to which he had responded by saying to Mr Di Marco “I like to recruit my own sales manager. I like to have my resources. I like not to be undermined. I like decisions not being made behind my back”.

77    His Honour’s findings in relation to the evidence of Mr Roohizadegan concerning the second complaint (the 20 April 2016 complaint to Rebecca Gibbons) were as follows (at [126]-[127]):

126    It is … not in dispute that Ms Gibbons, a junior member of TechnologyOne’s HR team, visited Melbourne on 20 April 2016. Mr Roohizadegan’s evidence is that he complained to her, inter-alia, of his having been bullied by Mr Sutching. He also complained that Mr Harwood and Mr MacDonald were preventing him from doing his job. He told Ms Gibbons that he believed Mr MacDonald had made a decision to direct him not to attend TechnologyOne’s presentation to the Bass Shire Council on the recommendation of Mr Sutching.

127    Mr Roohizadegan gave evidence that he had asked Ms Gibbons whether what had happened to him amounted to bullying, and that she had told him that it did. (T183, line 34 – T184, line 29). It is uncontentious that Ms Gibbons later sent Mr Roohizadegan an email attaching a link to TechnologyOne’s bullying policy.

78    His Honour’s findings in relation to the evidence of Mr Roohizadegan concerning the third complaint (the 25 April 2016 email to Mr MacDonald) were as follows (at [129]):

129    Mr Roohizadegan’s evidence is that at 9.15pm on 25 April 2016 he then sent an email to Mr MacDonald querying why he had instructed him (in a phone conference in which Mr Harwood had also participated) not to attend a meeting with Melbourne University (Ex R21, CB5676). In his email Mr Roohizadegan referred to his being bullied by Mr Sutching and Ms Phillips. He asked Mr MacDonald, in view of what he asserted to be his exclusion from the running of the region, “I need to understand what my job is please.”

79    His Honour’s findings in relation to the evidence of Mr Roohizadegan concerning the fourth complaint (the 25 April 2016 email to Mr Di Marco) were as follows (at [130]):

130    Mr Roohizadegan’s evidence is that later the same evening he had sent an email to Mr Di Marco to complain that Mr MacDonald was stopping him doing his job, decisions were being made behind his back and that he was being prevented from seeing customers and prospects (Ex R21, CB5674).

80    His Honour’s findings in relation to the evidence of Mr Roohizadegan concerning the fifth and sixth complaints (the 13 May 2016 emails to Mr Di Marco and Mr Chung respectively) were as follows (at [140]-[142]):

140    Mr Roohizadegan’s evidence is that … [on] 13 May 2016 … he sent emails to Mr Di Marco and Mr Chung to complain about having been bullied by Mr MacDonald. His evidence is that Di Marco responded immediately stating that such behaviour was unacceptable (Ex A30, CB6411-6427). Mr Di Marco had followed up that email with a personal phone call to Mr Roohizadegan.

141    His evidence is that Mr Di Marco sent an email to him (copied to Mr Chung and Ms Carr) later the same day to inform him that Mr MacDonald had been counselled. He advised Mr Roohizadegan to relax and enjoy the weekend. In concluding his email Mr Di Macro said he hoped that everyone would “start afresh” on Monday (Ex A24, CB6431).

142    Mr Roohizadegan’s evidence was that he was further aggravated in that Mr Di Marco had not required Mr MacDonald to apologise.

81    His Honour’s findings in relation to the evidence of Mr Roohizadegan concerning the seventh complaint (the 15 May 2016 email to Mr Di Marco) were as follows (at [143]-[145]):

143    Mr Roohizadegan’s evidence is that on 15 May 2016 he sent a second email to Mr Di Marco to complain about MacDonald’s behaviour. He told Mr Di Marco that he had “completely fallen apart” as a result of his having been bullied. He attached a medical certificate that he had obtained to his email. The certificate stated that he was unfit for work. He asked Mr Di Marco what “disciplinary action” he proposed to take (Ex R26, CB6665-6667).

144    His evidence is that Di Marco responded by sending him an email to advise him that Ms Carr would be investigating his complaint about Mr MacDonald.

145    Mr Di Marco suggested that in the meantime both Mr Roohizadegan and Mr MacDonald should go back to work and resume their relationship (Ex R26, CB6664).

82    Having considered competing submissions by counsel about whether Mr Roohizadegan was, or was not, a reliable or credible witness, the learned trial judge, having made a number of observations not relevant to any issue on appeal, then said (at [186]-[187]):

186    I find [Mr Roohizadegan] to have been a witness of the truth.

187    That conclusion does not necessitate this Court accepting every particular of Mr Roohizadegan’s evidence. A court not infrequently will conclude that an otherwise impressive and truthful witness’s recall of a particular event or conversation cannot be accepted or should be accorded little or no weight, having regard to other contrary evidence. However, I am satisfied that Mr Roohizadegan was a most impressive witness. Further, I am satisfied that the Court is entitled to rely on his contemporaneous notes as are in evidence as compelling evidence of the events they record.

83    We turn now to the learned primary judge’s findings in respect of Mr Di Marco, in so far as they are relevant to the adverse action claim.

Findings about Mr Di Marco

84    Having (at [192]) repeated Mr Di Marco’s three asserted reasons for terminating Mr Roohizadegan’s employment, his Honour continued by setting out at [193]-[197] relevant parts of Mr Di Marco’s evidence-in-chief in relation to that decision, including his evidence with respect to the email sent by Ms Carr to Mr Di Marco, forwarding Ms Gibbons’ email to Ms Carr the previous day (the Carr email):

193    With respect to his making the decision to terminate, Mr Di Marco gave the following evidence-in-chief (T522):

The email from Kathy Carr sort of overtook everything. You know, it just – just brought everything to an end because it was so bad, but there were other things that were happening that meant that Behnam was already in a very precarious position with the company, you know, it was very unlikely, totally unlikely he would stay. And the main issue there is this behaviour that was escalating where he was undermining his operating officer where he was pushing back on things that were not acceptable to push back on. He was not taking responsibility, which was clearly his responsibility. He was complicating things, causing confusion, and also, too, the licence fees had stagnated, which was just unacceptable.

194    Mr Di Marco’s evidence is that up until 2016, he had continued to have confidence that with mentoring from his direct reports Mr Roohizadegan could augment his commitment and passion with new leadership skills and take the business forward in its next phase of growth (T520, lines 5-17). He had put in new operating officers to mentor Mr Roohizadegan with that objective. In 2016 however, that had gone badly wrong:

There was, firstly, a guy called Lee Thompson. Lee wasn’t with us very long, and there had been some issues with Lee generally and then with Lee and Behnam, a few bumps there, but, anyway, Lee left and I put in a new operating officer, a guy called Martin Harwood. Now, Martin I have known for over 35 years. He is one of the most talented execs in the IT industry in Australia. He is exceptional. You know, I’ve work with him for such a long time. So I brought Martin in so that I had someone really good who I knew and trusted. Lee I didn’t know. We brought him in and we’d had some problems, so this time I brought Martin in because I knew Martin and I knew what he could do. I’d seen what he could do. I had confidence in him that he would be able to mentor the regional managers, Behnam in particular, and help them to put in place the structures and the systems that they needed to grow. So I put Martin in. And that works – was working well, I could see. You know, there were those bumps again, and there are in some emails there, but in 2016, early 2016 the email you brought me to earlier about the profit forecast, that’s where it just totally came off the rail. Literally within months the whole thing just spun out of control. Behnam’s demonstrated a set of behaviours which were just totally inappropriate. He was not taking responsibility as Martin had alluded to. He was undermining Martin. He was undermining other people in the company. He was making things difficult. He was confusing things. He was pushing back on things that were just not appropriate to push back …

195    Mr Di Marco’s evidence is that when he became aware on 25 April 2016 of the contents of Ms Gibbons’ report regarding the complaints that some of TechnologyOne’s staff had made about Mr Roohizadegan’s conduct and the culture of the Victorian region, he had immediately concluded that he had no choice “but to let Benham (sic) go” (T522, line 30).

196    His evidence was, however, that Mr Roohizadegan was “almost out the door anyway” (T522):

There were issues before that and so before that email Behnam was really almost out the door anyway. You know, he was about to be exited anyway, and I’m explaining the chronology of what happened before that. The email from Kathy Carry sort of overtook everything. The email from Kathy Carr sort of overtook everything. You know, it just – just brought everything to an end because it was so bad, but there were other things that were happening that meant that Behnam was already in a very precarious position with the company, you know, it was very unlikely, totally unlikely he would stay. And the main issue there is this behaviour that was escalating where he was undermining his operating officer where he was pushing back on things that were not acceptable to push back on. He was not taking responsibility, which was clearly his responsibility. He was complicating things, causing confusion, and also, too, the licence fees had stagnated, which was just unacceptable.

(Emphasis in bold in the original).

197    Mr Di Marco explained his reference to licencing fees in that evidence as follows:

The licence fees was – is what drives our business. It is what has made us successful is this 10 to 15 per cent licence fee growth. Everything we do is about getting licence fee growth. From that comes our profitability. From that comes our success as a company and underpins the business. So the licence fee growth is 10 to 15 per cent, and every region has to contribute that. Now, a region may miss that one year, and that’s fine if there’s a good reason. To miss it two or three years is unacceptable. An example of that is that, 12 months earlier, I had let the regional manager for New South Wales go because he had missed his numbers two years in a row, which is not acceptable. I mean, these people are paid a million dollars a year. They’re paid to perform at a high level. They’re paid there to deliver the results. And Behnam’s licence fees had not grown for three years. It was a huge drain on the rest of the business. We had to support it. And the fact that Behnam had pushed back on that and was not accepting responsibility for it was just unacceptable.

85    At [198] of the Reasons, his Honour sets out a passage from the transcript of the cross-examination of Mr Di Marco about Mr Harwood’s email referred to above and his comment to Mr Di Marco that “Victoria could not ‘go backwards for a fourth year in a row’”. At [199] his Honour sets out a passage from Mr Di Marco’s evidence in chief, the gist of which was that he had decided Mr Roohizadegan had to be dismissed upon his becoming aware of the contents of the Carr email.

86    Commencing at [201] his Honour sets out and then considers the competing submissions made by the parties on Mr Di Marco’s credit, focusing in particular and at length on the question whether or not Mr Di Marco was “reluctant to acknowledge inconsistencies within his evidence”. Having said that part of the evidence that Mr Di Marco gave about him being the sole decision maker (a fact that his Honour accepted) was nonetheless “tortured and evasive” at [212] of the Reasons, he continued as follows (at [213]-[214]):

213    A second instance of Mr Di Marco being reluctant to acknowledge inconsistencies within his evidence is that which arose when he was cross-examined with respect to his statement in evidence-in-chief that before April 2016 Mr Roohizadegan was “hanging on, barely, to his position” because of slow growth in licence fees and “escalating behaviours” (T530). His evidence-in-chief was that 2016 “looked like it was going to be a train smash” (T538).

214    When Mr Tracey confronted Mr Di Marco with TechnologyOne’s forecasts for 2016 as were suggested to show otherwise, he responded as follows:

Mr Tracey:    The reality is, Mr Di Marco, that there was no problem whatsoever with the forecast for Mr Roohizadegan for the financial year 2016, was there?

Mr Di Marco:    I was told there was, so – and I will have to look it up (T585).

87    His Honour then turned (at [218]) to Mr Di Marco’s evidence concerning Mr Roohizadegan’s “inability to work with his past direct reports”, as follows:

218    A further instance of Mr Di Marco being seemingly oblivious to the need to acknowledge an obvious contradiction in his own evidence arose with respect to his evidence that one of the reasons he had for Mr Roohizadegan’s termination was his inability to work with his past direct reports. Those three managers (in chronological order) were Mr Lee Thompson, Mr Martin Harwood and Mr Stuart MacDonald. Mr Thompson’s evidence was to the effect that by mid-2004, after what had been a challenging start, he and Mr Roohizadegan had developed a mutual respect and had worked well together. Pressed by Mr Tracey to accept that his assertion that Mr Roohizadegan had been unable to work well with his past three direct reports therefore could not be true, Mr Di Marco gave the following evidence:

Mr Tracey:    You’re happy to accept that, that they could work well together and then that--?

Mr Di Marco:    If he said that, yes …

Mr Tracey:    So that, I put it to you, could not have been a valid reason … to terminate Mr Roohizadegan’s employment, namely that he could not work well with Thompson?

Mr Di Marco:    Yes, it was.

Mr Tracey:    It was, was it, nevertheless a valid reason you say?

Mr Di Marco:    Yes, it was part of the—yes it was a reason.

Mr Tracey:    Well I put it to you that’s just simply irrational, Mr Di Marco. You have two people saying that they can work together, and you’re saying they cannot?

Mr Di Marco:    It’s not irrational, no.

219    It was also put to Mr Di Marco that both Mr Thompson and Mr Harwood had given Mr Roohizadegan excellent or good ratings (A in the case of Mr Thompson and B in Mr Harwood’s instance) on TechnologyOne’s routine ABC staff evaluation criteria (T576-577). Mr Di Marco’s explanation for maintaining that his evidence was not for that reason false was that he had never seen those ratings (T576-8).

220    Even accepting that to have been the case, Mr Di Marco advanced no explanation as to why he had never sought out or paid any regard to those formal assessments of Mr Roohizadegan’s performance by his direct reports.

221    In any case given Mr Thompson’s contrary evidence there is no plausible basis as would lead the Court to accept that Mr Di Marco’s decision was based, inter-alia, on his having an honestly held opinion that Mr Roohizadegan had been unable to work well with Mr Thompson.

