Federal Court of Australia
Roohizadegan v TechnologyOne Limited (No 2)  FCA 1407
ADRIAN DI MARCO
DATE OF ORDER:
2 October 2020
THE COURT ORDERS THAT:
1. The Applicant’s application made pursuant to the Fair Work Act 2009 (Cth) (the Fair Work Act) be upheld.
2. Pursuant to s 546 of the Fair Work Act:
(a) the First Respondent pay a penalty of $40,000.00; and
(b) the Second Respondent pay a penalty of $7,000.00.
3. Pursuant to s 546(3)(c) of the Fair Work Act, the penalties imposed pursuant to Order 2 be paid to the Applicant.
4. Subject to Order 9 in respect of pre-judgment interest to be awarded thereon, pursuant to s 545 of the Fair Work Act the First Respondent pay to the Applicant the sum of $756,410.00 as compensation in respect of his forgone share options.
5. Pursuant to s 545 of the Fair Work Act, the First Respondent pay to the Applicant the sum of $2,825,000.00 as compensation for his future economic loss.
6. Pursuant to s 545 of the Fair Work Act, the First Respondent pay to the Applicant the sum of $10,000.00 as compensation analogous to general damages.
7. In respect of the Applicant’s associated claim in contract against the First Respondent there be judgment for the Applicant.
8. Subject to Order 9 in respect of pre-judgment interest to be awarded thereon, the Applicant be awarded damages for breach of contract in the sum of $1,590,000.00.
9. The parties are to confer with the aim of providing the Court with agreed proposed orders as to what, if any, amounts should be awarded by way of pre-judgment interest additional to the compensation and damages awarded pursuant to Orders 4 and 8, no later than 14 days from the date of publication of these reasons.
10. If proposed orders cannot be agreed pursuant to Order 9, the parties are to provide the Court with their separate proposed orders and may file any written submissions (of no more than 2 pages) on which they would wish to rely with respect to those proposals, no later than 21 days from the date of publication of these reasons.
11. Subject to Orders 12-14, there be no order as to costs.
12. If a party seeks an order for costs, that party shall file and serve written submissions (of no more than 5 pages) within 14 days of the publication of these reasons.
13. If submissions are filed pursuant to Order 12, the party seeking an alternative order shall file and serve any responsive submissions (of no more than 5 pages) within 28 days of the publication of these reasons.
14. Any application for such orders in respect of costs to be determined on the papers.
1 The First Respondent, TechnologyOne Limited (TechnologyOne), is a publicly listed enterprise software company. At all times material to these proceedings Mr Adrian Di Marco, the Second Respondent, was Executive Chairman and Chief Executive Officer of TechnologyOne.
2 This case concerns proceedings brought by the Applicant Mr Benham Roohizadegan, a former senior employee of TechnologyOne, against the company and Mr Di Marco. Mr Roohizadegan seeks compensation and penalties arising out of what he alleges was his summary dismissal on 18 May 2016. He claims that his dismissal was for a reason that is, or reasons that are, prohibited by s 340(1) and/or s 351 of the Fair Work Act 2009 (Cth) (Fair Work Act).
3 TechnologyOne denies that Mr Roohizadegan was dismissed for the reason, or for any reasons including, that he had exercised a workplace right as is protected by those provisions of the Fair Work Act. It says that Mr Di Marco alone made the decision to terminate his employment. It pleads that Mr Di Marco dismissed Mr Roohizadegan solely for the lawful and valid reasons of which he gave evidence in these proceedings.
4 Assuming the Court finds the First Respondent liable for breaches of the Fair Work Act in respect of Mr Roohizadegan’s termination (which is denied), Mr Di Marco does not dispute his accessorial involvement in that regard.
5 Additionally, Mr Roohizadegan seeks damages for breach of contract by TechnologyOne in respect of its alleged non-payment of part of the incentives due to him since 26 November 2009 as a percentage of the Profit Before Tax performance of TechnologyOne’s “Business Unit 03 –Victoria - Service Delivery”. TechnologyOne denies that he is owed any such outstanding payments.
6 Mr Roohizadegan commenced employment with TechnologyOne as State Manager for Victoria on 3 July 2006.
7 When Mr Roohizadegan joined TechnologyOne, it was then a relatively smaller company. It had only a modest footprint in Victoria. However, under Mr Di Marco’s leadership it was setting ambitious growth targets. Mr Di Marco’s evidence is that, together with his former direct report Roger Phare, Mr Roohizadegan had built the Victorian region “from very small to very large” (T519, line 29).
8 Mr Di Marco’s evidence is that in 2006 TechnologyOne had 377 employees, its annual revenue for the 2005/06 financial year (which I interpolate from the evidence before me then ended on 30 June 2006 but was later changed to end, for TechnologyOne’s accounting purposes, on 30 September 2006) was $66.485 million, and licence fees were $17.150 million. By 2016, TechnologyOne had grown significantly. It had about 1000 employees, its annual revenue for the 2015/16 financial year (ending 30 September 2016) was $249 million, and licence fees were $56 million.
9 During his pre-employment interview Mr Di Marco told Mr Roohizadegan that if he was successful during his time at TechnologyOne, he “would make a lot of money”. That proved to be an accurate prediction.
10 Mr Roohizadegan’s gross income increased from $208,932.00 in the 2006/07 financial year to $845,128.00 in the 2015/16 financial year. Most of that increase was attributable to incentive payments; Mr Roohizadegan’s base salary increased only from $165,000.00 to $192,000.00 (see as submitted for by Mr Roohizadegan’s counsel at  below) during the same period.
11 Mr Roohizadegan’s initial employment agreement (dated 3 July 2006) provided that he was to be paid a base salary and a bonus or “incentive” based upon the Profit Before Tax (PBT) performance of the Victorian “region”.
12 It is uncontentious that TechnologyOne operated for some purposes as if it were divided into semi-autonomous components. Each component (however described) reported to the company’s head office, located in Brisbane. It is similarly uncontentious that Mr Roohizadegan was appointed to be responsible for the management of the Victorian region.
13 Mr Roohizadegan’s employment contract was first varied on 7 March 2007. The terms of his employment were subsequently substituted for by a written agreement dated 26 November 2009. That agreement specified that, in addition to his base salary, Mr Roohizadegan was to be paid an incentive based on “PBT performance for Business Unit 03 – Victoria – Service Delivery”. The percentage specified was 7.5% from 1 October 2009 to 30 September 2010 and 7% thereafter.
14 It is uncontentious that in the 26 November 2009 agreement Mr Roohizadegan’s title, “State Manager”, remained the same. The Respondents however submit that, inter-alia, the change to the name “Business Unit 03 – Victoria – Service Delivery” to describe the component of TechnologyOne in respect of which PBT was to be measured for the purpose of calculating his incentives is of significance. Mr Roohizadegan takes issue with that proposition. He says that he remained (as he had always been) entitled to be paid an incentive based on his agreed share of PBT for all sales TechnologyOne made in the geographical region of Victoria.
15 There were further variations to Mr Roohizadegan’s employment agreement, dated 12 December 2014 and 13 November 2015 respectively. It is however common ground that those variations have no bearing upon the disposition of this matter.
16 According to Mr Roohizadegan, the total revenue for the Victorian region of TechnologyOne grew from approximately $8.4 million for the 2005/06 financial year to approximately $46.9 million for the 2014/15 financial year (Ex A30, CB132). That evidence is not in dispute.
17 Mr Roohizadegan received the TechnologyOne Chairman’s Award in 2010, 2012, 2013 and 2014. His uncontested evidence was that each year that award is given to only four to six of TechnologyOne’s approximately 800 to 1,000 employees.
18 It is thus undisputed that for the greatest part of his service, Mr Roohizadegan’s employment was of significant mutual financial benefit to both him and TechnologyOne. I take it to be in recognition of that mutuality that Mr Roohizadegan was granted share options in the First Respondent in 2013, 2014 and 2015 in addition to his contracted remuneration. Such a benefit was not granted to any other State Manager.
19 Mr Di Marco and the First Respondent acknowledge that until the circumstances that had led him to dismiss Mr Roohizadegan arose, Mr Di Marco had viewed him as a “real hunter”. Mr Di Marco accepts that Mr Roohizadegan had brought in some big deals for TechnologyOne. In his evidence-in-chief Mr Di Marco described Mr Roohizadegan as having been “really hardworking”, committed and loyal to the business (T519, lines 30-32).
20 Mr Di Marco qualified that laudatory description in his oral evidence by observing that from 2014, he had begun to question whether Mr Roohizadegan might be the right person to take the business forward.
21 Nonetheless, Mr Di Marco gave oral evidence that until the events which led to him to terminate Mr Roohizadegan’s employment occurred in 2016 he had remained confident that if Mr Roohizadegan had support from, and was mentored by, his direct report (TechnologyOne’s National Operating Officer for sales) “we could make that work” (T519, lines 29-39).
22 He had thought bringing in a new National Operating Officer would ensure success in that regard (T520):
It would assist Behnam. Someone who could mentor Behnam, who could bring the disciplines and help Behnam with those disciplines, and also help … structure Victoria for the next stage of growth, so to bring someone in to help him and to help the other regions, and I was confident that combining that with the other good things that Behnam did, because he was very hard working, very committed, very loyal and a good hunter, you know, that we could make this work, and so I was very positive at that point through 2015, 14-15, that this could work.
23 I note that there is one significant qualification I ought to record with respect to these introductory observations. At paragraph  of Mr Di Marco’s affidavit (Ex R31) he deposes that “over time” he had become aware that others saw Mr Roohizadegan differently. He deposes that as early as December 2007 he had received a complaint from a long serving employee, Mr Bernard Morris, about Mr Roohizadegan. I return to that specific evidence later in these reasons in regard to my findings as to Mr Di Marco’s credibility.
24 On the surface, things were thus going very well at work for Mr Roohizadegan. However, it is uncontentious that from late 2010 he had come to grapple with a self-perceived burden of guilt.
25 In September 2010, Mr Roohizadegan’s then 14 year old daughter became ill (T159). He did not go to the hospital with her at that time. He had thought it vital to finalise an important deal on behalf of TechnologyOne before the end of the company’s financial year (T163). It is not in contest that as a result of that decision Mr Roohizadegan experienced extreme feelings of guilt about his then lack of involvement in his daughter’s care.
26 It is uncontentious that Mr Roohizadegan’s daughter was hospitalised for full time care in late 2010 after she had been diagnosed with Kawasaki disease (T162). She had required open-heart surgery in January 2011 (T161).
27 Mr Roohizadegan’s evidence is that outside of the work environment, his feelings of guilt had a significant impact on his family and his personal life. Mr Roohizadegan escaped his pain in work.
28 Mr Roohizadegan identified his feelings of guilt as stemming from his inappropriately having prioritised his work for TechnologyOne over his daughter’s life and health. It is therefore perhaps cruelly ironic that Mr Roohizadegan’s evidence is that in order to avoid that distress, work became the one safe place where he could “escape”. He therefore increased his already long working hours (T163).
29 Outside of work however, Mr Roohizadegan could not escape his grief. He became emotionally closed off from his wife. Predictably, that gave rise to tensions within their marriage. Mr Roohizadegan gave evidence, which I accept, that at various times the marital relationship had been on the verge of breaking down. Mr Roohizadegan also experienced repeated thoughts of suicide. On at least one occasion he had taken steps, ultimately not implemented, directed towards that end.
30 The Respondents’ counsel Dr Spry’s cross-examination of Mr Roohizadegan proceeded on the premise that his having suffered feelings of guilt after his daughter had become ill was not in dispute.
31 Mr Roohizadegan’s evidence is that he had told Mr Di Marco about his daughter’s grave illness shortly after becoming aware of its seriousness. However, he had he kept silent about his own suffering.
32 I proceed on the basis that beyond confirming to his work colleagues from time to time that he remained concerned about his daughter’s health, Mr Roohizadegan was careful not to reveal to anyone at TechnologyOne the depth of his private turmoil. Being able to focus on the practical problems of work without anyone at TechnologyOne knowing about his damaged condition allowed him to hide in his safe place, numb to his grief and pain.
33 There is no evidence at all to suggest that Mr Di Marco, or anyone else at TechnologyOne, at any time in the years that followed had the least inkling that Mr Roohizadegan was suffering from or had suffered a psychiatric illness (being a depressive disorder, as was the conclusion of the experts who gave evidence in this trial) until after he had been summarily dismissed. The Court has no reason to doubt the evidence that Mr Di Marco gave in describing what occurred after the meeting at which Mr Roohizadegan’s employment was terminated:
Dr Spry: Did he come back, or did he just leave?
Mr Di Marco: He talked to Kathy on the way out, and then he left, so I was very surprised with the whole way the meeting had gone. It was not what I expected. Kathy then talked to me. She said that he had made some concerning comments, something about jumping off a bridge. I didn’t believe it, you know. I was not aware of any mental health issues that Behnam had. They had never been raised. I didn’t know about that, so, to me, I couldn’t see why he would jump off a bridge. I mean, he’s paid $1 million a year, you know. He’s paid to deliver and perform. If you don’t, you leave, and we separated as nicely as possible. Why would you do that? So I didn’t believe it, but I said to Kathy, “Still, you need to follow up and you need to make sure he’s fine, just in case, and keep me informed.” And that was basically it.
34 Mr Chung, who at the time had been TechnologyOne’s Chief Operating Officer and had known Mr Roohizadegan for several years prior to his dismissal, gave evidence under cross-examination that when he had been told that Mr Roohizadegan had spoken of suicide after being dismissed his immediate reaction had been that Mr Roohizadegan was trying it on. I reject that that was a cruel observation. Rather, while perhaps bluntly expressed, that was simply what Mr Chung thought to be the most plausible explanation for Mr Roohizadegan’s statement. In common with everyone else with whom Mr Roohizadegan had worked at TechnologyOne, Mr Chung had been given no reason to suspect that Mr Roohizadegan did not enjoy robust mental health. It is only in retrospect that it seems so.
35 Sustaining his workplace as a place of safety where he could escape his otherwise incapacitating depression required Mr Roohizadegan not only to hide any symptoms of overt distress from his employer, but also to remain highly functioning in a demanding role. I am satisfied that to a very significant degree Mr Roohizadegan accomplished both of those objects.
36 I accept however that it is implausible that Mr Roohizadegan could have been capable of hermetically sealing off his work-life from the impact of his distress. Dr White, a psychiatrist, examined Mr Roohizadegan on 4 November 2015 in connection with other legal proceedings that he and his daughter were then bringing in which each had claimed damages on the basis that certain medical practitioners who were alleged to have misdiagnosed her had been negligent. Dr White recorded Mr Roohizadegan telling him:
They [TechnologyOne] don’t know about my suicidal tendencies but I’ve been told in the past four years that I could have done better. I haven’t been performance managed yet but I have to work longer hours because I get absolutely distracted about my daughter. I’m not efficient. Severe concentration problems. I forget things and I send the wrong emails to people, repeatedly getting into trouble with my boss because I misjudge situations.
37 Although Dr White’s note appears from its dating to have been made from memory a few days after his in person consultation, I accept that Mr Roohizadegan expressed himself to Dr White substantially to that effect.
38 However, two things are to be observed about what Mr Roohizadegan reported to Dr White. First, to the extent that Mr Roohizadegan told Dr White that he had suffered a deficit in concentration there is unchallenged evidence that he had adopted adaptive strategies in that regard such as working longer hours and making notes. As I have earlier noted, those strategies were demonstrably successful in achieving their object of compensating for those deficits: at least insofar as Mr Roohizadegan continued to be regarded as an outstanding performer (see below at -). It was for that reason that his work colleagues never recognised him to have suffered a psychiatric illness or injury.
39 Second, while it can be accepted that Mr Roohizadegan told Dr White about his getting into trouble with his then boss (being Mr Martin Harwood) Mr Roohizadegan was then unaware of certain matters as have emerged in this proceeding. The evidence that has emerged as to Mr Harwood’s conduct and motivations suggests there may be an alternative explanation for Mr Roohizadegan having found himself “in trouble” with his boss: see below at -.
40 I do not understand the Respondents to ask the Court to find that Mr Roohizadegan’s long established, and only later diagnosed, depressive disorder caused a material decline in his performance at work. In any event, I am satisfied that it did not.
41 It is uncontentious that Mr Roohizadegan’s condition first manifested itself in late 2010, after his daughter had become ill.
42 Mr Roohizadegan’s receipt of the TechnologyOne Chairman’s Award in each of 2012, 2013 and 2014 is entirely inconsistent with his work performance having fallen off. It is equally inconsistent with Mr Roohizadegan having been granted share options in 2013 and early 2015, after he had complained to Mr Di Marco that his performance should entitle him to an equity interest in the company. Mr Roohizadegan was not the passive recipient of TechnologyOne’s general largess. He was always astute to ensure that his contribution to the success of TechnologyOne be acknowledged in hard economic terms. Indeed, in his evidence-in-chief Mr Di Marco describes Mr Roohizadegan as having been a constant complainer:
Behnam complained from the day he started at TechnologyOne. He complained from day one that the salary that we had offered him and that he had agreed was not enough and I had to change it. He complained about options. He complained about staff. He complained so much. You will see it through all the papers, and the last three or four months … I couldn’t care less about a complaint. All I cared about is his ability to perform, number 1, and number 2, that his behaviours were acceptable. But his complaints were totally irrelevant to the whole thing. And if Behnam had been the right person, he would still be there.