222    I also note that Mr Di Marco gave evidence that he had made the decision to terminate Mr Roohizadegan’s employment on 25 May 2016. At that time Mr MacDonald (the third direct report Mr Di Marco stated that he then considered Mr Roohizadegan to be unable to work with) had been employed for only two weeks. In that time he had neither visited Melbourne, nor met Mr Roohizadegan. I reject the proposition that in those circumstances Mr Di Marco could have formed an honestly held view that Mr Roohizadegan would have been unable to work constructively with Mr MacDonald had Mr Di Marco given any attention to the facts as he knew them to be, and approached that question in good faith.

88    His Honour next turned (at [226]-[231]) to the Carr email, as follows:

226    As I have earlier identified, of significance in these proceedings on the Respondents’ case is the email sent by Ms Gibbons to Ms Carr which she in turn she forwarded to Mr Di Marco. Ms Gibbons’ email reported a number of allegations made by some staff members about Mr Roohizadegan’s management of the Victorian Office (Ex R58, CB5596-5597). Mr Di Marco received a copy of that email on 25 April 2016. His evidence in examination-in-chief was that he had been “flabbergasted” by its contents (T518). It was, he gave evidence, “one of the worst emails I’ve received in 33 years of being in business. I mean, it’s just an atrocious, atrocious email and horrible” (T501, lines 20-22). His evidence was that he had acted upon the content of that email as a basis for terminating the employment of Mr Roohizadegan (T519).

227    Mr Di Marco gave evidence that he made the decision to terminate Mr Roohizadegan’s employment on his receipt of that email on 25 April 2016 (T523). He had communicated his decision to the members of TechnologyOne’s Executive Team at a meeting that had been convened to discuss the subject of that email the following day.

228    His evidence was that he did not recall Ms Carr (TechnologyOne’s HR Director) advising him and the executive at that meeting that Ms Gibbons’ email merely contained allegations, and that those allegations should not be acted upon without an investigation. Mr Di Marco was cross-examined as follows (T572, lines 44-46):

Mr Tracey:    Kathy Carr at that meeting said to you that TechnologyOne…needed to investigate the concerns in Ms Gibbon’s e-mail?

Mr Di Marco:    I do not recollect her saying that, no….

229    Mr Di Marco however conceded that he had “been happy not to investigate … the allegations against Mr Roohizadegan” (T573, lines 13-19).

230    I find it to be implausible, and reject, that Mr Di Marco gave truthful evidence that he had no recollection of Ms Carr’s advice. Ms Carr’s evidence-in-chief (which was corroborated in substance by other attendees of the meeting) was to the effect that not only had she provided such advice, but also that Mr Di Marco had then insisted there not be an investigation (T1027-1028):

Ms Carr:    … I highlighted that because we had received a complaint from staff we needed to investigate it. And if they were going to make a decision about termination we needed to do that quickly…

Dr Spry:    Was anything said about when you said—did you say there needed to be an investigation did you?

Ms Carr:    Yes. So Adrian said that he didn’t want there to be an investigation …

…

Dr Spry:    And did he tell you why he didn’t want the staff to go through an investigation?

Ms Carr:    Yes, because the complaints were very serious and there were other issues at play here and it was—that’s all.

231    Ms Carr’s evidence was not only that she did give that advice at the 26 April 2016 meeting. She also gave evidence that on 3 May 2016, when TechnologyOne’s executive met for a second time to discuss Mr Roohizadegan’s future, she had again asserted that TechnologyOne needed to investigate the allegations in Ms Gibbons’ email (T1069, lines 41-42).

89    His Honour then turned to what he described as “a further aspect of the evidence Mr Di Marco gave with respect to Ms Gibbons’ email which leads me to reject Dr Spry’s submission that Mr Di Marco made appropriate concessions when unable to recall specific events” (at [235]ff), as follows:

235    Ms Gibbons’ email not only set out the allegations which some staff had made against Mr Roohizadegan, but also included a statement that:

He [Mr Roohizadegan] is considering a bullying claim against Peter Sutching in reference to a comment in an email that stated he was over “this behaviour”. He told me was considering legal action due to this.

236    When it was put to Mr Di Marco in cross-examination that having read Ms Gibbons’ email he must have become aware that Mr Roohizadegan had made a complaint of having been bullied and was considering legal action, his evidence was as follows:

Mr Tracey:    It’s an email that you say you relied on as the basis for terminating Mr Roohizadegan’s employment; is that right?

Mr Di Marco:    Yes, yes.

Mr Tracey:    And it’s an email …?

Mr Di Marco:     Mmm.

Mr Tracey:    … that happens to refer to the applicant, Mr Behnam Roohizadegan, considering a bullying claim and is considering taking legal action?

Mr Di Marco:    Yes.

Mr Tracey:    Surely that is something that motivated you – well, withdraw that. Surely it’s something that you took in?

Mr Di Marco:    At the time, no. I did not take that in.

Mr Tracey:    I put it to you that you read it and that was one of the reasons why you decided, on the basis of that email, to terminate his employment?

Mr Di Marco:    Definitely not.

Mr Tracey:    You were aware though, weren’t you, that Mr Roohizadegan was considering legal action because of that?

Mr Di Marco:    At the time, as I said, I did not take that in. I was focused on the broader more important issues of the email.

Mr Tracey:    Are you saying that the possibility of legal action against your company is not an important issue, is that your evidence?

Mr Di Marco:    Someone considering legal action is not important. Okay. It’s not significantly important. It’s considering. So it was not.

237    In the context in which those events occurred, I am satisfied that I am entitled to find it inherently implausible that a claim of such seriousness was overlooked by Mr Di Marco. I am satisfied that I am entitled to reject that evidence.

90    As to the “team in crisis” point, his Honour said (at [241]): “Further, Mr Di Marco gave evidence that Mr Roohizadegan’s team in Victoria was in crisis. However, in cross-examination he accepted that Ms Gibbons’ email did not refer to the whole of the Victorian staff and had excluded at least one member of the sales team … It will be recalled that his evidence-in-chief had been that Ms Gibbons’ email had recorded the views of ‘the whole sales team, every person in the sales team … That’s the amazing thing, the whole team’”.

91    After dealing with further matters not relevant to this appeal, his Honour concluded (at [266]), that “Mr Di Marco was a highly unimpressive witness and not one whose evidence I am entitled to accept in preference to that given by Mr Roohizadegan unless corroborated by contemporaneous documents or by other evidence which the Court accepts”.

92    Because, as we explained earlier, the learned primary judge proceeded on the basis that the remaining evidence was of “more marginal relevance”, because much of it “throws little or no light on the critical question of what was or were Mr Di Marco’s reason or reasons for his decision to dismiss Mr Roohizadegan”, we can pass over, for the most part, [267]-[815] of the Reasons (which dealt with that remaining evidence).

93    We can also put to one side that part of the Reasons that dealt with expert evidence, including from an expert recruiter, psychiatrists and forensic accountants ([816]-[897]), because it has no bearing on any issue that arises on appeal.

Findings about whether Mr Roohizadegan made the pleaded complaints

94    We thus pick up his Honour’s reasons at [898], where he turned to the (now uncontroversial) issue of whether Mr Roohizadegan made the pleaded complaints. His Honour concluded that he was satisfied on the balance of probabilities that Mr Roohizadegan had made seven pleaded complaints. His Honour reasoned as follows (at [902]-[912]):

902    As to the seven pleaded complaints still pressed by Mr Roohizadegan in this proceeding, I take Dr Spry in his closing submissions to have not put in dispute that Mr Roohizadegan did in fact make the complaints he pleads at the following paragraphs of his Further Amended Statement of Claim:

•    paragraph [22], being a complaint to Mr MacDonald made by email sent at 9.15pm on 25 April 2016, inter-alia about his having been bullied and directed not to attend a pre-scheduled meeting with a prospect;

•    paragraph [23], being a complaint to Mr Di Marco made by email sent at 11.50pm on 25 April 2016, inter-alia about decisions having been made behind his back;

•    paragraph [45], being a complaint to Mr Chung made by email sent on 13 May 2016 about his having been bullied by Mr MacDonald, and

•    paragraph [40], being a complaint to Mr Di Marco made by email sent on 13 May 2016 about his having been bullied by Mr MacDonald; and

•    paragraph [47], being a complaint to Mr Di Marco made by email sent on 15 May 2016 regarding his having been bullied by Mr MacDonald and more generally.

903    Dr Spry contends only that the timing and context of those complaints demonstrate that they did not play any part in Mr Di Marco’s decision making. I will return to whether I should make such findings in due course.

904    Dr Spry however submits that I should find that Mr Roohizadegan did not make the complaint he pleads at paragraph [9] of his Further Amended Statement of Claim. There he claims that he complained to Mr Di Marco in a meeting on 3 February 2016 about threatening phone calls and behaviour to which he asserted Mr Harwood had subjected him. Dr Spry submits that I should accept Mr Di Marco’s evidence that at no time had Mr Roohizadegan raised with him the fact that he felt bullied by Mr Harwood, in preference to the evidence that Mr Roohizadegan gave with respect to what was said during their meeting on that date. I need not repeat my reasons for rejecting that proposition.

905    I find it to have been convincingly established that Mr Roohizadegan did in fact make the complaint he pleads in paragraph [9].

906    Dr Spry further submits that I should not accept that Mr Roohizadegan made the complaint he pleads at paragraph [18A]. That pleading relates to the verbal complaints he asserts he made to Ms Gibbons during her visit to Melbourne on 20 April 2016. Dr Spry refers to the allegation as being that Mr Roohizadegan told Ms Gibbons words to the effect that:

TechnologyOne owes me a duty of care to protect me from bullying from Marie, Stuart, Peter and Martin. I have not been well since my daughter’s medical condition, which I have discussed with you and Kathy Carr previously. TechnologyOne owes me a duty of care, and if TechnologyOne does not intervene I will be forced to bring legal proceedings against TechnologyOne.

907    In urging the Court to find that what Mr Roohizadegan pleads at [18A] should be rejected, Dr Spry places emphasis on two things. The first is that although Ms Gibbons had sent Mr Roohizadegan a link to TechnologyOne’s bullying policy, he had not followed that up or made any formal complaint. The second is that Mr Roohizadegan’s note of the relevant conversation with Ms Gibbons refers not to the prospect of him taking legal action against TechnologyOne, but rather to the prospect that “if this continues” an option was that “I may press legal charges against her [Ms Marie Phillips]”.

908    Before returning to those propositions, it is worth summarising Mr Roohizadegan’s evidence as is necessary to give context to the reference in his note to Ms Phillips. In his evidence Mr Roohizadegan stated that he had told Ms Gibbons that Mr Harwood, Mr Sutching and Ms Phillips had bullied him by marginalising him, stopping him from attending meetings with clients and preventing him from doing his job (T184, lines 14-30). It is uncontentious (putting aside their justification or motivation) that some directions capable of such characterisation had been conveyed to him by Ms Phillips. It is also uncontentious that Ms Phillips then reported to Mr Sutching. Finally, it is uncontentious that Mr Phillips had earlier reported directly to Mr Harwood.

909    I now return to Dr Spry’s submissions. First, I reject that I am entitled to find that because Mr Roohizadegan did not follow up his verbal complaint to Ms Gibbons by making a more formal bullying complaint or commencing legal action before his termination I should conclude that he had not exercised his workplace rights in making that verbal complaint. Ms Gibbons was TechnologyOne’s HR business partner with responsibility for Victoria. Mr Roohizadegan’s evidence, which I accept, was that Ms Gibbons had conceded in their conversation that the conduct he had described to her was unacceptable.

910    That Mr Roohizadegan in fact did make a complaint of the nature he pleads at [18A] is wholly consistent with Ms Gibbons’ later email to Ms Carr, in which she noted that Mr Roohizadegan had told her he was considering a bullying complaint against Mr Sutching and was “considering legal action due to this”. That does not repeat all that, on Mr Roohizadegan’s evidence, he had said to Ms Gibbons. However, it does corroborate his account in respect of the nature of their conversation.

911    Second, I reject Dr Spry’s submission that Mr Roohizadegan’s more specific reference in his later note that he might “press legal charges” against Ms Phillips should be seen somehow as inconsistent with his having told Ms Gibbons that he was considering legal action against TechnologyOne. In the intertwined circumstances of their work relationships it is entirely unrealistic that any legal action against Ms Phillips, Mr Sutching or Mr Harwood in respect of their bullying could be separated from their roles within TechnologyOne.

912    I am therefore satisfied that I am entitled to find that Mr Roohizadegan did make the complaint he pleads he made at paragraph [18A] of his Further Amended Statement of Claim.

95    The learned primary judge next turned (at [913]) to the question “Who was the decision maker and when was the decision taken?”

Findings about who was the decision maker and when was the decision taken

96    At [913]-[966], the learned primary judge explained why in his view Mr Di Marco was the sole decision maker and that the decision was taken after 12 May 2016, not 26 April 2016, as the appellants had contended. His Honour’s findings about those questions are also now uncontroversial (putting the notice of contention to one side).

Findings about the critical disputed question

97    The learned primary judge then turned (at [967]) to the critical disputed question, which he formulated in these terms: “Do the respondents displace the statutory presumption that the adverse action they took against Mr Roohizadegan was for a prohibited reason?”

98    His Honour’s reasoning with respect to that critical question is as follows (at [969]-[994]):

967    … Section 360 [of the FW Act] relevantly makes clear that a person takes action for a particular reason if his or her reasons for the action include that reason. Where such a circumstance is alleged to have occurred, the statutory presumption in s 361 is engaged. The action of dismissing Mr Roohizadegan is therefore to be presumed to have been taken for the prohibited reasons he alleges unless the Respondents prove otherwise.

970    I thus turn to whether I should be satisfied that the Respondents have discharged their onus to displace the statutory presumption provided for in s 361 in respect of the seven complaints that Mr Roohizadegan pleads as being Mr Di Marco’s reasons, or being included within his reasons, for dismissing him.

971    In so articulating the task, I proceed on the basis of my finding that Mr Di Marco was the sole decision maker. My task is therefore to come to a view as to his state of mind, having regard to the whole of the evidence. For that reason I have taken care to at least summarise all the evidence the Court has received from the witnesses called by the respective parties, no matter how little light it might seem to cast on that subject. However, having undertaken that task I remain satisfied that much of that evidence is immaterial to the questions that I have to decide. That is because the objective reasonableness or otherwise of the reasons of which Mr Di Marco gave evidence as having motivated the decision to terminate Mr Roohizadegan is largely irrelevant.

972    In and of themselves, any conclusions that the Court draws as to what it might or might not consider to be objectively unjustifiable as a reason for termination cannot serve as a foundation for rejecting Mr Di Marco’s evidence as to his own state of mind. All that can be said if the Court draws conclusions that the reasons as to which Mr Di Marco gave evidence were objectively unsound is that the objective circumstances do not reveal or point to any additional positive factors that the Court should weigh in the balance when evaluating whether or not it should be satisfied that Mr Di Marco subjectively did act for the reasons for which, on his evidence, he decided to dismiss Mr Roohizadegan.

973    Dr Spry’s most fundamental submission is that I should accept that none of Mr Roohizadegan’s complaints in respect of his workplace rights were, or could have been, in Mr Di Marco’s mind when he made the termination decision on the basis of his evidence that he had made that decision on 25 April 2016: before he had become aware of any of them. I have earlier given my reasons for rejecting that proposition. I need not repeat them. It is sufficient that the reader recall that I have concluded that Mr Di Marco finally ceased temporising and made his decision only after the events of Thursday 12 May 2016.

974    I am satisfied that when Mr Di Marco made that decision, he had full knowledge of all seven of Mr Roohizadegan’s pleaded workplace complaints.

975    I have found that prior to his meeting with his Executive Team on 26 April 2016 Mr Di Marco was well aware of (a) Mr Roohizadegan’s earlier complaints about Mr Harwood; (b) the complaints Mr Roohizadegan had made to Ms Gibbons as were recorded in her email; and (c) the complaints Mr Roohizadegan had conveyed to Mr Di Marco by email later on 25 April 2016 about decisions being made behind his back.

976    I accept Dr Spry’s submission that Mr Di Marco may not have known at the time the Executive Team met that Mr Roohizadegan had also complained to Mr MacDonald about his having been bullied (paragraph [22] of his Further Amended Statement of Claim). However, Dr Spry’s closing submissions acknowledge that Mr Di Marco was informed of that additional complaint sometime that day (see at [3.64]).

977    I am satisfied that Mr Di Marco then became aware of Mr Roohizadegan’s three further complaints (as pleaded) and their seriousness almost immediately after their having been electronically communicated. Mr Roohizadegan emailed the first two of those further complaints (all of which related to aspects of Mr MacDonald’s alleged bullying conduct of 12 May 2016) to TechnologyOne on the morning of Friday 13 May 2016. One email was addressed to Mr Di Marco, and the other was addressed to Mr Chung. Given its significance, I am entitled to infer that Mr Chung would have acted swiftly to inform Mr Di Marco of the email that had been sent to him. Mr Roohizadegan emailed the third complaint to Mr Di Marco later on Sunday 15 May 2016.

978    Because of the weekend having intervened, I am entitled to find that Mr Di Marco received and read all three of those emails before he had had any opportunity either to make enquiries about what had happened or to solicit the advice of the other members of his executive as to what was to be done. It was via Mr Roohizadegan’s complaints that he learned about what had happened on the previous Thursday, and only after receiving those complaints did he take that opportunity. That is the import of his own evidence (T534, line 39-T535, line 3). I am therefore satisfied that he had full knowledge of their content before, on my findings, he committed himself to the decision to pull the trigger on Mr Roohizadegan’s termination.

979    It has been suggested in these proceedings that Ms Gibbons exaggerated what she reported being told by a number of the Victorian sales team of TechnologyOne in her email and oral report. Having reviewed the evidence, I am satisfied that that is the case. However, for the reasons I have explained that is irrelevant if I am satisfied that Mr Di Marco actually believed the truth of her account and later took the adverse action he ultimately did because of his holding that belief. Similarly, the Court might find (as it has) that Mr Di Marco did not have any objective basis on which to have concluded that Mr Roohizadegan was in the third of three years in which he was not going to produce growth for TechnologyOne. That however is also of no consequence if I accept his evidence that he had been told that, and believed what he had been told in that regard. Again similarly, it is immaterial that the Court might conclude (as it does on the basis of Mr Thompson’s evidence) that Mr Di Marco had no objectively sound basis on which to have held the belief that Mr Roohizadegan had been unable to work constructively with his three his most recent managers if the Court finds that he genuinely held that belief.

980    However, the objective documentary evidence and the evidence of other witnesses nonetheless may be highly significant if it goes either to corroborate or contradict an earlier conclusion in relation to Mr Di Marco’s credibility. Reviewing the evidence as a whole after it has been received may require such a finding to be revaluated. That is why any final assessment of a witness’s credit must be deferred to allow consideration of the evidence as a whole.

981    In that regard, my initial credibility finding as I have made above is that Mr Di Marco’s evidence as to his actual state of mind cannot be relied on as the truth. Mr Di Marco gave the evidence in respect of which I formed that adverse view at a relatively early point in this proceeding. At that time, the Court necessarily could not be astute to all of the detail of the evidence which might be later adduced.

982    However, having had regard to the evidence taken as a whole I am satisfied that critical aspects of what I have heard and read serve to confirm the correctness of that finding rather than to contradict it.

983    Thus Ms Gibbons gave evidence that at the meeting of the Executive Team on 26 May (sic – April) 2016 Mr Di Marco asked her to “reiterate what Peter [Sutching] had said in his email to Benham (sic)”. Her evidence-in-chief in that regard is entirely inconsistent with this Court accepting Mr Di Marco’s inherently improbable account that had not read or absorbed anything about Mr Roohizadegan’s bullying complaint as had been recorded by Ms Gibbons. To the contrary it reveals that Mr Di Marco was fully aware of, and acutely interested in knowing the scope and nature of, that bullying allegation.

99    His Honour then turns to certain evidence given by Mr Harwood, Mr Chung and Ms Carr, as follows:

984    Similarly, Mr Harwood’s acknowledgment in cross-examination that he had made a prior inconsistent statement to the effect that the decision to terminate Mr Roohizadegan was taken by Mr Di Marco at a later and smaller meeting attended by a limited number of key staff of TechnologyOne is not without significance. I have concluded that it is more probable than not that the actual decision was made later in time than Mr Harwood understood it to have been made. That, however, is not the critical point. Mr Harwood’s acknowledged prior inconsistent statement in his sworn affidavit is wholly inconsistent with my accepting Mr Di Marco’s already inherently improbable evidence (improbable in that it is uncontentious that he later proposed other solutions which would have retained Mr Roohizadegan as an employee of TechnologyOne) that he had come to a final decision that Mr Roohizadegan was to be dismissed on the evening of 25 April 2016.

985    I conclude likewise in respect of Mr Chung’s evidence-in-chief at [67] of his affidavit that as at 6 May 2016 Mr Di Marco had told him and other senior TechnologyOne staff attending that meeting that “we had not given [him] enough time to consider the termination plan and management of it. Therefore he was not yet ready to terminate [Mr Roohizadegan’s] employment”.

986    The next matter I mention is that Ms Carr later gave evidence as to the changes that Mr Di Marco had initiated in the course of the 6 May 2016 meeting to the communications plan she had been developing. Those changes not only substituted Mr Di Marco for Mr MacDonald as the person who was to effect Mr Roohizadegan’s termination. They also removed the references that Ms Carr had earlier included in the plan to the adverse focus group feedback. That latter circumstance suggests that whether or not Mr Di Marco had initiated that particular change, he was either already aware or was then made aware that Ms Gibbons’ email was not a reliable basis upon which he and TechnologyOne were entitled to proceed.

987    The same is even more starkly revealed by an aspect of Mr Chung’s evidence. At paragraph [69] of his affidavit Mr Chung deposes to the conversation he had with Mr Di Marco on 17 May 2016: the day immediately prior to Mr Roohizadegan’s termination. I have earlier discussed that aspect of Mr Chung’s evidence in another context. For present purposes however it is sufficient to note that on any view it reveals that on the very eve of Mr Roohizadegan’s dismissal Mr Di Marco had expressed concern as to whether dismissing Mr Roohizadegan without any solid evidence and on a purely hearsay basis was the right thing to do. I take that to have been a reflective observation by Mr Di Marco as to the reality of the situation: not, as Mr Chung suggests, a direction to him to investigate whether there was any such solid evidence. I am satisfied that at that point of time the die was set; Mr Roohizadegan was already on his way to attend his termination meeting, and there was no going back.

100    Having referred to what his Honour called “the frailty of that critical premise” being inconsistent with Mr Di Marco’s evidence that “he had been satisfied, without the need for any investigation, of the truth of what Ms Gibbons had reported” in the Carr email, his Honour continued (at [988]-[990]):

988    … It will be recalled that Mr Di Marco gave evidence of [the Carr] email being one of the worst emails he had received in 33 years of business, and that he referred to the email “just an atrocious, atrocious email and horrible”. I accept that that may be a fair description of that email, but not for the reason as to which Mr Di Marco gave evidence. It was horrible because Ms Gibbons had taken the liberty of exaggerating the import of what had been told to her. I am satisfied that the subsequent evidence of Ms Carr and Mr Chung reveals that by the time of his acting to dismiss Mr Roohizadegan, Mr Di Marco no longer had any actual belief in the truth of what Ms Carr had twice advised him were mere allegations.

989    A similar instance of an item of evidence emerging to reinforce my confidence in rejecting Mr Di Marco’s credit arose in the course of Mr Harwood giving evidence. Mr Harwood confirmed that he had prepared a formal report to TechnologyOne’s board (chaired by Mr Di Marco). In his report, Mr Harwood had expressed confidence that the deals that Mr Roohizadegan and his team were working to secure for the Victorian region (including the La Trobe deal) would be achieved for FY2016. By contrast, in his evidence-in-chief Mr Di Marco had initially boldly referred to TechnologyOne facing a “train smash” in Victoria (T538, line 33).

990    The additional circumstance that Mr Harwood reported formally to the board that he was confident that those deals would be secured confirms my scepticism with respect to the proposition that Mr Di Marco actually had any belief in a forthcoming “train smash”: whatever he might otherwise have been told. I reject as implausible that Mr Di Marco would not have read and understood the quite different import of Mr Harwood’s report to TechnologyOne’s board.

101    His Honour then concluded at [993] that he was “… wholly satisfied that the Court cannot accept Mr Di Marco’s evidence as to his state of mind in respect of the reasons for which he terminated Mr Roohizadegan” and that:

… [h]aving concluded that Mr Di Marco was aware of the complaints pleaded by Mr Roohizadegan when he finally resolved to take that action, I reject that I am entitled to find that he took the action he did for the reasons of which he gave evidence. I accordingly reject that his evidence can stand as proof (on the balance of probabilities) sufficient to displace the presumption provided for in s 361 of the Fair Work Act.

(Emphasis added.)

102    His Honour then added at [994] that “[t]aken as a whole, the other evidence in this proceeding equally does not compel me to infer (again on the balance of probabilities) that Mr Di Marco took the action he did for those reasons”.

103    His Honour then proceeded to consider what he called “an alternative path of reasoning”, but in circumstances where the learned primary judge said it was “hypothetical” reasoning (at [1004]), and where senior counsel on both sides agreed in the course of oral submissions that it was not necessary for us to deal with it, we will say no more about it.

Applicable legal principles

Courts must have regard to the whole of the evidence

104    The onus on the appellants of proving that none of the seven complaints alleged was a substantial and operative factor in terminating Mr Roohizadegan’s employment was “to be discharged on the balance of probabilities in the light of all the established evidence”. See Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 523 [62] (French CJ and Crennan J).

105    And as Bromberg J said in the context of an adverse action case in Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 at [116] (Mortimer and Anastassiou JJ agreeing):

True it is that the disbelief of the decision-maker as to the reason given for the taking of adverse action will ordinarily be a weighty consideration and often a determinative consideration as to whether a reason asserted by an applicant is a substantial and operative reason for adverse action. However, neither that observation nor the s 361 statutory presumption itself, relieves a court of the need to make all of the necessary inquiries and consider all of the evidence probative of whether the reason asserted has been negated by that evidence. Whilst the statutory presumption casts an onus on the respondent to satisfy the court on the evidence before it that the asserted reason has been negated, it does not require that finding to be based solely on the evidence of the decision-maker or to be based solely on the evidence called or otherwise put before the court by a respondent.