43 As Mr Di Marco’s evidence implies, I am entitled to be satisfied that had Mr Roohizadegan not been a strong performer he would have been given very short shrift. Instead, I infer that Mr Di Marco yielded to Mr Roohizadegan’s demands for additional financial rewards because he was a strong performer whose services he wished to retain.
44 The evidence also is clear that Mr Di Marco put up with Mr Roohizadegan’s practice of bypassing his direct reports to raise any concerns he had that touched on the success of the Victorian region directly with him. Mr Di Marco’s affidavit evidence on this point was as follows:
Behnam never reported directly to me, but always to one of the managers referred to in the paragraph above. Notwithstanding this, Behnam frequently emailed me about a range of issues, and when he was in Brisbane, he would often ask to speak with me. I would agree to see Behnam when he was in Brisbane as I thought he was working hard to grow TechnologyOne's business in Victoria. Behnam escalated lots of things to me, more than any other State Manager. I did not encourage him to do this, and as time went by, it became a major concern to me how often he was escalating matters to me which should have been discussed and addressed with his manager. (Ex R31, ).
45 I discount Mr Di Marco’s evidence to the extent that it might suggest that he had sought to counsel Mr Roohizadegan not to raise matters directly with him. Mr Di Marco accepted that Mr Roohizadegan had expressed appreciation of his willingness to meet him one on one whenever he came to Brisbane (T613, lines 3-4). There is no evidence before me as would entitle me to find that Mr Di Marco ever disabused Mr Roohizadegan of his understanding that his conduct in escalating his concerns was appropriate. I conclude that Mr Di Marco’s willingness to have routinely allowed Mr Roohizadegan direct access to him was because he had accepted that Mr Roohizadegan was, and remained until his dismissal, significantly responsible for TechnologyOne’s sales growth and increased profits in Victoria: a large and important part of its national market.
46 Putting aside Mr Roohizadegan’s contractual claim, this proceeding thus turns on why, notwithstanding their prior mutually beneficial history, in 2016 TechnologyOne decided to terminate Mr Roohizadegan’s employment. In closing submissions his senior counsel, Mr Tracey (junior counsel being Mr Minson), abandoned reliance on Mr Roohizadegan’s pleadings insofar as they assert breaches of the Fair Work Act by TechnologyOne unrelated to Mr Roohizadegan’s dismissal (T1214, lines 26-31, 39-47).
47 Mr Roohizadegan’s case therefore is confined to the claim that he was dismissed for the following prohibited reasons, contrary to s 340 of the Fair Work Act:
• 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;
• His proposed exercise of his right to bring legal proceedings under a workplace law;
• His proposed exercise of a safety net contractual entitlement; and
• His having a safety net contractual entitlement.
48 I note in that regard that in closing submissions Mr Tracey also indicated that the Applicant did not press pleaded claims that he had been dismissed for other reasons (being his taking sick leave; being temporarily absent from work; and having a mental disability) (T1217, lines 15-39).
49 Mr Roohizadegan’s evidence is that as a result of his dismissal he suffered a profound mental breakdown. Whether his dismissal caused that breakdown, or whether it was merely a manifestation of his earlier depressive disorder from which he had continued to suffer after his daughter’s illness, is the subject of contested expert evidence to be discussed later. It is however not in dispute that after he was dismissed Mr Roohizadegan became, and remains, incapable of ever working again.
50 The relevant statutory provisions upon which Mr Roohizadegan’s claims are based are those provided for in ss 340 and 341 of the Fair Work Act as follows:
(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).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
341 Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(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.
51 Insofar as there are multiple reasons for the taking of adverse action, s 360 provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
52 In his Further Amended Statement of Claim Mr Roohizadegan pleads that he made seven complaints in relation to his employment, and that these were individually or severally the reason for his dismissal or were included as a reason for that action. Mr Tracey submits that Mr Roohizadegan was able make those complaints “in relation to his employment” pursuant to TechnologyOne’s “Open Door Policy” (Ex A32, CB 3553-33554) and its “Workplace Bullying Policy” (Ex A80).
53 Assuming the Court finds that Mr Roohizadegan did make those complaints, I do not take Dr Spry to submit that he was not “able” to make them “in relation to his…employment”.
54 That concession is appropriate. I will be brief in explaining why I accept that to be the case, because I do not take the conclusion to be in issue.
55 Mr Roohizadegan’s contract of employment referred to TechnologyOne’s policies and procedures as setting out the company’s expectations of how its employees were to conduct themselves. Clause 13 of his contract relevantly provided as follows:
13.1 To help our business operate lawfully, safely and efficiently, we have policies and procedures, which set out how all employees are to conduct themselves and processes, which are to be followed. You will be expected to follow these policies and procedures current at the time. Our company wide policies and procedures can be accessed on our intranet. It is incumbent on you to be familiar with all our policies and procedures. Serious breaches of our policies and procedures current at the time could result in termination of your employment.
13.2 To meet the changing environment in which we operate, it will be necessary to change these policies and procedures from time to time. You will be given notice of the changes and will be required to follow the change policies and procedures.
56 I am satisfied that TechnologyOne’s “Open Door Policy” and its “Workplace Bullying Policy” (as are in evidence as exhibits A32 and A80) are not disputed to have been applicable at the relevant time. They provide an explicit basis for the Court to be satisfied that Mr Roohizadegan was “able to make a complaint” as he claims he did, inter-alia, about his having been bullied in relation to his employment.
57 Having regard to the terms of Mr Roohizadegan’s contract and those policies, I am satisfied Mr Roohizadegan had the entitlement upon which he relies. My conclusion in that regard is consistent with the reasoning of Dodds-Streeton J in Shea v TRUenergy Pty Ltd (No 6)  FCA 271 at .
58 I am satisfied for those reasons that Mr Roohizadegan possessed and was capable of exercising a relevant “workplace right”.
59 He was accordingly protected by s 341(1)(c)(ii) against adverse action being taken against him for the reason that he had made a complaint in relation to his employment.
60 The same applies with respect to any complaint Mr Roohizadegan made in good faith regarding his contractual entitlements. In that regard I respectfully adopt the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King  FCAFC 15 at -:
Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is “able to make a complaint” about his or her employer’s alleged breach of the contract of employment. That ability is “underpinned by” (to use Dodds-Streeton J’s expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract.
Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is “able to make a complaint” within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint.
61 Again, I do not apprehend the Respondents to take issue with that proposition.
62 I further take the Respondents to accept that, to the extent that Mr Roohizadegan did exercise a workplace right by complaining inter-alia about his being bullied by one or more other employees of TechnologyOne or about his safety net contractual entitlements, the presumption provided for by s 361(1) of the FWA applies in these proceedings. In any event, for the reasons that follow I so find.
63 The terms of s 361 of the Fair Work act are as follows:
361 Reason for action to be presumed unless proved otherwise
(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.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
64 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay  HCA 32; 248 CLR 500 (Barclay) at  French CJ and Crennan J - while acknowledging that Mason J’s remarks had been directed to an earlier expression of the statutory presumption - adopted as applicable to its current expression his Honour’s observation in General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 (Bowling) at 617 that:
the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
65 That understanding of the purpose of the provision has been repeatedly reaffirmed: see, for example, Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd  FCA 893 per Banks-Smith J at .
66 In respect of the pleaded allegation that Mr Roohizadegan was dismissed for the reason that, or reasons including that, he had exercised his workplace rights, TechnologyOne thus has the burden of displacing the statutory presumption provided for by s 361(1): assuming the Court finds that he did make the complaints he alleges to persons with authority to address those complaints within TechnologyOne.
67 The Respondents’ case is that Mr Di Marco was the sole decision-maker with respect to Mr Roohizadegan’s dismissal.
68 The Respondents do not suggest that Mr Roohizadegan’s dismissal was not relevantly the taking of “adverse action”. They simply contend that Mr Roohizadegan’s dismissal was for different reasons to those alleged by Mr Roohizadegan. It had nothing to do with his having exercised any workplace right.
69 If “adverse action” is taken as a result of a decision that has been made by an individual within a corporation, the identification of the reasons for the corporation taking the adverse action requires an inquiry focussed on the actual mental processes of the relevant individual who made that decision: Barclay at  (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41; 253 CLR 243 (BHP Coal) at  (French CJ and Kiefel J),  (Gageler J).
70 Barclay establishes that an employer will not be liable for a breach of the Fair Work Act simply because he or she has dismissed an employee in awareness that that employee has exercised a protected workplace right. An employer contravenes the Fair Work Act, and liability is imposed, only if their employee’s exercise of that right was the reason or part of the reason for their having taken that adverse action. A court is therefore required to make findings regarding the decision maker’s actual reasons. What those reasons are is to be determined from all of the facts established in the proceeding, and inferences properly drawn from them.