106    And, as Bromberg J also said at [113], in a case where there is “evidence of a broad range of facts and circumstances, beyond the reliability of [the employer’s] evidence about [their] asserted reason for the dismissal” such facts and circumstances need “to be taken into account in assessing whether the … complaint[s] [were] a substantial and operative reason for the dismissal”.

Courts must give adequate reasons

107    The principles in relation to the obligation of courts to provide adequate reasons were also not disputed.

108    A trial judge’s reasons must “as a minimum ... be adequate for the exercise of a facility of appeal”. See Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 260 (Kirby P), 268-269 (Mahoney JA) (Soulemezis); Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 444 (Meagher JA) (Beale). Failure sufficiently to expose a path of reasoning is an error of law. See Soulemezis at 280 (McHugh JA).

109    A judge is not obliged to spell out every detail of the process of reasoning to a finding, but it is essential that he or she expose the reasons for resolving a point critical to the contest between the parties. See Soulemezis at 259 (Kirby P), 270 (Mahoney JA), 280 (McHugh JA).

110    The reasons must do justice to the issues posed by the parties’ cases. See Moylan v Nutrasweet Co [2000] NSWCA 337 at [61] (Sheller JA, Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments have been understood and accepted. See Soulemezis at 279 (McHugh JA). And it is also necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”. See Jones v Bradley [2003] NSWCA 81 at [129] (Santow JA, Meagher and Beazley JJA agreeing).

111    As Samuels JA said in Mifsud v Campbell (1991) 21 NSWLR 725 at 728, “... failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only disappointed but disturbed” (internal quotations omitted). And as Basten JA said in Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165; 243 LGERA 102 at 111 [7]:

7    Because there is no means of interrogating a judge as to his or her intellectual processes, evidence that issues were not addressed can usually only be demonstrated by reference to the reasons. Thus, on the assumption that the judge addressed in the reasons all material matters, the absence of reference to a particular matter may allow the inference that it was not addressed and determined (citing Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [129]-[130] (Hayne J).

112    Further, “[w]here conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.” See Beale at 443 (per Meagher JA).

113    Finally, “bald findings on credit, where there remain substantial factual issues to be dealt with, may not constitute an adequate compliance with the judge’s common law duty to provide the parties, and the appellate court, with the basis of his decision”. See Palmer v Clarke (1989) 19 NSWLR 158 at 170 (Kirby P, Samuels JA agreeing).

Why there must be a new trial of the adverse action claim

The seven complaints

114    Mr Di Marco swore that the complaints in question were “totally irrelevant” to his decision to terminate Mr Roohizadegan’s employment. As the cases referred to above make clear, it was necessary, as an essential part of determining the factual question whether the appellants had displaced the statutory presumption, for the learned primary judge to assess the whole of the evidence reasonably capable of bearing on that question, and, among other things, to consider the significance to Mr Di Marco of the seven complaints. That task necessarily required an examination of the nature and context of the complaints themselves.

115    With great respect to the learned primary judge, he did not do so. Instead, his Honour arrived at the conclusion that the making of the complaints was Mr Di Marco’s reason for the termination of his employment because he knew that Mr Roohizadegan had made the complaints. So much, with respect, is apparent from the critical passage in the Reasons (at [993]) where his Honour finds that “[h]aving concluded that Mr Di Marco was aware of the complaints pleaded by Mr Roohizadegan when he finally resolved to [terminate his employment], I reject that I am entitled to find that he took the action he did for the reasons of which he gave evidence … [and] accordingly reject that his evidence can stand as proof (on the balance of probabilities) sufficient to displace the presumption provided for in s 361 of the Fair Work Act”. (See also [974]-[979] of the Reasons where his Honour makes specific findings about Mr Di Marco’s knowledge of each of the complaints.)

116    There is, with great respect, an essential integer missing from that critical passage of reasoning, namely, consideration of the primary factual question for determination under s 340(1) of the FW Act – whether one or more of the seven complaints was or were a substantial and operative factor in Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment (or, to put it generically, whether adverse action had been taken because of a proscribed reason). Compare Tattsbet v Morrow (2015) 233 FCR 46 at 75 [119] (Jessup J, Allsop CJ and White J agreeing); Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at 380 [100] (Tracey, Reeves and Bromwich JJ); Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 523-524 [62] and [65] (French CJ and Crennan J).

117    With great respect to the learned primary judge, his Honour was required to consider that question, including by reference to the nature of the complaints and the circumstances in which they were made, before it was open to him to have concluded that the appellants had failed to rebut the statutory presumption that arose under s 360.

118    It is true that his Honour said (at [994]) that “[t]aken as a whole, the other evidence in this proceeding equally does not compel me to infer (again on the balance of probabilities) that Mr Di Marco took the action he did for those reasons”, but in circumstances where his Honour does not identify the evidence that he had in mind, that broad brush finding is of no avail on appeal.

119    It is, of course, also the case that his Honour described or referred to each of the seven pleaded complaints that Mr Roohizadegan made which he said comprised the prohibited reasons that his employment was terminated (see, eg, at [47], [52], [898], [902]). His Honour also referred to some of the detail of the complaints in that part of the Reasons dealing with whether they were made. But at no point when addressing the question whether the appellants had displaced the statutory presumption did the learned judge set out or consider the nature of any of the complaints and the circumstances in which each of them was made. His Honour did note (at [903]) Dr Spry’s contention “that … the context of those complaints demonstrate that they did not play any part in Mr Di Marco’s decision making”, and said that he would return to the point in due course, but did not do so. (We note, parenthetically, that counsel for Mr Roohizadegan did not, with great respect, provide the learned primary judge with much assistance in addressing the question of the nature of the complaints and the circumstances in which they were made. In their closing written submissions at trial, counsel for Mr Roohizadegan dealt with the substance of the seven complaints in three pages. The substance and detail of the complaints was a matter largely consigned to footnote references to the transcript or documents contained in the court book. And in the course of closing address, counsel for Mr Roohizadegan said that he would not take the primary judge to that part of the written submissions “in the interests of time”.)

120    It is not the court’s function in an appeal such as this to make our own findings of fact. Compare Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 1836 [133] (Hayne J) (“The defect in the primary judge’s fact finding lay in the failure to evaluate all of the evidence bearing upon the relevant issue of fact. The Court of Appeal could not substitute its finding when that too was based on only part of the material which ought properly to have been considered by the primary judge”). See too Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 at 204, [118]-[119] (Ipp JA, Mason P and Tobias JA agreeing) (where fundamental errors in the trial judge’s process of fact-finding in not examining all of the material did not entitle the court to make any factual findings of its own).

121    Because the learned judge failed to evaluate the nature of the complaints and the circumstances in which they were made and the process of fact finding thus miscarried, there must be a new trial of the adverse action claim so that such an evaluation can be carried out. Compare Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 1835-1836 [130]-[132] (Hayne J).

No declarations sought or made

122    Before turning to the next principal ground of appeal, it is desirable that we say something about the fact that no declarations of contravention of the FW Act were made. As we mentioned earlier, although counsel for Mr Roohizadegan said at trial that they sought the making of such declarations of contravention, they did not proffer any form of declaration for his Honour’s consideration and his Honour, unsurprisingly perhaps in that circumstance, did not grant any declaratory relief. It seems to us that, in a case such as this, where by the time of closing address the applicant had jettisoned all but ten of the 96 pleaded forms of adverse action, it would, with respect, have been preferable for counsel to have turned their minds to an appropriate form of declaratory relief in order to assist in identifying the precise conduct ultimately said to constitute adverse action – all the more so when that conduct was the basis of Mr Di Marco’s accessorial liability and the penalties ordered. Compare Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 at 92 [95] (“there is some utility … in making the declarations [because] [t]he degree to which the Commission succeeded has changed from stage to stage of these proceedings, and it is convenient to have set out in the declarations not only the basis for the primary liability and accessorial liability found, but also the basis for the penalties ordered …”). As to the need to make a declaration of contravention as the basis for the imposition of a penalty, see also Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378 at 388 [35] (Greenwood, Logan and Yates JJ).

Consideration of Mr Di Marco’s reasons and contemporaneous evidence

123    It will be recalled that Mr Di Marco gave evidence that he acted for three (non-prohibited) reasons, which may be summarised as follows:

(a)    Mr Roohizadegan’s poor recent performance with respect to licence fees;

(b)    the poor culture within the team managed by Mr Roohizadegan (the “team in crisis” reason); and

(c)    Mr Roohizadegan’s poor relationships with his direct managers (Messrs Harwood, Thompson and MacDonald).

124    And he denied that he had acted for the prohibited reasons (being the seven complaints) contended for by Mr Roohizadegan.

125    As we have explained above, it was incumbent upon the learned primary judge to have regard to the whole of the evidence, including critically for present purposes the objective, contemporaneous evidence upon which the appellants relied to prove on the balance of probabilities that none of the seven relevant complaints was a substantial and operative reason for the decision taken by Mr Di Marco to terminate Mr Roohizadegan’s employment.

126    Senior counsel for Mr Roohizadegan submitted that the learned primary judge “did take [objective reasonableness] into account … repeatedly, every time he made an adverse finding against Mr Di Marco, he did it by reference to circumstances including what his subordinates had told him, what was in documents before him, and what the state of affairs was concerning the shunting of our client towards an unheralded termination”.

127    We cannot accept that submission. In our view, that is, with great respect, precisely what the learned primary judge did not do, as we shall explain.

128    It seems to us that his Honour’s observations (at [171]) that “the objective reasonableness or otherwise of the reasons of which Mr Di Marco gave evidence as having motivated the decision to terminate Mr Roohizadegan is largely irrelevant” and (at [172]) that “any conclusions that the Court draws as to what it might or might not consider to be objectively unjustifiable as a reason for termination cannot serve as a foundation for rejecting Mr Di Marco’s evidence as to his own state of mind” may be read as misconceiving the obligation to have regard to the whole of the evidence, including the objective, contemporaneous evidence relied upon by TechnologyOne and Mr Di Marco. In any event, whether or not the learned primary judge misconceived that obligation, we are satisfied, for reasons explained below, that his Honour erred by failing to have any regard, or any sufficient regard, to a volume of contemporaneous documentation that on its face was consistent with Mr Di Marco’s explanation of the true reasons for the termination of Mr Roohizadegan’s employment. That is another independent reason necessitating a retrial of the adverse action claim, because the process of fact finding miscarried.

129    Before turning to deal with that evidence, we should mention an issue that occupied a not inconsiderable amount of time at the hearing of the appeal. As we noted earlier, the trial was conducted on the agreed basis that “unless a document [was] specifically referred to by counsel for its relevance and import … the court [would] not take it into account in reaching its decision”. During the hearing of the appeal there was debate about whether a number of documents cited in overly voluminous footnotes to the appellants’ written reply submissions were in evidence according to that protocol.

130    The parties, by direction, filed a joint note after the hearing of the appeal was completed about where and for what purposes a large number of documents cited by the appellants in those footnotes were or were not referred to at the trial. However, the appeal is to be resolved in the appellants’ favour without the need for reference to the note.

131    We turn now to the detail of the evidence adduced at trial and relied upon by the appellants below and on this appeal with respect to each the three reasons relied on by Mr Di Marco as the reasons he decided to terminate Mr Roohizadegan’s employment. As will become apparent, although some of that evidence is referred to or mentioned at various different points in the Reasons, including in the chronology, very little, if any, of it was taken into account or considered by the learned primary judge in determining whether the reasons for dismissal asserted by Mr Roohizadegan had been negated. We take each asserted reason for termination in turn, as follows.

First reason for termination: Mr Roohizadegan’s poor recent performance with respect to licence fees

132    The first document relied upon by the appellants at trial about Mr Roohizadegan’s poor recent performance with respect to licence fees was an email sent by Mr Harwood to Mr Roohizadegan on 12 January 2016 at 1:43 pm with the subject line “Victoria Forecast”, which was forwarded to Mr Di Marco later that day as an attachment to Mr Roohizadegan’s reply. The email explained to Mr Di Marco that there were significant problems in the financial performance for 2016 – in particular, that the forecast position as at 31 March included a 35% reduction (or $2.2 million) in licence revenue compared to the same time the previous year; that there was $7.25 million “in the forecast that has no name to it”; and that the forecast shortfall was something that “we need to address … urgently”.

133    This document was mentioned by the learned primary judge in the chronology and at [114] and [216] of the Reasons, but not by reference to any part of it that was consistent with Mr Di Marco’s explanation of the true reasons for the termination of Mr Roohizadegan’s employment.

134    The mention of it at [114] is only in the context of Mr Roohizadegan’s response, including his view that Victoria had not “gone backwards” for three years as Mr Harwood claimed, as follows:

114    It was in that context that Mr Roohizadegan then gave evidence that when Mr Harwood sent him an email on 12 January 2016 stating that “Victoria cannot go backwards for a fourth year in a row”, he had rejected that assertion in a long email which he had copied to Mr Di Marco (Ex R33). Mr Roohizadegan’s evidence is that he felt offended by Mr Harwood’s accusation (T304, lines 14-26). His evidence is that Mr Harwood was factually wrong to have claimed that the Victorian region had gone backwards (even if that statement were understood as applying only to new licence fees) for the past three years. He arranged to meet Mr Di Marco on 3 February 2016 to correct the record, and to complain about Mr Harwood undermining him.

135    The mention of it at [216] is also in the context of the “three years” or “fourth year in a row” point, where his Honour records Mr Di Marco’s evidence that Mr Harwood was correct to say that “Victoria cannot go backwards for a fourth year in a row”, as follows:

216    Mr Tracey put to Mr Di Marco that when on 12 January 2016 Mr Harwood had said that “Victoria cannot go backwards for a fourth year in a row”, Mr Di Marco must have been aware that it was not in fact the case that Victoria had gone backwards (T546). Mr Di Marco’s evidence was that he disagreed that Mr Harwood’s assessment had been wrong (T546).