71 Section 361 however requires the Court to conclude that the reason the employee has alleged was his or her employer’s reason for taking adverse action against him or her was in fact the reason for that action, unless the employer can establish that the adverse action was not taken for that alleged prohibited reason. Proof in that regard is on the balance of probabilities: Barclay at  per French CJ and Crennan J, citing Gibbs J in Bowling at 239.
72 In State of Victoria (Office of Public Prosecution) v Grant  FCAFC 184; 246 IR 441 at , Tracey and Buchanan JJ summarised (in terms which I respectfully adopt) the following propositions as having been established by Barclay:
• The question is one of fact. It is: “Why was the adverse action taken?”
• That question is to be answered having regard to all the facts established in the proceeding.
• The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
• It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”
• Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
• If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
73 In BHP Coal at  Gageler J held that to escape liability, having regard to the presumption, an employer must “prove that the act or omission having the character of a protected industrial activity [as was relevant in that instance] played no operative part in its decision”.
74 However, in Australian Building and Construction Commissioner v Hall  FCAFC 83; 261 FCR 347 a Full Court of this Court held at :
The orthodox approach to dealing with allegations of adverse action said to be engaged in “because” of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above … s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is “a substantial and operative factor” in the respondents' reasons for taking the adverse action (citing Barclay at  (French CJ and Crennan J) and  (Gummow and Hayne JJ)).
(Citations omitted except where expressly set out).
75 Although I remain challenged to understand how the conclusion stated in the final sentence of that passage can be reconciled with the operation of the statutory presumption, my failure in that regard is of no consequence; the outcome that the Full Court reached, which their Honours expressed as being required by Barclay, is binding on me. 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 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, whether about bullying or his contractual entitlements, 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.
79 However, for the reasons I further give I reject the proposition that I am entitled to conclude on the balance of probabilities that his termination was not for the reasons he alleges or did not include those reasons.
80 More specifically I am unpersuaded the Respondents prove, on the balance of probabilities, that Mr Roohizadegan’s complaints about having been bullied, inter-alia by his two most recent direct reports, Mr Martin Harwood and Mr Stuart MacDonald, were not a substantial and operative reason for Mr Di Marco’s decision to terminate Mr Roohizadegan’s employment.
81 Accordingly I have concluded that Mr Roohizadegan is entitled to rely on the presumption provided for by s 361 of the Fair Work Act.
82 Before turning to my reasons for reaching those conclusions, I should identify the key dramatis personae and their roles at TechnologyOne during the period material to these proceedings. Doing so will allow reference to be made to those individuals in these reasons without extensive explication:
Mr Benham Roohizadegan
The Applicant, employed from 3 July 2006 as State Manager for Victoria and later as Regional General Manager (incorporating Tasmania) from February 2015 until 18 May 2016, based in Melbourne.
Mr Adrian Di Marco
The Second Respondent, Executive Chairman and Chief Executive Officer at TechnologyOne, based in Brisbane.
Mr Di Marco stood down from the role of CEO on 23 May 2017.
Mr Boris Ivancic
Employed at TechnologyOne as Regional Sales Manager for the Victorian Region from February 2016 to January 2017. Appointed in a caretaker role as Regional Manager reporting to Mr MacDonald after Mr Roohizadegan’s termination.
Mr Lee Thompson
Employed as Operating Officer, Sales and Marketing at TechnologyOne from January 2014 to October 2014. Mr Roohizadegan’s direct report for that period.
Mr Martin Harwood
Employed as Operating Officer, Sales and Marketing at TechnologyOne from late 2014 to 11 April 2016. Mr Roohizadegan’s direct report for that period. For a period thereafter he shares responsibility for that role with Mr Stuart MacDonald.
Mr Stuart MacDonald
Employed as Operating Officer, Sales and Marketing at TechnologyOne from 11 April 2016 to 23 May 2017. Mr Roohizadegan’s direct report, until the latter is summarily dismissed by TechnologyOne.
Ms Rebecca Gibbons
Employed at TechnologyOne from August 2011 to May 2017 as HR Business Partner responsible for sales, marketing, corporate services, products and solutions.
Ms Kathryn Carr
Employed at TechnologyOne, initially as HR specialist from 16 May 2011 and then in the role of HR Director in the two years prior to her resignation on 31 March 2017.
Mr Edward Chung
Employed at TechnologyOne as Chief Operating Officer from February 2016 to 22 May 2017, and for 16 months prior to that as Operating Officer Products and Solutions, and prior to this appointment Operating Officer Corporate Services and Chief Financial Officer.
Currently employed by TechnologyOne as its Chief Executive Officer. Appointed to that role on 23 May 2017, replacing Mr Di Marco.
Mr Richard Metcalfe
Employed at TechnologyOne for approximately nine years as State Manager, Sales and Marketing for Tasmania. Appointed by Mr Harwood on 16 March 2015 also to serve as Regional Sales Manager for Victoria. His appointment in that respect is terminated on 8 February 2016.
Mr Peter Sutching
Employed at TechnologyOne as Products and Local Government General Manager: a position of equivalent seniority within TechnologyOne to that of Mr Roohizadegan.
83 To allow the Court to focus its reasons on the core issues in dispute without the need for prolix background, I will now set out a chronology of events. In the majority of instances there is no significant dispute as between the parties that the events recorded in this chronology occurred. Subject to further explication in these reasons and to the qualification below, what is stated in the chronology serves as the Court’s findings.
84 Where the chronology refers to an event in dispute as between the parties, it is qualified by being identified as a “claim”. The matters so identified are not findings. They are recorded so that the events in dispute, to be the subject of later discussion, can be placed within their historical context.
85 The chronology also identifies in bold text when the bullying complaints on which Mr Roohizadegan relies as the relevant exercise of his workplace rights are alleged to have occurred. It similarly identifies in bold text the occasion when, on the Respondents’ case as advanced, Mr Di Marco made his decision to terminate Mr Roohizadegan’s employment.
Mr Roohizadegan has one or more pre-employment interviews with Mr Di Marco (Ex A6, CB131-132).
3 July 2006
Mr Roohizadegan commences employment at TechnologyOne in the position of State Manager Victoria (Ex A6, CB131). His contract provides that his remuneration is to include a base salary package plus an incentive bonus “based upon Profit Before Tax (PBT) performance” to be “constituted from an agreed percentage of the Region’s PBT performance” (Ex A30, CB559).
20 October 2006
Mr Roohizadegan has a post-placement review. He raises concerns regarding not being entitled to share options (Ex A30, CB608-613).
6 December 2006, 15 December 2006, 19 January 2007
Mr Roohizadegan discusses his remuneration with Mr Di Marco. He requests share options in telephone conversations and sends follow-up emails (Ex A6, CB133; Ex A30, CB627-632).
7 March 2007
Mr Roohizadegan’s contract of employment is varied to increase his incentive payments (Ex A30, CB703-704).
In or around 9 November 2009
Mr Roohizadegan meets Mr Harwood, Mr Phare, and Mr Di Marco on the Gold Coast. Mr Roohizadegan claims that his entitlement to receive commissions for sales of the company’s Student Management Services (SMS) product is discussed. He claims that thereafter he “continued to make regular enquiries” regarding his incentive payments with TechnologyOne’s Executive Team (Ex A6, CB141-143).
26 November 2009
Mr Roohizadegan’s contract of employment is varied. As varied, it refers to his being entitled to an incentive based on “Profit Before Tax (PBT) performance for Business Unit 03 – Victoria – Service Delivery”. Increased rates of incentive for the future years are agreed (Ex A30, CB872-876).
17 June 2010
Mr Roohizadegan meets Mr Speed, Mr Phare, Mr Harwood and Mr Di Marco (Ex A6, CB142; Ex A30, CB938). Mr Roohizadegan claims his entitlement to revenue from SMS is discussed. Emails are sent to follow up (Ex A6, CB142; Ex A30, CB939-940).
Mr Roohizadegan’s daughter falls ill (T161).
Mr Roohizadegan advises TechnologyOne of his daughter’s illness (Ex A9, CB1084-1088).
Mr Roohizadegan’s daughter undergoes open heart surgery (T161).
8 April 2011
Mr Pye emails Mr Roohizadegan information regarding TechnologyOne’s commission policy. Mr Roohizadegan makes a handwritten note on a printed copy of that email. His note is: “Where is SMS?! Regional P&L?? told to wait … Year End!” (Ex A37, CB1173).
29 April 2011
Mr Roohizadegan emails Mr Pye regarding his concerns relating to his entitlement to incentives on SMS revenue (Ex A6, CB142; Ex A30, CB3027).