136    The second document relied upon by the appellants at trial about Mr Roohizadegan’s poor recent performance with respect to licence fees was an email sent by Mr Harwood to Mr Roohizadegan (copied to Mr Di Marco) on 13 January 2016 at 5:41 pm, with the subject line “Re: Victoria Forecast”, in these terms:

Hi Behnam,

Let's get together when you are recovered and back at work to discuss. I don't think exchanging emails is as effective as a way of communication and it is probably not a good idea you sitting in front of a keyboard right now.

All I want is for Victoria (and every other region), to have continued success and growth.

Just to establish a framework to discuss how we can get Victoria growing it's Licence Revenue again, I think It is worth looking at how the region has gone over the past few years:

•    This year Half Year Forecast is Licence Revenue of $4,049,000 compared to $6,261,000 in the first half last year

•    Total Forecast for Existing Customer business for the second half is only $260,000 all up

•    There are named deals for only $4,700,00 for the full year and we are already in Q2

•    Last Year FY 2015 we sold Licence Revenue amounting to $9,001,077

•    Prior Year FY 2014 we sold Licence Revenue amounting to $10,060,314

•    Prior Year FY 2013 we sold Licence Revenue amounting to $10,179,519

So the business has sold progressively less licence revenue for the past few years and it appears that there is a problem in front of us for this year.

I hope you see why I am concerned, but as I said, this stuff can wait until you are feeling better and we can get together to figure out how we fix the problem.

Regards

Martin

137    The last paragraph of this email (“this stuff can wait until you are feeling better …”) was mentioned in the chronology, but the substance of it, including the detailed breakdown of licence revenue figures for the three preceding years and the shortfall in the year to date numbers is not otherwise mentioned, or dealt with.

138    The third document relied upon by the appellants at trial about Mr Roohizadegan’s poor recent performance with respect to licence fees was an email from Mr Harwood to Mr Di Marco on 20 January 2016 at 9:50 pm, with the subject line “Re: Victoria Forecast”. In it, the revenue figures and the bleak sales forecast are repeated. Mr Harwood said of Mr Roohizadegan that he “takes no personal ownership – it is all somebody else’s problem”; that he had “lost his mojo somewhere along the way over the recent few years”; and that “if I can't fix it, then he will have to go”. The email in full read:

Behnam and I have talked about this on several occasions. Just to frame the context of the issue:

Qld, NSW & Vic deliver 65% of licence revenue

Vic has not grown in 3 years, in fact it went 11% backwards last year

The forecast for Vic for the first half of this year is between 3 and 4million

Last year they did that $6.2 million in the first half - so this year we could be down up to 50%

So every other region has to kick in over the odds to make our growth numbers while Victoria is either standing still or going backwards - I can't let that happen

Behnam takes no personal ownership - it is all somebody else's problem

I have worked to find the right Sales Manager who can work with Behnam full time to turn this around fast and make sure Victoria delivers what we need this year - I found the guy and he will start soon.

Behnam is excited about having him rather than looking over his shoulder worrying about if I am about to fire him, so I believe this combination can work and solve the problem

I need to keep the pressure on Behnam to deliver, he has lost his mojo somewhere along the way over the recent few years. I want to make it work rather than fire him after 9 years in the role, but if I can't fix it, then he will have to go, but I think we can fix the issue if we all work together.

139    This email is included in the chronology, and at [198], where the learned primary judge records a passage from Mr Di Marco’s evidence-in-chief in which it is referred to. Reference to it is also made in a quote from the appellants’ written submissions at trial in the context of the consideration of Mr Harwood’s credibility (at [289]), but not otherwise. The passage at [198], which includes Mr Di Marco’s testimony about TechnologyOne’s aim to ensure a 10-15% annual increase in licence revenue sales, is as follows:

198    Mr Di Marco then expanded on his evidence that Mr Roohizadegan had inappropriately “pushed back”. Dr Spry referred him to an email (Ex R33) that Mr Roohizadegan had sent to Mr Harwood (into which Mr Di Marco had been copied), in which he had disputed Mr Harwood’s observation that Victoria could not “go backwards for a fourth year in a row”:

…

Dr Spry:    Yes. So … So, yes, so having considered that email, and you were saying this is one of the ones that you were concerned about, about Mr Roohizadegan pushing back. Is there anything in that email that stood out to you as doing that?

Mr Di Marco:    Well, it’s just there’s so much information there, isn’t there? So much, just, you know, getting in the way of what the issue is. The issue is that the forecast shows that we’ve got a problem, and Behnam is not accepting that and is not putting into place anything to fix it and taking responsibility to fix it. You know, there are other emails where he actually blames his 2IC, which is Metcalf, for the problem, which is unacceptable, you know? He’s the regional manager. He’s responsible for the forecast, you know? The regional manager who flies up to Brisbane and presents to me every deal, it’s him. It’s not his 2IC. He has to tell me every deal they’re going to close. And it’s the regional manager who I talk to every week about how those deals are progressing, not the 2IC. The regional manager is accountable. So there’s no accountability being taken about the problem, and not even accepting there’s a problem either, which is the main thing. And not even accepting the fact there has been a problem in the prior year. I mean, the statistics are there. The licence fees have not grown for a number of years. And he’s not even accepting that, right? So he’s not accepting what is hard concrete data. He’s pushing back. “Everything is basically fine in Victoria”, you know what I mean?

Dr Spry:    Now …?

Mr Di Marco:    He says, “I overachieved the sales budget during the last four years.” You know, it’s just divorced from reality. I mean, you know, he had not overachieved. It’s a drag on the business. It has not achieved the 10 to 15 per cent licence fee growth we need.

Dr Spry:    Now, we …?

Mr Di Marco:    I don’t know how to make head nor tails of that behaviour. I mean, that’s where it starts. I’m seeing this really bad behaviour. If he had come back and said, “Look, we have a problem. We need to work to fix it. This is what we’re going to do,” that would be fine.

140    We should interpolate that the learned primary judge accepted that the overall business target was to grow the TechnologyOne’s licence fees by 10-15% each year and that to achieve that level of growth, each of the major regions (Queensland, New South Wales and Victoria) needed to increase their share of growth accordingly. See Reasons at [197] (see [84] above) and [269].

141    The fourth document relied upon by the appellants at trial about Mr Roohizadegan’s poor recent performance with respect to licence fees was a board paper prepared by Mr Harwood entitled “Operating Report: Sales & Marketing – Board Meeting 13th May 2016”. The paper noted that the “second half [of the 2016 financial year] will be much stronger than the first half” and lists the “major deals” planned. The deals listed have a total value of $6,115,000, including those with La Trobe University ($2,800,000) and Bass Coast Shire Council ($535,000). The paper noted: “The major risk I need to manage in Victoria for the second half is the size of the supporting pipeline. We feel confident about most of the deals above but the poor supporting pipeline must be addressed quickly to ensure we have adequate cover if any of these deals fail to close”.

142    This document was referred to by the learned primary judge at [272], where he records Mr Harwood’s evidence about it, as follows:

272    Mr Harwood gave evidence that he had suggested strategies to improve Victoria’s sales performance to Mr Roohizadegan which the latter had resisted implementing (CB474, paragraphs [8]-[9]). Later, he had expressed his concerns in a report to TechnologyOne’s board:

11.    I also raised my concerns about the performance of the Victorian region with the Board. I prepared the Board Report for the Board meeting on 13 May 2016 in which I raised my concerns about the size of the supporting pipeline. Supporting pipeline in this context meant licence fee sales forecasted for the Victorian region. Attached and marked ‘MH-2’ is an extract of the Board Report that I prepared in April 2016 for the Board meeting on 13 May 2016. The relevant part of this Board Report was:

‘The major risk I need to manage in Victoria for the second half is the size of the supporting pipeline. We feel confident about most of the deals above but the poor supporting pipeline must be addressed quickly to ensure we have adequate cover should any of these fail to close.’

143    It is also referred to at [292], where his Honour sets out a passage from Mr Harwood’s cross-examination and at [322], where his Honour expresses his conclusion in relation to Mr Harwood’s credit. It is also referred to at [766] (where Mr Chung’s evidence about his recollection of the board report is quoted). It is also referred to at [989]-[990], which are set out at [100] above, and which deal with Mr Harwood’s evidence about his board report and Mr Di Marco’s credit.

144    There is an additional difficulty with the findings at [989]-[990] of the Reasons, because, as the appellants correctly submitted, Mr Harwood’s board paper was never put to Mr Di Marco in cross-examination. It was, for that reason alone, not open to the learned primary judge to make the adverse findings against Mr Di Marco founded on his supposed understanding of it.

Second reason for termination: Mr Roohizadegan’s team was a “team in crisis”

145    The first document relied upon by the appellants at trial about Mr Roohizadegan’s “team in crisis” was the Carr email (see [84] above).

146    The learned primary judge set out the text of the Carr email in the context of dealing with the evidence of Ms Gibbons (at [706]), and he refers to the email forwarding it to Mr Di Marco in the chronology.

147    The Carr email chain commences with an email from Ms Gibbons to Ms Carr dated 24 April 2016 at 5:51 pm. Ms Carr then forwarded the email to Mr Di Marco on 25 April 2016 at 10:40 am, together with her own email. Mr Di Marco received it and responded to Ms Carr and others the same day at 11:18 am.

148    Ms Gibbons’ email to Ms Carr, and forwarded to Mr Di Marco, includes the following expressions of concern about Mr Roohizadegan and the Melbourne office:

•    There is a real cultural issue within the office, which mainly comes down to them being in fear of their jobs.

•    Shane [Cagney] was in tears talking to me as he has is regularly threatened with his job.

•    Whilst speaking to Patrick Conron it was clear he was displaying signs of anxiety. He told me he is often belittled by [Mr Roohizadegan] usually in a public forum some of which is verbally, some of which is on email.

•    [Simon Dugina] requested that we catch up but not in the office (he did not want [Mr Roohizadegan] to see him speaking to me). He told me that he the reason he has not engaged previously is because the best way to ‘survive’ in the Melbourne office is to keep ‘your head, down’. However, he felt the situation in the office has become untenable and that he needed to say something.

•    [Simon Dugina] said we are a great company, have a fantastic office and we produce great products but he struggles to be proud of working for us when we appear to allow such a culture of fear, intimidation, bullying and passive aggressive behaviour. He asked me outright whether we as an organisation think it was acceptable to know about [Mr Roohizadegan’s] behaviour and do nothing about it?

•    The feeling is that [Mr Roohizadegan] undermines Boris [Ivancic] [a then new Sales Manager] at every opportunity.

•    My perception is that [Boris] is a very real flight risk if nothing is resolved in the office.

•    Whilst in conversation with [Mr Roohizadegan], it was clear that he did not have a desire for any of [his] team to be successful, excluding Amit.

•    It was clear why the team felt intimidated and within fear of their roles.

•    [Mr Roohizadegan] also told me he is considering a bullying claim against Peter Suchting in reference to a comment in an email that stated he was ‘over this behaviour’. He told me he was considering legal action due to this.

•    Most of the sales team are a flight risk.

149    Ms Carr then forwarded that email to Mr Di Marco, with the following:

Hi Adrian

See below an [sic] from one of my team about her experience in the Victorian office this past week.

It seems that Behnam’s behaviour has escalated with staff now openly telling HR about systematic bullying. We have had some comments in the past as you know but not to this extent. There are people now speaking up who have never done so in the past.

Can we please catch up tomorrow to discuss?

Thanks

Kathy

(Emphasis added.)

150    Mr Di Marco responded agreeing that he and Ms Carr, together with Mr MacDonald, would talk the next morning.

151    The email chain was referred to by the learned primary judge in the chronology, in passing at [128], [193], [199] and [278], and at [226]-[227] of the Reasons, where his Honour notes its importance to the appellants’ case (but does not otherwise refer to or deal with it in the Reasons), as follows:

226    As I have earlier identified, of significance in these proceedings on the Respondents’ case is the email sent by Ms Gibbons to Ms Carr which she in turn she forwarded to Mr Di Marco. Ms Gibbons’ email reported a number of allegations made by some staff members about Mr Roohizadegan’s management of the Victorian Office (Ex R58, CB5596-5597). Mr Di Marco received a copy of that email on 25 April 2016. His evidence in examination-in-chief was that he had been ‘flabbergasted’ by its contents (T518). It was, he gave evidence, ‘one of the worst emails I’ve received in 33 years of being in business. I mean, it’s just an atrocious, atrocious email and horrible’ (T501, lines 20-22). His evidence was that he had acted upon the content of that email as a basis for terminating the employment of Mr Roohizadegan (T519).

227    Mr Di Marco gave evidence that he made the decision to terminate Mr Roohizadegan’s employment on his receipt of that email on 25 April 2016 (T523). He had communicated his decision to the members of TechnologyOne’s Executive Team at a meeting that had been convened to discuss the subject of that email the following day.

152    The second document relied upon by the appellants at trial about Mr Roohizadegan’s “team in crisis” was an email sent by Mr Di Marco to Messrs Harwood and Roohizadegan and to Ms Carr dated 26 June 2015, in which Mr Di Marco said: “Guys … this revolving door in Vic has got to stop. It is now at a point where I have recruiters telling me they will not put good sales staff up to us in Vic”.