23 April 2012
Mr Roohizadegan claims that Mr Di Marco becomes angry with Mr Harwood after Mr Roohizadegan complains to him about Mr Harwood interfering in his business by stopping the termination of an underperforming employee (T169, lines 10-22).
24-25 April 2013
Mr Roohizadegan sends an email to Mr Di Marco requesting approval for share options to be granted to him without time restrictions. Mr Di Marco emails Mr Chung asking him to make arrangements (Ex A30, CB3519-3520).
Mr Chung sends a letter to Mr Roohizadegan making an offer to him of share options (Ex A30, CB3567-3571). Further offers are made in 2014 and 2015 (Ex A30, CB3899-3906).
29-30 September 2013
Email and telephone correspondence is exchanged between Mr Roohizadegan and Mr Di Marco concerning share options (Ex A6, CB134; Ex A30, CB3597-3598).
Mr Thompson becomes Mr Roohizadegan’s manager. Mr Thompson (twice) gives Mr Roohizadegan an “A rating” for his performance pursuant to TechnologyOne’s “Leaders Guide: ABC Ratings” performance assessment system based on performance against quota (T457; Ex A14, CB9636).
Mr Roohizadegan and Mr Harwood come into conflict regarding Mr Roohizadegan’s decision to escalate a customer complaint from Warrnambool Shire Council to Mr Di Marco. Emails are exchanged in that regard (Ex A30, CB3765-3733).
Mr Harwood is appointed as TechnologyOne’s Operating Officer for Sales and Marketing. He replaces Mr Thompson as Mr Roohizadegan’s direct report (Ex R65, CB473).
Mr Roohizadegan receives an email from Mr Pye advising him that he has been granted additional share options (Ex A6, CB134; Ex A30, CB4112-4113).
Mr Roohizadegan is promoted by TechnologyOne from the position of State Manager for Victoria to the position of Regional General Manager. The terms of his contract of employment are otherwise unaltered (Ex A30, CB4155-4156).
Mr Harwood appoints Mr Metcalfe to the position of Regional Sales Manager for Victoria, ostensibly to assist Mr Roohizadegan to manage his increased responsibilities.
Mr Roohizadegan claims that he is not consulted by Mr Harwood about Mr Metcalfe’s appointment or his suitability for that position (T177-187).
Mr Metcalfe reports not only to Mr Roohizadegan but also to Mr Harwood (T889).
16-17 June 2015
Ms Carr receives a complaint about Mr Roohizadegan’s approach to interviewing a candidate for employment, Ms Breen. Ms Carr copies that email to Mr Di Marco, who asks Mr Roohizadegan about his alleged behaviour. Mr Roohizadegan responds to explain his conduct (Ex R22, CB4246-4251).
15 June 2015
Mr Roohizadegan is made aware of a decision by Mr Metcalfe and Mr Harwood to terminate the employment of Mr Con Tsalkos. He claims that it had been his prior understanding that Mr Tsalkos was to be placed on a performance management plan (Ex A6, CB154-155).
18 June 2015
Mr Roohizadegan emails Mr Harwood, cc’ing Mr Di Marco, questioning Mr Harwood’s reasons for terminating Mr Tsalkos. He claims in his email that Mr Harwood had made that decision without any involvement on his part. He complains that he “cannot run [his] region in parallel with a fifth column” (Ex R12, CB4274-4275).
26 June 2015
Mr Di Marco responds to Mr Roohizadegan’s email of 18 June 2015. He states that he has “recruiters telling [him] they will not put good sales staff to us in Victoria” He informs Mr Harwood “the revolving door has to stop” and that he is holding him accountable (Ex R13, CB4304).
5 September 2015
Ms Carr begins to prepare a script and communication plan for Mr Roohizadegan’s termination based on conversations she had at that time with Mr Harwood (Ex R61, CB462-463; Ex R62, CB4349-4353). The reason(s) for that plan coming to nothing are not before the Court.
12 January 2016
Mr Harwood emails Mr Roohizadegan and Mr Metcalfe regarding their sales forecasts for Victoria, stating that the region “cannot go backwards for the fourth year in a row” (Ex R8, CB4677). Mr Roohizadegan replies, challenging the factual premise of Mr Harwood’s email (Ex R9, CB4763-4765).
13 January 2016
Mr Harwood emails Mr Roohizadegan (cc’ing Mr Di Marco) with respect to their email exchanges of the previous day. He says “this stuff can wait until you are feeling better and we can get together to figure out how we fix the problem” (Ex R16, CB4682).
20 January 2016
Mr Di Marco asks to meet Mr Harwood to discuss the issues arising out of Mr Harwood’s 12-13 January 2016 emails. Mr Harwood advises Mr Di Marco, inter-alia, that in his view Mr Roohizadegan has “lost his mojo”, and that if the situation does not improve he will “have to go” (Ex R33, CB4722).
21 January 2016
Mr Harwood rejects Mr Roohizadegan’s preferred candidate as the replacement for Mr Metcalfe as Regional Sales Manager for Victoria (T178-179; Ex A6, CB155-156). Mr Harwood and Mr Roohizadegan then agree that Mr Ivancic should be appointed to fill that role.
28 January 2016
Emails are exchanged between Mr Roohizadegan and Mr Harwood as to whether or not Mr Ivancic should be paid a guaranteed commission (Ex R18, CB4941-4946).
Mr Roohizadegan requests a meeting with Mr Di Marco to discuss not only that issue but also the performance of the Victorian region more generally. Mr Di Marco schedules a meeting with Mr Roohizadegan for 3 February 2016 (Ex A6, CB156; Ex A30, CB4871-4887, CB4812-4820, CB4839-4842).
1 February 2016
Mr Roohizadegan claims that Mr Harwood demands of him that he cancel his scheduled meeting with Mr Di Marco (Ex A11).
2 February 2016
Mr Roohizadegan claims Mr Harwood threatens him that if he does not cancel his meeting with Mr Di Marco, one of them will have to go (Ex A11).
3 February 2016
Mr Roohizadegan meets with Mr Di Marco in Brisbane (Ex A12, CB4938).
Mr Roohizadegan claims that he complained to Mr Di Marco about Mr Harwood having undermined him in his role in managing the Victorian region. He claims he informed Mr Di Marco that Mr Harwood had threatened him that if he did not cancel the meeting he had scheduled with Mr Di Marco, then one of them would have to go (T176, line 41-T177, line 14).
Mr Roohizadegan pleads (at paragraph  of his Further Amended Statement of Claim) that his doing so was an exercise of his workplace right to make a complaint in relation to his employment.
Mr Roohizadegan claims that Mr Di Marco then brought Mr Harwood into the meeting. He claims that Mr Di Marco told both of them that he thought the world of each of them (T117, lines 9-33). Mr Roohizadegan claims that after the meeting had concluded, Mr Di Marco spoke to him in private. He claims Mr Di Marco reassured him that he was doing nothing wrong (T180, lines 39-42). He claims Mr Di Marco explained that he had had to show Mr Harwood that he needed him as well (T180, lines 33-36). He claims Mr Di Marco asked him to build a relationship with Mr Harwood.
Mr Roohizadegan claims that when after their meeting he later had seen Mr Harwood, Mr Harwood had threatened to “scrutinise” him until he left TechnologyOne. He claims Mr Harwood said to him words to the effect that while Mr Roohizadegan may have won a battle, he would win the war (T182, lines 4-9).
Mr Ivancic replaces Mr Metcalfe in the position of Regional Sales Manager for Victoria (Ex A5, CB223).
11 February 2016
Ms Marie Phillips informs Mr Roohizadegan that he will not be permitted to attend the LG Professionals Conference run by TechnologyOne as he had routinely attended for many years previously (Ex A6, CB162).
24 February 2016
Ms Carr emails Mr Roohizadegan, cc’ing Mr Harwood, regarding a negative review about Mr Roohizadegan’s interviewing style that had appeared in “Seek”. Mr Roohizadegan responds to Ms Carr denying any impropriety (Ex R61, CB462; Ex R62, CB5015-5016).
31 March 2016
There are communications between Mr Roohizadegan and Ms Phillips regarding her having directed him not to attend the LG Professionals Conference. Those emails are later forwarded to Mr MacDonald in April, after his appointment (Ex A30, CB5491-5498).
11 April 2016
Mr MacDonald replaces Mr Harwood in the position of Operating Officer for Sales and Marketing. In that capacity Mr MacDonald becomes Mr Roohizadegan’s direct manager. Mr Harwood remains jointly responsible in that capacity for an initial overlap period. The length of the overlap period is in dispute, but extends to at least 27 April 2016 (T193, T362-363, T971, T1109).
12 April 2016
Mr Roohizadegan complains to Mr Pye about Mr MacDonald interfering with one of his responsibilities, being the management of relations with the Bass Coast Shire Council (a potential TechnologyOne customer in Victoria) (Ex A6, CB152; Ex A30, CB5749-5755).
13 April 2016
Mr MacDonald (in a phone conference in which Mr Harwood also participates) tells Mr Roohizadegan to not attend a demonstration by TechnologyOne to the Bass Coast Shire Council (Ex A6, CB163-164; Ex R56, CB438-439).
Mr Roohizadegan expresses concern regarding that instruction in an email sent to Mr Macdonald, Mr Harwood and Mr Di Marco. Mr Roohizadegan also complains in his email that Ms Phillips and Mr Peter Sutching are marginalising him (Ex R19, CB5355-5356).
14 April 2016
The Bass Coast Shire demonstration takes place. As instructed, Mr Roohizadegan does not attend (Ex R47, CB5421-5427). TechnologyOne’s presentation is undertaken by Mr Dugina.
18-19 April 2016
Ms Gibbons visits TechnologyOne’s Melbourne offices.
Ms Gibbons has a series of meetings (claimed by her to be unscheduled and unplanned) with a number of TechnologyOne’s Victorian sales staff. All of those meetings take place outside the company’s Melbourne offices. Several of the sales staff with whom she meets make complaints about Mr Roohizadegan. Ms Gibbons takes no notes during those conversations (T715-716).
20 April 2016
Ms Gibbons meets with Mr Roohizadegan. Ms Gibbons does not inform him that he has been the subject of complaints by some members of TechnologyOne’s Victorian sales team.
Mr Roohizadegan tells Ms Gibbons that he is being marginalised by, inter-alia, Ms Phillips and Mr Sutching (T183-184; T725). Mr Roohizadegan claims that Mr Gibbons agrees that Mr Sutching’s conduct amounts to bullying (T184; T725). Mr Roohizadegan tells Ms Gibbons he is considering taking legal action (T184).
Mr Roohizadegan pleads (at paragraph [18A] of his Further Amended Statement of Claim) that this was a second instance of his exercising his workplace right to make a complaint in relation to his employment.
Following their meeting Ms Gibbons sends Mr Roohizadegan an email including a link to TechnologyOne’s bullying policy (T726; Ex A80).
Mr Roohizadegan then sends an email to Mr MacDonald expressing concern that Ms Phillips and Mr Sutching are preventing him from doing his job (Ex A30, CB5491-5498). He receives no response (Ex A6, CB163).
21 April 2016
Ms Gibbons sends two emails to Mr MacDonald. The first of Ms Gibbons’ emails attaches a “breakdown of profit, inc licence fees, consulting etc for each region”. The second provides him with her advice regarding Mr Roohizadegan’s earnings since FY13. She reports to Mr MacDonald that “whilst profit has increased, the licence fees in the region have decreased.” Ms Gibbons attaches Mr Roohizadegan’s resume to her second email (Ex A65, CB5558-5568; Ex A66, CB5569-5570).
22 April 2016
Mr Roohizadegan refers to a forthcoming meeting with Melbourne University he is planning to attend. Mr MacDonald responds that he thought only he and Mr Harwood would be taking that meeting and that he would “prefer if in the future we follow my direction” (Ex A6, CB166; Ex A30, CB5656-5661).
24 April 2016
Ms Gibbons sends an email to Ms Carr to inform her about the complaints made against Mr Roohizadegan by the sales staff of TechnologyOne with whom she had met in Melbourne over the period of 18-20 April 2016. Ms Gibbons’ email also explains that Mr Roohizadegan had told her he was considering making a bullying claim and taking legal action against Peter Sutching (Ex R41, CB431; Ex R42, CB5576-5577).
25 April 2016
Ms Carr forwards Ms Gibbons’ email of 24 April 2016 to Mr Di Marco, copying in Mr Chung and Mr Harwood (Ex R62, CB5584). She then forwards it to Mr MacDonald (Ex R58, CB5595).
Mr Di Marco claims he was “flabbergasted” upon receiving that email (T518). His evidence is that it was one of the worst emails he had received in business in 35 years (T518) and that upon reading it he had decided that Mr Roohizadegan had to go (T519).
On the Respondent’s case (Respondents’ Closing Submissions paragraph ) Mr Di Marco decided to dismiss Mr Roohizadegan from his employment with TechnologyOne at this time.
Mr Di Marco requests that Ms Carr set up a meeting of TechnologyOne’s Executive Team to discuss Ms Gibbons’ email (Ex R58, CB5595-5597). She does so. Mr MacDonald emails Ms Carr in response asking whether they can meet beforehand to “sync our message” (Ex R58, CB5595).
Mr Roohizadegan sends an email to Mr MacDonald querying why he has been instructed not to attend his meeting with Melbourne University. His email complains about being bullied. He asks “I need to understand what my job is please” (Ex R21, CB5673-5697).
Mr Roohizadegan pleads (at paragraph  of his Further Amended Statement of Claim) that this is the third instance of his exercising his workplace right to make a complaint in relation to his employment.
Mr Roohizadegan emails Mr Di Marco to complain about decisions being made behind his back. He tells Mr Di Marco about the instruction he has been given by Mr MacDonald not to attend the meeting with Melbourne University (Ex A77, CB5656-5661).
Mr Roohizadegan pleads (at paragraph  of his Further Amended Statement of Claim) that this is the fourth instance of his exercising his workplace right to make a complaint in relation to his employment.
26 April 2016
Mr Di Marco replies to Mr Roohizadegan’s email of the previous evening saying “leave it with me to talk with Stuart [MacDonald]” (Ex A77, CB5656).
TechnologyOne’s Executive Team assembles to discuss the complaints Ms Gibbons has reported as having been made by staff in the Melbourne office about Mr Roohizadegan. Ms Carr attends as an invitee.
Ms Carr’s evidence is that Mr Di Marco commences the meeting by stating “This guy has to go” (T1029, line 10).
Ms Gibbons is called into the meeting to speak to her email. She does so and, after answering questions, leaves.
Ms Carr advises the Executive Team that TechnologyOne should not act against Mr Roohizadegan on the basis of mere allegations. There ought to be an investigation of any complaints made against him (T1027).
Ms Carr’s evidence-in-chief is that Mr Di Marco responds that he doesn’t want there to be any investigation (T1027).
At the conclusion of the meeting Mr MacDonald is authorised to terminate Mr Roohizadegan’s employment but is instructed he is not to do so before Mr Roohizadegan has concluded, inter-alia, a financially significant deal with La Trobe University on which he is working (T530-531).
After the meeting of the Executive Team Ms Carr begins to update the communications plan for Mr Roohizadegan’s termination that she had commenced drafting at Mr Harwood’s request in September 2015 (Ex R61, CB463).
27 April 2016
Mr MacDonald visits the Melbourne offices of TechnologyOne and meets Mr Roohizadegan, both for the first time (T974, T978).
3 May 2016
TechnologyOne’s Executive Team convenes for a second time to discuss Mr Roohizadegan’s future (Ex R64). Mr Di Marco queries whether dismissing Mr Roohizadegan is the right thing to do.
Ms Carr repeats her advice that TechnologyOne should investigate Mr Roohizadegan’s allegations (T1069, lines 41-42). Her advice is again rejected.
Mr Di Marco suggests that Mr Roohizadegan could be given an alternative role within TechnologyOne as a “strategic advisor” (T1031). However, he receives little or no support for that proposal.
4 May 2016
Mr Roohizadegan learns that Mr MacDonald has arranged to meet with La Trobe in his absence. Mr Roohizadegan sends an email to Mr MacDonald (cc’d to Mr Di Marco and Mr Harwood) objecting to his doing so on the basis that to bring new people into the process at such a late stage could compromise the big deal on which he was working (Ex A6, CB168; Ex A30, CB5881-5891).
6 May 2016
Ms Gibbons tells Mr Roohizadegan that he requires approval from HR to purchase Gold Class movie tickets to reward his sales staff (Ex A30, CB6002). Mr Roohizadegan escalates his concern about that decision to Mr Di Marco. Mr Di Marco intervenes, stating that Ms Gibbons requiring Mr Roohizadegan to obtain such approval is “plain stupid” and “embarrassing” (Ex A6, CB168; Ex A30, CB6003-6007).
At a meeting attended by a subset of TechnologyOne’s senior staff, Mr Di Marco reviews the draft communications plan for Mr Roohizadegan’s termination on which Ms Carr is working. He determines that it is not suitable for various reasons, including that the compensation plan is not fair enough. He directs that the plan, which up to that time had had Mr MacDonald terminating Mr Roohizadegan, should be changed so that he would be responsible for its implementation (T961, T981).
9 May 2016
Mr Roohizadegan and Mr Ivancic jointly forecast significantly increased sales for the Victorian region for the then current financial year during a sales forecast teleconference with Mr MacDonald. Mr Roohizadegan and Mr Ivancic each claim that Mr MacDonald becomes angry after hearing that news. Mr Roohizadegan claims Mr MacDonald swears at them, saying “you fucking two, get your forecasts together” (T196).