153    The “revolving door” email was referred to in the chronology and then at [113], where the primary judge records the substance of it and Mr Roohizadegan’s understanding of it in these terms:

113    On 26 June 2015 Mr Di Marco informed Mr Roohizadegan and Mr Harwood that he had “recruiters telling [him] they will not put good sales staff to us in Victoria”. Mr Roohizadegan’s evidence is that he understood Mr Di Marco to have associated that difficulty with Mr Harwood having recently terminated Mr Tsalkos and Mr Loler (T321). In an email, Mr Di Marco instructed Mr Harwood and Mr Roohizadegan “the revolving door has to stop”. He told Mr Harwood that he was holding him accountable in that regard (Ex R13, CB4304).

154    The “revolving door” email is also referred to at [305], where his Honour notes as follows:

305     Prior to the disputed events of 2016, it is uncontentious that in September 2015 Mr Harwood had directed Ms Carr to draw up a script for Mr Roohizadegan’s dismissal. He did so shortly after he had been told by Mr Di Marco that he was to be held accountable to end the ‘revolving door’ of staff in Victoria. What had prompted Mr Di Marco’s intervention on that occasion was that Mr Roohizadegan had complained to him that Mr Harwood had sacked two members of his sales team without having given either of them any opportunity to improve their performance.

Third reason for termination: Mr Roohizadegan’s poor relationships with his direct managers

155    The first document relied upon by the appellants at trial about Mr Roohizadegan’s poor relationship with his direct managers was a chain of email correspondence dated between 15 April and 1 May 2014 concerning feedback from Victorian customers and Mr Roohizadegan’s performance review. In emails to Mr Thompson and Ms Rebecca Gibbons, Mr Roohizadegan expresses his dissatisfaction with Mr Thompson’s assessment of his performance, particularly with respect to customer relations. The final email in the chain, sent by Mr Roohizadegan to Mr Di Marco (with Mr Thompson and Ms Gibbons copied) at 11:55 am on 1 May 2014, describes the agreement ultimately reached between Mr Roohizadegan and Mr Thompson regarding the former’s performance review. These emails were specifically referred to by counsel for the appellants in submissions, but the primary judge did not mention them.

156    The second document relied upon by the appellants about Mr Roohizadegan’s poor relationship with his direct managers was an email sent by Mr Roohizadegan to Mr Thompson on 30 July 2014 at 11:53 pm, and Mr Thompson’s response sent on 31 July 2014 at 7:03 am with the subject line “Vic Forecast today 29 07 2014”. Mr Roohizadegan said that he would be “reviewing and adjusting [his] forecast for August and September so that [Mr Thompson and Mr Edward Chung] do not get disappointed”. He said that he brought deals forward from July to June at his “own time and family time expense for the benefit of TechnologyOne”, that “[t]his is something that is not fair on [him] anymore” and that his “18 to 20 working hour days is impacting [his] physical health”. In his response, Mr Thompson offers assistance but states that the “forecast is already committed” and that he is “reliant on [Mr Roohizadegan and his team] to continue to deliver”. This email was specifically referred to by Dr Spry during his cross-examination of Mr MacDonald, and the primary judge included an extract from Mr Thompson’s evidence in chief which related to the email at [446].

157    The third document relied upon by the appellants at trial about Mr Roohizadegan’s poor relationship with his direct managers was an email sent by Mr Thompson to Mr Di Marco on 1 August 2014 at 11:57 am, in which he said, among other things, that Mr Thompson had “provided appropriate coaching” to Mr Roohizadegan but “[u]nfortunately [Mr Roohizadegan] took it out on the source”, and that Mr Roohizadegan “has NEVER had a $2.5m number imposed on him for Q4 and the forecast he committed for Q4 is HIS forecast and NOT [coerced] or forced by me”. This email was specifically referred to by Dr Spry during his cross-examination of Mr Thompson, but the primary judge did not mention it.

158    The fourth document relied upon by the appellants at trial about Mr Roohizadegan’s poor relationship with his direct managers was a chain of email correspondence commencing with an email sent by Mr Roohizadegan to Mr Richard Metcalfe the Regional Sales Manager for Victoria on 18 June 2015 at 9:28 pm. Mr Roohizadegan said that he “cannot run my region in parallel with a fifth column”. This comment causes Mr Harwood to take offence – he describes the comment as “ridiculous” and said that he “will not tolerate [Mr Roohizadegan] insinuating” that he is “somehow involved in some plot to undermine [him]”. The final email was sent by Mr Di Marco to Messrs Roohizadegan and Harwood on 19 June 2015 at 10:32 pm, in these terms: “Let’s stop with the emails, and get in a room and sort it out, as this is escalating needlessly. Whatever mistakes have been made by whom, [let’s] work it through and put it behind us. Mistakes happen”.

159    These emails were referred to in the chronology and in the context of setting out Mr Roohizadegan’s evidence at [111]-[112] and [155], as follows:

111    Mr Roohizadegan’s evidence is that he sent an email to Mr Metcalfe, cc’ing Mr Di Marco, questioning why he and Mr Harwood had made the decision to terminate Mr Tsalkos on particular terms. He complained in his email that the decision to dismiss them had been taken without his involvement. He complained that he ‘cannot run [his] region in parallel with a fifth column’ (Ex R12, CB4274-4275).

112    It is uncontentious that Mr Di Marco told Mr Roohizadegan and Mr Harwood to ‘sort it out, as this is escalating needlessly’ and that ‘mistakes happen’ (Ex R12, CB4266).

…

155    Finally I note that in response to questions asked of him in cross-examination by Dr Spry to the effect that he was prepared to impute malicious intent inter-alia to Mr Harwood and Mr MacDonald without any basis in respect of their conduct towards him (describing them as a ‘fifth column’ working against him), Mr Roohizadegan’s evidence was that shortly before he was dismissed Mr Phare (his original direct report) had told him he had made enemies of Mr Harwood and Mr MacDonald because Mr Di Marco had taken his side rather than theirs on some earlier occasions (T382, lines 8-15 and lines 34-40). Otherwise, but subject to the discussion below at [176]-[181], I identify nothing of significance in Mr Roohizadegan’s responses in cross-examination that would add to the picture to which I have referred above.

160    They are also mentioned at [275], in the context of setting out Mr Harwood’s evidence; at [306], in the context of considering Mr Harwood’s evidence; at [553], [568] and [569], in the context of considering Mr Metcalfe’s evidence; and at [867], in the context of considering expert medical evidence, but not otherwise, and in particular, not in any part of the Reasons that dealt with Mr Di Marco’s evidence.

161    The fifth document relied upon by the appellants at trial about Mr Roohizadegan’s poor relationship with his direct managers was an email sent by Mr Roohizadegan to Mr MacDonald, copying Mr Di Marco, on 13 April 2016 at 1:29 pm. The email recorded that Mr Roohizadegan had just had a “frank conversation” in which Mr MacDonald instructed him not to attend certain meetings with the Bass Coast Shire Council. Mr Roohizadegan stated that his non-attendance at the meetings “totally undermines [his] leadership for [his] region”, and that he is “very sorry that [Mr MacDonald has] been put into this situation in [his] 3rd day in the job”. He says that, out of respect for Mr MacDonald’s position, he will accept the instruction and cancel his accommodation. He also says that he welcomes the opportunity to meet Mr MacDonald in person because he is “confident that upon our dialogue [Mr MacDonald] will gain the grasp where [he] is coming from”. This document, to which the appellants referred in their closing submissions at trial, was referred to in the chronology and in an extract from Mr MacDonald’s affidavit evidence at [335], but not otherwise.

162    The sixth document relied upon by the appellants at trial about Mr Roohizadegan’s poor relationship with his direct managers was an email sent by Mr Roohizadegan to Mr Di Marco on 25 April 2016 at 11:49 pm, which forwarded earlier correspondence between Mr Roohizadegan and Mr MacDonald concerning a dinner with representatives of the University of Melbourne.

163    In that earlier correspondence, Mr MacDonald had said to Mr Roohizadegan “I would prefer in the future we follow my direction”, and Mr Roohizadegan had said in response, among other things, that he felt he was “being bullied” by Ms Marie Philips and Mr Peter Sutching (see complaint 3 at [44]-[46] above). In the covering email to Mr Di Marco (see complaint 4 at [47]-[49] above), Mr Roohizadegan forwards that correspondence and says that he is “really confused” and that “decisions are being made for [his] region behind [his] back”.

164    This document was referred to in the chronology and in the context of setting out Mr Roohizadegan’s evidence at [129]-[130], as follows:

129    Mr Roohizadegan’s evidence is that at 9.15pm on 25 April 2016 he then sent an email to Mr MacDonald querying why he had instructed him (in a phone conference in which Mr Harwood had also participated) not to attend a meeting with Melbourne University (Ex R21, CB5676). In his email Mr Roohizadegan referred to his being bullied by Mr Sutching and Ms Phillips. He asked Mr MacDonald, in view of what he asserted to be his exclusion from the running of the region, “I need to understand what my job is please.”

130    Mr Roohizadegan’s evidence is that later the same evening he had sent an email to Mr Di Marco to complain that Mr MacDonald was stopping him doing his job, decisions were being made behind his back and that he was being prevented from seeing customers and prospects (Ex R21, CB5674).

165    It is also referred to at [940] in the course of that part of the reasons that dealt with the identity of the decision-maker and when the decision was taken, as follows:

940     Finally, to set the scene as to what I am entitled to infer was the state of Mr Di Marco’s mind at the time I note that I have rejected as entirely implausible his evidence that he had overlooked those parts of Ms Gibbons’ email as refer to Mr Roohizadegan having complained to her about his having been bullied by Mr Sutching, and to his contemplating legal action. I note Mr Harwood’s evidence is that Mr Sutching had been one of his direct reports before he became TechnologyOne’s Operating Officer for Sales and Marketing in October 2014 (T1093, lines 9-13). I infer that Mr Di Marco would also have been aware of that fact. Further, he knew that just the day before Mr Roohizadegan had sent him an email complaining about decisions being made behind his back (which I infer would include those that had been made by Mr Harwood) and Mr MacDonald having instructed him not to attend a meeting with Melbourne University.

166    The same document is referred to at [975], where his Honour repeats his finding that, prior to the meeting with the executive team on 26 April 2016, Mr Di Marco was “well aware of … the complaints Mr Roohizadegan had conveyed to [him] by email … on 25 April 2016 about decisions being made behind his back”.

167    Senior counsel for Mr Roohizadegan submitted that we should not accede to the appellants’ submission that the learned primary judge did not have any, or any sufficient, regard to the documents described above, because “not a single one of the documents to which your Honours have been referred [including the documents referred to above] ... corroborates by recording in whole or in part a reason for the dismissal not including the alleged reasons”.

168    But that, with great respect, is not the point, because “the essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable”. See Doney v The Queen (1990) 171 CLR 207 at 211 (citation and internal quotations omitted). As Bell ACJ said in Nagamuthu v Shanmugarajah [2019] NSWCA 288 at [56]-[58] (Meagher JA and Barrett AJA agreeing):

56    In DPP v Kilbourne [1973] AC 729 at 750 (Kilbourne), Lord Reid said:

There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or less extent by the other statements or circumstances with which it fits in.

57    At one point in his argument, counsel for the Appellant submitted that evidence could not be corroborative unless that evidence would itself prove the fact in issue. That submission must be rejected. It borders on a contradiction in terms and is inconsistent with both Doney and the passage from Kilbourne cited above. As was said in Doney at 211:

It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice.

58    It should also be remembered, as was also confirmed in Doney at 211 … that corroboration may be in the form of circumstantial evidence. Moreover, there may be a number of pieces of corroborative evidence (as in the present case) which, when pieced together, provide powerful confirmation, support or strength for the evidence needing to be corroborated. It is a mistake simply to analyse each piece of corroborating evidence individually and independently, as the Appellant tended to do in submissions.

169    In this case, it seems to us, that the evidence set out above at [132]-[166] was capable of corroborating each of Mr Di Marco’s stated reasons for terminating Mr Roohizadegan’s employment because, on its face, the evidence confirms, supports or strengthens Mr Di Marco’s evidence of his reasons for terminating Mr Roohizadegan’s employment, in the sense that it renders, or is capable of rendering, that evidence more probable.

170    In particular, that evidence constitutes objective and contemporaneous evidence of Mr Di Marco’s awareness of an apparent progressive decline in licence fee revenue growth on Mr Roohizadegan’s watch, and the fact that he took “no personal ownership” of the problem; a culture of crisis within Mr Roohizadegan’s team that he had caused (including “a culture of fear, intimidation, bullying and passive aggressive behaviour”, “staff now openly telling HR about systematic bullying” and a “revolving door” of staff); and, relatedly, that Mr Roohizadegan was unable to work with a succession of different managers (even to the extent of effectively describing Mr Harwood as an enemy sympathiser, when he said he belonged to “a fifth column”). In our respectful view, the learned primary judge was obliged to consider all of the evidence along those lines – that is, all the evidence set out at [132]-[166] above, and in particular to consider whether it was probative of the reasons given by Mr Di Marco for terminating Mr Roohizadegan’s employment.

171    We should also deal specifically with the Carr email. Having recognised at [226] (see [151] above) that the Carr email was “of significance in these proceedings on the Respondents’ case”, and having recorded Mr Di Marco’s evidence-in chief that he was “flabbergasted” by the content of it; that it was “one of the worst emails [he had] received in 33 years of being in business”; and that he had acted on it as a basis for terminating Mr Roohizadegan’s employment, the learned primary judge, with great respect, was bound to deal with the objective fact of the Carr email and Mr Di Marco’s evidence in respect of it. But other than a passing reference to Mr Di Marco’s evidence about being “flabbergasted”, made in the context of his Honour deciding by whom and when the decision to terminate was made (at [956]), Mr Di Marco’s evidence about his understanding of the content of the “significant” Carr email was not weighed in the balance as part of his Honour’s consideration of the question whether the respondents had displaced the statutory presumption. It is true that the Carr email is mentioned at [988], where the learned primary judge says that Ms Gibbons “had taken the liberty of exaggerating the import of what had been told to her”, and that “ … the subsequent evidence of Ms Carr and Mr Chung reveals that by the time of his acting to dismiss Mr Roohizadegan, Mr Di Marco no longer had any actual belief in the truth of what Ms Carr had twice advised him were mere allegations”, but it is not readily apparent what “subsequent evidence” his Honour had in mind. That is all the more so in light of his Honour’s earlier finding that “much of the evidence given by the … witnesses [other than Messrs Roohizadegan, Di Marco, Harwood and Stuart MacDonald] in this trial throws little or no light on the critical question of what was or were Mr Di Marco’s reason or reasons for his decision to dismiss Mr Roohizadegan”. See [73] above.

172    Senior Counsel for Mr Roohizadegan submitted in respect of [984]-[990] of his Honour’s reasons (which appear at [99]-[100] above) as follows:

And your Honours, just to conclude, if I can do so briefly, in the succeeding passages, there are – there’s a succession of – that is, from 984 through to 990. I won't dwell on them. They recapitulate matters that have already been the subject not only of findings and observations when witnesses were being considered but also with respect to the three reasons, etcetera. They are all matters which, as a matter of method, include considering relevant evidence of other witnesses, or so-called objective circumstances including documents, weighed in the usual way with respect to the way in which witnesses gave evidence and, very importantly, of course, inherent probabilities.

And all for the purpose, as you see at the beginning of 989, to explain his Honour’s confidence in rejecting Mr Di Marco’s credit. Thus, in 990, explaining scepticism with respect to the proposition that Mr Di Marco actually had any belief in the forthcoming train smash.

173    We do not agree. First, [984] and [985] of the Reasons concern only the question of the timing of the decision to terminate Mr Roohizadegan’s employment.

174    Secondly, and more fundamentally, the evidence which is mentioned in the remaining five paragraphs to which counsel referred is a long way from the whole of the evidence which the learned primary judge was required to consider when addressing the critical question of whether the appellants had displaced the statutory presumption, including the large number of documents described at [132]-[166] above and relevant evidence-in-chief given by Mr Di Marco elsewhere referred to or noted in the Reasons. (That may be because his Honour had found that “Mr Di Marco’s evidence as to his actual state of mind [could not] be relied on as the truth … at a relatively early point in this proceeding” (Reasons at [981]), and then sought towards the end of the Reasons to determine whether “critical aspects of what [he had] heard and read confirm[ed] the correctness of that finding”).

175    And thirdly, it is not clear in many instances what evidence his Honour had in mind and what it was said to amount to. For example, his Honour refers at [987] to paragraph [69] of Mr Chung’s affidavit which was “discussed earlier … in another context”, without saying where, and goes on to say that “it reveals that on the very eve of Mr Roohizadegan’s dismissal Mr Di Marco had expressed concern as to whether dismissing Mr Roohizadegan without any solid evidence and on a purely hearsay basis was the right thing to do” and that it was “a reflective observation by Mr Di Marco as to the reality of the situation: not, as Mr Chung suggests, a direction to him to investigate whether there was any such solid evidence”. With great respect to the learned trial judge, how Mr Chung’s evidence was found to have undermined Mr Di Marco’s credibility remains unclear.

176    Counsel for Mr Roohizadegan also sought to bolster the learned primary judge’s rejection of Mr Di Marco’s reasons for terminating Mr Roohizadegan’s employment by reference to the adverse credibility findings about him. But his Honour was required “to weigh [his] impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case”, including contemporary materials and objectively established facts. See Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 at 191 [27] (Ipp JA, Mason P and Tobias JA agreeing). In the absence of doing so, his Honour’s bald conclusions that Mr Di Marco’s evidence was at various points said to be “tortured and evasive”, “disingenuous”, “inherently implausible”, “knowingly untrue” and so on, are of no assistance to the respondent’s case on appeal.

177    It follows that we must uphold the appellants’ two principal grounds of appeal in respect of the adverse action claim, namely that the learned primary judge:

(1)    failed to provide adequate reasons for his conclusion that the appellants did not displace the statutory presumption under s 361 of the FW Act that the adverse action taken against Mr Roohizadegan (the termination of his employment) was for a prohibited reason; and

(2)    did not answer the essential question – whether the appellants had established that the adverse action was not taken for a reason proscribed by the FW Act, or for reasons which included such a reason – by reference to all the evidence.

178    In those circumstances, it is not necessary to consider the further grounds of appeal (set out at [18] above).

179    Senior counsel for the appellants maintained in oral address that his clients’ formal position was that they sought an order allowing the appeal and dismissing the adverse action claim, but it is fair to say that counsel recognised that such an outcome was an ambitious one. And so it is. We cannot possibly arrive at a final result without full and clear factual findings, including as to credit, by a trial court. It follows that there will be an order for a retrial of the adverse action claim.

the contract claim

Introduction

180    The terms of Mr Roohizadegan’s contract of employment were contained in a written agreement dated 26 November 2009, which was defined in the SFASOC, and referred to at trial, as the “26 November 2009 variation”.

181    By the terms of that contract, Mr Roohizadegan was entitled to be paid an incentive payment “based upon Profit Before Tax (PBT) performance for Business Unit 03 – Victoria – Service Delivery”, calculated at a rate of 7.5% from 1 October 2009 to 30 September 2010 and from 1 October 2010 at a rate of 7% (the incentive term).

182    At the trial below, Mr Roohizadegan pleaded a case (founded on, and only on, the 26 November 2009 variation) that he was entitled to be paid a bonus in respect of sales of “Student Management Services” (SMS) to entities based in Victoria, notwithstanding that TechnologyOne treated SMS sales as belonging to a discrete business unit, which was separate from Business Unit 03. The appellants denied any such entitlement, but agreed on the quantum of the claim were it to be allowed ($1.59m).

183    The learned primary judge allowed the claim.

184    In doing so, his Honour accepted (at [1105]) the appellants’ submissions that the evidence established that:

(a)    SMS was its own business unit, responsible for its own profit and loss;

(b)    SMS was a unique product requiring specialised knowledge which was lacking in the State-based business units/regions;

(c)    SMS consultants, until 2010, working in Victoria did not report to Mr Roohizadegan but rather they reported to managers within the SMS business unit; and

(d)    the salaries of SMS consultants were costed to the SMS business unit, not Business Unit 03.

185    In order to calculate “Profit Before Tax” within the meaning of the incentive term it was necessary (obviously) to deduct relevant expenses from revenue. It was common ground that included in those expenses were “royalties” that were payable or allocated to different businesses within TechnologyOne. Mr Chung, the CEO of TechnologyOne, gave the following uncontroversial evidence in that regard:

Royalties are a business expense which are calculated as a percentage of     revenue recognised. A royalty expense is essentially a charge for the product or services sold by a business unit (similar to a cost of goods sold). The royalty expense provides for the allocation of revenue to the different business units that have been involved in the provision of the product or services recorded. The percentage allocation of revenue for royalties is set out in the royalty rules.

186    The so-called “royalty rules” for the 2010 financial year (commencing 1 October 2009) were in evidence. They provided that SMS retained 60% of licence fee sales, and paid royalties of 35% to Research and Development and 5% to Head Office. No amount was retained by State regions or business units. On the other hand, the State-based business units (described as Financials, HR/Payroll, Property, Works, ECM, Performance Planning, Business Intelligence and Supply Chain) retained 60% of their licence fee sales and paid royalties of 35% to Research and Development and 5% to Head Office.

187    It was also not disputed below that the royalty rules were determined by TechnologyOne annually and that they and royalty expenses were “communicated to regional managers in a number of ways, including but not limited to: (a) budget instructions issued at the beginning of a new financial year; and (b) the Region’s monthly P&L reports”.

The reasons of the primary judge with respect to the contract claim

188    For reasons that are not clear, notwithstanding that Mr Roohizadegan’s pleaded case relied only on the so called 26 November 2009 variation, the parties made submissions about, and the learned primary judge ruled on, issues about the proper construction and legal effect of Mr Roohizadegan’s initial contract of employment dated 3 July 2006 and the contract as varied on 7 March 2007.

189    The learned primary judge concluded (at [1082]) that there was “no ambiguity” as to the natural and ordinary meaning of Mr Roohizadegan’s original contract of employment, that it “expressly provide[d] that he [would] be paid a bonus of 5.75% based on all PBT earned by TechnologyOne in respect of the Victorian region: understood as a geographical entity” and that this “was not subject to any exceptions”.

190    Having so concluded, the learned primary judge then turned to consider (at [1090]) the variations made to Mr Roohizadegan’s employment agreement on 7 March 2007. His Honour noted (at [1091]) that the language of “bonus” referred to in the original agreement had been replaced with the phrase “incentive percentage” and that, rather than Mr Roohizadegan being entitled to a bonus based on a percentage of “the region’s PBT”, the 7 March 2007 variation provided for five differential rates of incentives to be paid to him for each of five forthcoming financial years “based on Regional Profit Before Tax”. His Honour concluded (at [1092]) that the reference in the varied document to the incentive being “based on profit before tax for the specified region” could “only be a reference to the ‘specified region’ for which Mr Roohizadegan was responsible: Victoria”.

191    His Honour then turned to the pleaded agreement, as follows (at [1097]):

1097    On 26 November 2009, Mr Di Marco wrote to Mr Roohizadegan advising that as the terms of his employment had now changed it would be necessary to (again) vary the terms of his Employment Agreement. The variation would take (retrospective) effect from 1 October 2009. It is uncontentious that Mr Roohizadegan countersigned that letter to indicate that he had accepted TechnologyOne’s offer. I take it to be uncontentious that the requirement for a variation related to the changes in the company’s financial year. I further understand it to be uncontentious that it was made clear to all employees remunerated in part by incentives (and was noted in Mr Di Marco’s letter to Mr Roohizadegan of 26 November 2009) that their total remuneration review would subsequently be effected on October 15 each year, in consideration of end of financial year data.

192    His Honour then set out the relevant terms of the 26 November 2009 variation (see [181] above).

193    After referring to and dismissing a submission made by counsel for the appellants that is immaterial for present purposes, the learned primary judge continued:

1104    [No] … evidence [was] adduced on behalf of the Respondents as would reveal the existence of any contextual circumstances that might objectively have required a reasonable person in Mr Roohizadegan’s position to understand that a reference in the 26 November 2009 variation to his entitlement to be paid an incentive based on PBT “performance for Business Unit 03-Victoria” involved an exclusion in respect of SMS products. Such an exclusion would be one for which his Employment Agreement had not initially provided, given that it referred without exclusion to his entitlement to be paid a bonus based on “the region’s PBT performance”. Similarly it was not provided for by the first variation thereto, which had equally provided for him to be paid an incentive based on “regional Profit Before Tax” without qualification. Having regard to the principles outlined in Concut, I am satisfied that there is no basis for this Court to construe the text of the second variation as being to a different substantive effect. In referring to “Business Unit 03-Victoria”, the text simply adopts updated corporate language that reflects the same substantive entitlement.

194    His Honour continued:

1105    Dr Spry submits that:

… SMS was its own business unit, responsible for its own profit and loss, because it was a unique product requiring specialised knowledge which was lacking in the State based business units/regions. SMS consultants, until 2010, working in Victoria did not report to the Applicant. Rather, they reported to managers within the SMS business unit, and their salaries were costed not, for example, to the Applicant’s region, but to the SMS business unit.

1106    All that may be accepted. However, acceptance of those facts does not displace Mr Roohizadegan’s contractual right to be remunerated by way of incentives for the performance of his region without excluding those products when calculating its PBT. I am satisfied … that even in that circumstance there is no relevant ambiguity in the terms of Mr Roohizadegan’s varied Employment Agreement as would admit any exception to his entitlement to receive incentives based on his performance as PBT generated within “Business Unit 03-Victoria”. There is no suggestion that that business region does not coincide with the geographical boundaries of the state of Victoria.

1107    Dr Spry points to TechnologyOne having published royalty rules for FY2010 and onwards that might have suggested a different reading. Self-evidently however, that could have become known to Mr Roohizadegan only after he had entered into the 26 November 2009 variation of his Employment Agreement. Any subsequent unilateral action by TechnologyOne, whether or not it became known to Mr Roohizadegan, cannot retrospectively alter the terms of the contract to which he and TechnologyOne had bound themselves.

…

1109    I therefore reject any construction of Mr Roohizadegan’s Employment Agreement as varied in 2009 as would permit TechnologyOne to exclude revenue due to sales of SMS products from inclusion in the calculation of his incentives.

1110    I am satisfied that Mr Tracey and Mr Minson are correct to submit that his Employment Agreement (as varied over time) must be understood as having at all times required TechnologyOne to include all revenue received from sales of that product in Victoria in the calculation of his incentives.

1111    Contrary to his contractual entitlements, such sales were initially not included and later were only partially taken into account. I am thus satisfied that Mr Roohizadegan establishes his contractual claim.