12 May 2016
During an otherwise routine meeting of TechnologyOne’s State Managers in Brisbane, Mr Roohizadegan is contacted at 12:14pm by text by La Trobe University. He arranges to take a call at 2:00pm (Ex A18, CB6343-6344).
Mr Roohizadegan claims that he asks Mr MacDonald to participate in that call, but that Mr MacDonald rebuffs him stating “Screw you Benham, I’ve seen your email” (T204).
Mr Roohizadegan takes the call from La Trobe (T206). He claims to have been told that La Trobe wanted a $7m reduction in the contract price they had not yet finalised. (T206). Mr Roohizadegan claims that he responded that he had no authority to make any concessions and that in any event a reduction of $7m was impossible. Mr Roohizadegan claims he was informed that a $1m reduction was the minimum La Trobe would accept (T207).
Mr Roohizadegan sends an email to the members of TechnologyOne’s Executive Team (Ex R23, CB6361) to inform them of La Trobe’s demand.
Shortly afterwards Mr MacDonald confronts Mr Roohizadegan. Mr MacDonald tells Mr Roohizadegan that he had instructed him not to negotiate with La Trobe. Mr Roohizadegan denies being given any such instruction. Moreover, he had not negotiated anything (T211). Mr Roohizadegan claims that Mr MacDonald abused, bullied and swore at him (T211-212).
Mr Roohizadegan flies home to Melbourne in distress.
13 May 2016
Mr Roohizadegan emails Mr Chung (Ex A56, CB6552) and Mr Di Marco (Ex A30, CB6411-6427) to complain about his having been bullied by Mr MacDonald.
Mr Roohizadegan pleads (at paragraph  of his Further Amended Statement of Claim) that his complaint to Mr Chung is the fifth instance of his exercising his workplace right to make a complaint in relation to his employment.
Mr Roohizadegan pleads (at paragraph  of his Further Amended Statement of Claim) that his complaint to Mr Di Marco is the sixth instance of his exercising his workplace right to make a complaint in relation to his employment.
Mr Di Marco responds early in the morning by email and tells Mr Roohizadegan that such behaviour is unacceptable (Ex A30, CB6411-6427). Mr Di Marco then makes two telephone calls to Mr Roohizadegan (T216-217).
Mr Di Marco later emails Mr Roohizadegan, cc’ing in Mr Chung and Ms Carr, informing him that Mr MacDonald has been counselled. He advises Mr Roohizadegan that he should relax and enjoy the weekend. Mr Di Marco expresses the hope that everyone would “start afresh” on Monday (Ex A24, CB6431).
Mr Roohizadegan obtains a medical certificate stating that he is unfit for work until 17 May 2016 inclusive (Ex A25, CB6346).
14 May 2016
Mr Roohizadegan emails Mr Di Marco. He advises Mr Di Marco that he is “still not well, on medication based on doctor’s advice, but did not want this to impact my work” (Ex A6, CB1678; Ex A30, CB6579-6584).
15 May 2016
Mr Roohizadegan sends a second email to Mr Di Marco complaining about MacDonald’s behaviour. He tells Mr Di Marco that he has “completely fallen apart” as a result. He attaches a medical certificate stating that he is unfit for work. He asks what “disciplinary action” Mr Di Marco proposes to take (Ex R26, CB6665-6667).
Mr Roohizadegan pleads (at paragraph  of his Further Amended Statement of Claim) that his complaint to Mr Di Marco is the seventh instance of his exercising his workplace right to make a complaint in relation to his employment.
16 May 2016
Mr Di Marco sends an email to Mr Roohizadegan advising him that Ms Carr will investigate his complaint about Mr MacDonald and that in the meantime both he and Mr MacDonald should go back to work and resume their relationship (Ex R26, CB6664).
Mr Roohizadegan is then sent a calendar invitation to attend a meeting in Brisbane with Mr Di Marco on 18 May 2016 at 10:30am. In explanation, Mr Di Marco sends an email to Mr Roohizadegan stating “I have allocated 5 hours for our meeting Wed so we are not rushed. If it finishes earlier that’s okay” (Ex R38, CB6669-6670).
Ms Carr rings Mr Roohizadegan to ask him about his bullying complaint against Mr MacDonald (Ex CB465; T1078).
17 May 2016
Mr Di Marco meets with Mr Chung. Mr Di Marco raises whether TechnologyOne is doing the right thing in terminating Mr Roohizadegan’s employment on the basis only of hearsay (T653; Ex R68, CB536).
Ms Carr speaks, inter-alia, to Mr Chung, Mr MacDonald and Mr Pye in respect of Mr Roohizadegan’s bullying allegations against Mr MacDonald. Ms Carr claims she then reported (orally) to Mr Di Marco that while Mr Roohizadegan and Mr MacDonald had had a robust conversation on 12 May 2016 what had then occurred did not amount to bullying.
Ms Carr continues to finalise arrangements for Mr Roohizadegan to be dismissed the following day (Ex A57, CB7078-7086).
Mr Roohizadegan flies to Brisbane.
18 May 2016
Mr Di Marco summarily terminates Mr Roohizadegan’s employment at TechnologyOne at approximately 10.00am. Mr Roohizadegan is given a deed of release (Ex R29, CB7164-7170) to consider. He is informed it is non-negotiable (T228; T644).
Mr Di Marco emails all TechnologyOne staff at 11.00am to advise them that Mr Roohizadegan’s employment has been terminated (Ex R28, CB7148).
Mr Roohizadegan is profoundly shocked by those events.
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.
87 While adducing evidence viva voce may be accepted to have advantages over the giving of evidence by way of affidavit where the credit and reliability of recall must be assessed, it too has risks and weaknesses. It is in the nature of a trial, particularly one conducted some years after the events in dispute occurred, that a witness’s memory can - and, as judicial experience shows, not infrequently does - prove fallible. A court should therefore be cautious of attributing dishonesty to a witness who gives evidence which is not accepted.
88 Entirely without guile, a witness may confidently recall what they said, saw or did at the time of an event in terms that cannot be true. A belief that they must have acted or spoken in a particular way can become their actual, but false, recall. Further, because human memory is not as reliable as we would wish, this risk of firm but reconstructed memory increases as time passes. Contemporaneous written records, to the extent they exist, therefore generally provide a more solid basis for judicial fact-finding than human memory.
89 In this proceeding a number of important events were the subject of email exchanges or referred to in contemporaneous documents. Where the providence of such a document is not in dispute I have proceeded on the basis that - save where good reasons have been advanced for reaching a different conclusion - the Court should prefer what a contemporaneous document reveals, and any inferences open to be drawn on that basis, over the contrary present recall of a witness.
90 That acknowledged, there are a number of critical alleged events and conversations upon which this case potentially turns which were entirely undocumented. In such instances the Court cannot avoid basing its findings on contested evidence given by witnesses as to what was, or was not, said or done in particular circumstances: having regard to the inherent or contextual plausibility or implausibility of the evidence they gave, and the Court’s assessment of their credit.
91 Counsel representing the parties helpfully provided detailed written submissions with respect to the credit findings they respectively submitted the Court is entitled to, and should, make with respect to a number of witnesses who gave evidence in this proceeding.
92 It is convenient at this point first to address the evidence given by four of the most critical witnesses in this proceeding, and the parties’ respective submissions as to their credit. I proceed on that basis because in most regards, the remaining evidence is of more marginal relevance. 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. Moreover having regard to the principles governing the construction of contracts that bind this Court, little of that evidence is dispositive or even relevant in regard to Mr Roohizadegan’s claim in contract.
93 Mr Roohizadegan gives evidence that in 2006, in the course of pre-contractual discussions between himself and Mr Di Marco, he had been assiduous to seek and obtain confirmation that the incentive bonus provided for in the contract he ultimately signed was to apply to his benefit in respect of all revenue generated by TechnologyOne in the Victorian region without exception. In cross-examination, Mr Roohizadegan explained that he had sought that assurance because he had left his previous job after a dispute between himself and his former employer in respect of the scope of such a clause. He had not wanted any such problems to arise in his new role (T262, lines 1-8).
94 His contract, into which he had entered on 3 July 2006 after those discussions, provided that his remuneration was to include a base salary package plus an incentive bonus “based upon Profit Before Tax (PBT) performance” to be “constituted from an agreed percentage of the Region’s PBT performance”.
95 It is uncontentious that that contract was varied on 7 March 2007 by an agreement which set a schedule of revised “agreed percentages” upon which his incentive bonus was to be based for particular periods into the future.