The appellants’ submissions on the contract claim

195    Grounds 9 and 10 of the amended notice of appeal were closely related. They were as follows:

9    When construing the Respondent’s entitlement under his contract of employment to payment of an incentive ‘based upon Profit Before Tax (PBT) performance for Business Unit 03 – Victoria – Service Delivery’, the judge erred in construing ‘Business Unit 03 – Victoria – Service Delivery’ to mean ‘the Victorian region understood as a geographical entity’: at [1082], [1104], [1110].

The judge should have construed ‘Business Unit 03 – Victoria – Service Delivery’ to mean the business unit of TechnologyOne identified as ‘Business Unit 03 – Victoria – Service Delivery’.

10    The judge erred in finding that the Respondent was entitled to his claimed incentive payments: at [1104], [1106]. Those claimed incentive payments did not fall within the scope of ‘Business Unit 03 – Victoria – Service Delivery’, properly construed.

196    The appellants submitted that the learned primary judge departed from established principles regarding the proper interpretation of contracts “by failing to give effect to the text of the contract; by construing it in light of the respondent’s subjective beliefs; and by rendering the critical text redundant or surplusage”, citing in particular his Honour’s finding at [1094] that “neither party intended to abrogate entirely their pre-existing contractual relationship in such a way as would have permitted TechnologyOne unilaterally to exclude from its regional PBT any profit from sales achieved by it in Victoria”.

197    The appellants submitted that “[t]he true question before the judge was: what did ‘Business Unit 03 – Victoria – Service Delivery’ mean to a reasonable person in the position of the parties? The meaning of that technical expression depended on the objective evidence about the way TechnologyOne’s business was in fact structured; not on the subjective expectations of the respondent”.

198    They further submitted that “[t]he effect of the judge’s erroneous construction was to treat the entire phrase ‘Business Unit 03 – Victoria – Service Delivery’ as being inoperative or surplusage”.

199    The appellants also submitted that, critically, the 2009 contract was the only contractual text pleaded (citing the SFASOC at [74]), and that “[n]either the judge nor the respondent pointed to any circumstance that detracted, as a matter of law, from the plain text of the relevant contract”.

200    As to ground 10, concerning the incentive payments, the appellants submitted that the learned primary judge erred in finding (at [1104]-[1106]) that Mr Roohizadegan was entitled to an incentive payable on sales of SMS products, on the view that they fell within the scope of the relevant unit, because the objective evidence was that at all relevant times:

(a)    Technology One was divided into a number of distinct business units;

(b)    those units included “Business Unit 03 – Victoria – Service Delivery”;

(c)    SMS was within a distinct business unit not run by the respondent; and

(d)    the SMS business unit was not within “Business Unit 03 – Victoria – Service Delivery”.

201    The appellants’ written submission continued:

Strikingly, the judge conceded that ‘[a]ll that may be accepted’ (at [1106]), but thought it irrelevant in light of his construction of the contract. The judge wrongly considered that the contract ‘must be understood as having at all times required TechnologyOne to include all revenue received from sales of that product in Victoria’, regardless of the actual business units of TechnologyOne: at [1110]. On the proper construction of the contract, it was irrelevant whether SMS products were substitutable for, or ‘ought’ to have been included among, the products sold through other business units: cf [599]-[606]. The judge’s surprising and anomalous conclusion led to the respondent having a contractual entitlement to incentive payments calculated by reference to business units other than the one for which he was responsible. That was at odds with the very nature of an incentive payment.

The judge’s reasoning did not engage with the contractual text and the question properly before the court, namely: did the SMS business and, in particular, revenue from existing sales of SMS products, fall within the meaning of ‘Business Unit 03 – Victoria – Service Delivery’? On the proper construction of the contract, and upon the objective evidence, it did not.

202    The appellants also placed considerable significance on the royalty rules. They submitted that, even before 2009, SMS sales did not form part of, and were not accounted within, Mr Roohizadegan’s region and that his contract always required a calculation to be made of the relevant region’s profit before tax, which required deduction of expenses identified in the royalty rules applicable for the given financial year. As the appellants put it, “[u]nder those rules, revenue from SMS sales was allocated not to the state regions, but to the separate business units for SMS sales, SMS R&D, and head office. That was entirely consistent with the fact that the respondent did not manage, nor was his region responsible for, SMS sales. To the contrary, it would have been surprising if the respondent had been incentivised in relation to sales for which he had no responsibility”.

203    The appellants’ primary position was that this Court is in as good a position to correct the alleged errors and that the claim should be dismissed. But senior counsel for the appellants agreed in this exchange that considerations of fairness may instead result in an order for a retrial of the claim:

O’CALLAGHAN J:    [Do you say] that the critical error … is that the judge misapprehended the effective date of that royalty document and therefore there should be a new trial on the question, or the claim dismissed?

MR WOOD:    It would, perhaps, be a little bit unfair for the plaintiff to lose on that basis, notwithstanding he didn’t cross-examine on this point. Our primary position is, of course, the claims should be dismissed. But we could see why the court, if it was minded to order retrial on the statutory claim might, for considerations of fairness, be inclined to order a retrial on the contractual claim. But as a proposition, our primary proposition is, of course, it’s an error that the Full Court is in as good a position to fix as a trial judge.

Mr Roohizadegan’s submissions on the contract claim

204    Counsel for Mr Roohizadegan’s principal contentions in response were as follows:

(1)    The primary judge’s finding that Mr Roohizadegan’s initial contract of employment provided that all revenue received by TechnologyOne in respect of an entity physically present in Victoria was to be included in the calculation of his entitlement to a bonus based on the profit before tax in his region was correct, in particular because it referred to “the region’s PBT performance”.

(2)    The primary judge was also correct to reject the appellants’ construction of the 26 November 2009 variation and his Honour rightly found that the adoption of the expression “Business Unit 03” did not alter the basis upon which Mr Roohizadegan’s incentive payments were calculated.

(3)    The primary judge did not err in taking into account Mr Roohizadegan’s subjective beliefs, in particular that he was not subjectively “put on notice” about the meaning of the 2009 variation, because that was an “objective circumstances relevant to the process of construction … [because] … in circumstances where it was accepted that Mr Di Marco assured Mr Roohizadegan in pre-contractual discussions that his entitlement to incentives on PBT earned from Victorian entities would not be subject to any exceptions, one would have expected notice to have been given if the parties had intended for an exception to be introduced. However, no such notice was given”.

(4)    It was not inappropriate for the primary judge to take into account the pre-existing arrangements for the calculation of Mr Roohizadegan’s incentives pursuant to the 2006 contract as a circumstance relevant to the construction of the 2009 variation and that “it would have been erroneous not to have done so and to have regarded the 2009 Variation as a discrete, self-contained contract”.

(5)    Although “[i]t may be accepted that evidence about the way in which [TechnologyOne’s] business was structured may bear on the task of construction as one of the surrounding circumstances, but only insofar as those matters were ‘mutually known’ by the parties at the time of entering into the contract. The fact that [TechnologyOne’s] accountants understood and treated the expression ‘Business Unit 03’ to exclude SMS sales is therefore not determinative”.

205    Senior counsel for Mr Roohizadegan did not say much about the contract claim in the course of his oral submissions. He agreed that the learned primary judge was mistaken in thinking that the royalty rules for the 2010 financial year could not have been known to Mr Roohizadegan at the time of the 26 November 2009 variation because his Honour did not appreciate that the rules in fact pre-dated the variation. His submissions, including concerning that “slip” as counsel called it, were as follows:

And with respect, in particular, to the royalties rules, it is … difficult to understand how they can be taken into account in understanding the terms that his Honour construed with respect to variations expressed in negotiation not to be changing substantive rights except favourably to our client. And it is for those reasons, in our submission, that those royalty rules can’t be a tail that wags the dog and, in fact, it was not demonstrated whether or when they were made known to our client.

You’ve got a generic statement about being sent to regional managers, if his Honour, perhaps, slips in relation to an inference that an amendment late in ‘09 must have preceded rules for Financial Year ‘10 and what my friend submits in that regard has force, with respect, it still remains the case in terms of matters commonly known to both sides there’s simply no evidence importing that knowledge, let alone, of the detail to be extrapolated from a reading of it in in detail to my client.

And the authors of those royalty rules are not delegates for the purpose of making substantive terms of a contract whereby, at best, it is a subsequent contract with respect to the interpretation of terms existing, coming to be varied. And for those reasons, it is wrongly, this material is wrongly called in aid by our learned friend.

Consideration of the contract claim

206    In our view, grounds 9 and 10 of the amended notice of appeal must be allowed.

207    By the terms of the pleaded contract (the 26 November 2009 variation) Mr Roohizadegan was entitled to be paid an incentive payment “based upon Profit Before Tax (PBT) performance for Business Unit 03 – Victoria – Service Delivery”.

208    The question that arises therefore is what did “Business Unit 03 – Victoria – Service Delivery” mean to a reasonable person in the position of the parties?     

209    As the High Court explained in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 at 116-117 [46]-[50] (French CJ, Nettle and Gordon JJ):

46    The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

47    In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

48    Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

49    However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

50    Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations.

(Citations omitted.)

210    In our view, it was not open to the learned primary judge to conclude that “Business Unit 03 – Victoria – Service Delivery” when used in the 26 November 2009 variation meant “the Victorian region understood as a geographical entity”, because that was the meaning his Honour attributed to two earlier, unpleaded, contracts of employment.

211    It seems to us, with great respect to the learned primary judge, that the question of what Mr Roohizadegan’s previous contracts of employment provided for were irrelevant, in particular when the only pleaded entitlement to the SMS incentives arose under the 26 November 2009 variation.

212    Further, in our view, the learned primary judge’s misunderstanding of the operative date of the royalty rules means that his finding that the 26 November 2009 variation is not to be construed in light of those rules, as the appellants contended below and on appeal that it must be, cannot stand.

Disposition of contract claim appeal

213    In the ordinary case where a question of how a contract is properly to be construed arises on an appeal, it is often possible for the appeal court to decide the question for itself, without putting the parties to the trouble and not inconsiderable expense of a new trial.

214    In this case, however, in light of senior counsel’s concession that considerations of fairness to Mr Roohizadegan are involved here for the reason he gave (see [203] above) and, where in order to construe the contract it would inevitably require us closely to examine an extensive array of evidence, including the role the royalty rules play as a “surrounding circumstance”, much of which was not referred to in oral argument, we have concluded that there should be a retrial of the contract claim.

Mr Roohizadegan’s claim for forgone share options

215    The learned primary judge recorded at [1023] that the parties agreed that Mr Roohizadegan would be entitled to an award of $756,410 in damages with respect to his forgone share options withdrawn from him in consequence of his having been summarily dismissed, assuming a finding that his termination had been unlawful under the FW Act. It follows that because the appellants’ appeal in respect of the FW claim will be allowed, the order for the award of compensation in respect of forgone share options falls away and will also be set aside.

the notice of contention

216    Mr Roohizadegan submits that if one or more grounds of the amended notice of appeal is made out, the primary judge’s conclusion that the appellants contravened the FW Act should be upheld on the basis that:

(a)    each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment;

(b)    each failed to deny that their reasons for advising Mr Di Marco as they did included one or more of the proscribed reasons alleged by Mr Roohizadegan and/or to deny that they had no additional reasons which included one or more of those proscribed reasons; and

(c)    the objective evidence was not sufficient to negate those propositions on the balance of probabilities.

217    We are, with respect, unable to accept any of those contentions.

218    First, the case now sought to be made is not the case that Mr Roohizadegan ran below. His case before the learned primary judge was that there were ten decision makers, each of whom was responsible for the decision to terminate his employment.

219    Secondly, each of Messrs Harwood, MacDonald and Chung gave evidence that Mr Di Marco was the sole decision maker, and the learned primary judge accepted their evidence about that.

220    Thirdly, and relatedly, the learned primary judge made no finding that any of those gentlemen were motivated by any relevant prohibited reason, viz any of the seven complaints, and to find that each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment would be inconsistent with the learned judge’s finding below that Mr Di Marco was the sole decision maker.

221    Fourthly, the claim that each of Mr Harwood, Mr MacDonald and Mr Chung had a material effect on Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment was never alleged, so that he cannot now seek to take advantage of the s 361 presumption. See, eg, Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347 at 356 [19]-[20] (Tracey, Reeves and Bromwich JJ) (explaining that before the presumption under s 361 operates the particular reason or the particular intent for the contravening action must be precisely and distinctly alleged in the application).

222    For each of those reasons, the notice of contention must be dismissed.

the cross-appeal

223    The principal grounds of Mr Roohizadegan’s cross-appeal are that the learned primary judge erred in assessing his future economic loss on the basis that his claim was confined to the period ending 30 September 2020, that the period should have extended until his retirement in 2027 and that the award of general damages was, among other things, manifestly inadequate. It was also contended that the award of damages for future economic loss should be increased by $84,000 and that the primary judge had made errors in the amounts he awarded in respect of interest and costs.

224    For the reasons set out above, there is to be a new trial on both the adverse action claim and the contract claim. The orders made in respect of penalties, damages, compensation and pre-judgment interest will thus be set aside. The cross-appeal must therefore be dismissed.

disposition

225    There will be orders allowing the appeal, setting aside each of the orders made by the primary judge, dismissing the cross-appeal and the notice of contention, and remitting the matter for a new trial.

Associate:

Dated:    5 August 2021

SCHEDULE OF PARTIES