96 By a further agreement dated 26 November 2009, Mr Roohizadegan’s contract of employment was varied for a second time. As varied, it refers to his being entitled to an incentive based on “Profit Before Tax (PBT) performance for Business Unit 03 – Victoria – Service Delivery”. The variation increase the rate of that incentive (7.5% from 1 October 2009 to 30 September 2010 and then 7% from 1 October 2010 onwards) above that which would have applied under the existing contract. The terms (but not the construction) of the contract as varied are not in dispute.
97 Mr Roohizadegan gave evidence that from the outset of his employment with TechnologyOne, some TechnologyOne products sold in Victoria that had been directly marketed or serviced from Brisbane had been included as part of his PBT performance. In respect of those sales, he had routinely received incentive payments.
98 However, his evidence is that he had also been contractually entitled to – but did not receive – incentive payments in respect of his PBT performance revenue from certain other TechnologyOne products sold in Victoria: principally Student Management Services (SMS) but later also “Plus Services”, and certain financially less significant transactions involving Victorian Legal Aid and Victorian Red Cross. He pleads that he is therefore entitled to damages for breach of his contract.
99 Mr Roohizadegan gave evidence that he had complained regularly to TechnologyOne, both before and after the variation to his contract on 26 November 2009, about not being paid incentives due to him in respect of such sales. His evidence was that he first raised that subject with Mr Di Marco during a discussion with Mr Harwood, Mr Phare, and Mr Di Marco that took place at the Gold Coast around 9 November 2009 (Ex A6, CB141-CB143).
100 It is uncontentious that on 8 April 2011, Mr Pye sent an email to Mr Roohizadegan to explain TechnologyOne’s commission policy. I infer that this was in response to a complaint or complaints that Mr Roohizadegan gave evidence of having made, concerning what he asserted to be the partial non-payment of the incentives to which he was entitled. Mr Roohizadegan’s evidence is that he made a contemporaneous handwritten note on a printed copy of Mr Pye’s email: “Where is SMS?! Regional P&L?? told to wait … Year End!” (Ex A37, CB1173).
101 Mr Roohizadegan’s evidence is that notwithstanding his complaints in that regard, he worked assiduously in TechnologyOne’s interests from when he was first employed. He had built the Victorian region up from small beginnings to one where his incentives were calculable on profit and loss before tax of approximately $45 million.
102 I have set out above at - the substance of Mr Roohizadegan’s evidence as to his distress from September 2010 onwards after his daughter became ill with Kawasaki disease. I need not repeat that discussion. It is sufficient that I restate that, for the reasons I gave, I accept that Mr Roohizadegan found refuge in his work and that by reason of the compensation mechanisms he adopted his work performance was not materially adversely affected by his private suffering.
103 Mr Roohizadegan’s evidence is that Mr Di Marco always encouraged him to run the Victorian region as if it were his own business. He was never denied direct access to Mr Di Marco. He had understood that Mr Di Marco thought well of him. He was the recipient of the Chairman’s Award in each of 2012, 2013 and 2014. That was an award made by Mr Di Marco and given to only a small number of TechnologyOne’s highest performing staff. His evidence is that having regard to his success in building TechnologyOne’s business, he pressed Mr Di Marco for additional financial recognition by way of giving him an equity interest in the company. Mr Di Marco had authorised that to happen. He had been granted share options in TechnologyOne in both 2013 and 2015.
104 His evidence is that although he personally played a significant part in making sales and building the business of TechnologyOne in Victoria, his role was not confined to securing new sales. Consistently with his contract, he had been responsible for the profitable management of the whole of the operations of TechnologyOne in Victoria.
105 His evidence is that in February 2015 he was promoted by TechnologyOne from the position of State Manager for Victoria to the position of Regional General Manager. His promotion to that position is not in dispute, although the Respondents submit that that was simply an aspect of a reorganisation within TechnologyOne in which State Managers in all of the more economically significant regions such as Victoria and New South Wales were given additional responsibilities.
106 His evidence is that he worked well and constructively with his first two direct reports, Mr Phare and Mr Thompson. He accepted there had been some initial tension when Mr Thompson replaced Mr Phare. However, his evidence was that he had accepted Mr Thompson’s mentoring. They had thereafter worked extremely well together.
107 His evidence is that he encountered significant difficulties only after Mr Harwood replaced Mr Thompson as TechnologyOne’s Operating Officer for Sales and Marketing. Those difficulties stemmed from his objections to Mr Harwood making unilateral decisions affecting his management of the Victorian region.
108 I note however that Mr Roohizadegan’s evidence is that even before he had become his direct report, Mr Harwood had to a limited extent intruded into his management of his region. His evidence is that in 2012 Mr Harwood had interfered in that way by intervening to prevent the termination of an under-performing employee. Mr Roohizadegan’s evidence is that Mr Di Marco became angry with Mr Harwood when Mr Roohizadegan complained to him about that interference (T169, lines 10-22).
109 Mr Roohizadegan’s evidence is that in March 2015, after Mr Harwood had become his direct manager, Mr Harwood had appointed Mr Metcalfe to the position of Regional Sales Manager for Victoria: ostensibly to assist him to manage his increased responsibilities in the position of Regional General Manager. However, he had done so without consulting him. Mr Roohizadegan had complained to Mr Harwood that Mr Metcalfe was unsuitable for that position.
110 Mr Roohizadegan’s evidence is that at around the same time (in June 2015), Mr Harwood moved to terminate the employment of one of his sales team: Mr Con Tsalkos (Ex A6, CB154-5). He had opposed that decision, his prior understanding having been that Mr Tsalkos was to be placed on a performance management plan and given a chance to improve. He gave evidence that the same had occurred in respect of another employee, Mark Loler (T320).
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).
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).
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”.
121 His evidence is that he had told Mr Di Marco about Mr Harwood having vetoed Mr Pantano, who had been his first choice for the position of Regional Sales Manager. Their discussion had then turned to whether Mr Ivancic (who both Mr Di Marco and Mr Harwood agreed was suitable to be appointed), should be guaranteed a commission or not.
122 Mr Roohizadegan’s evidence is that in the course of opposing offering Mr Ivancic a guaranteed commission for six months, he took the opportunity to raise with Mr Harwood and Mr Di Marco his own unpaid incentives for SMS by TechnologyOne to TAFE and universities in Victoria as were contractually due to him (T179, lines 20-37; T361, lines 15-23).
123 Mr Roohizadegan’s evidence is to the effect that Mr Di Marco agreed with Mr Harwood that Mr Ivancic should be offered a guaranteed commission. Mr Roohizadegan gave the following evidence as to the events that then transpired (T180-181):
Mr Roohizadegan: I said to – to Mr Di Marco and Mr Harwood. I said, “Okay. We go with Boris. We give him six months guaranteed commission. But if things doesn’t work out for my region, please do not hold me accountable for your decision.” And then Mr Harwood said “Behnam –” I – I remember he put his finger at me, “Behnam”, like this – “Behnam, you are responsible for Victoria. I hold you accountable, even though we are making decisions for you to have Boris or someone else as your sales manager.” And he raised his voice, similar to the way I tried to explain, your Honour, with a finger at me like this. And Mr Di Marco got a bit upset. I could see that. And then Mr Di Marco turned to Martin and said, “Martin, get out of my house. Martin, get out of my office now. I want to have another five minutes with Behnam alone.”
Mr Tracey: And what happened next?
Mr Roohizadegan: And then when Martin was leaving the office, his face was very red. He just gave me a look as he was leaving the office, and then Mr Di Marco turned to me, he said, “Buddy, I know how good you are. You do good work for me. You escalate things to me. I love the way you do things. Continue as you are, but I want you to know that I had to show that I’m on the side of Martin too because I need him as well as I need you”, some words to that effect. “Continue the way you are.” I asked him – at the end of that conversation, I asked him – because by that time I was just thinking, “Am I doing something wrong?” And – and I asked Mr Di Marco “Adrian –” I had a good relationship with Adrian, and I said, “Adrian, do I need to change anything?” And he said, “Not at all. Continue as you are. I’m happy you bring your prospects and your executives to Brisbane to see me. Continue as you are and carry on as you are.” And – and then I said to him before I left “So we – we had –” he asked me about my daughter, by the way, as well, around that time, “How is your daughter?” I said, “Well, it’s difficult, but I’ve focused my work on my – I’ve focused my life on my work.” And then – and before I left the room, I – I actually thanked Adrian. I said “Adrian, I would like to thank you that – and I appreciate –” I said, “I appreciate you take the time to see me one-on-one whenever I come to – whenever I come to – to Brisbane.” And then he turned back to me and he said, “Behnam, I am the one who should be thanking you. I’m the one who should be thanking you.” And I felt a bit embarrassed because this is the chairman of the company, and he – he – he said to me, “I’m the one who should be thanking you.” And I – I – I remember when I came back from the Brisbane trip I asked my wife, I said, “Why he’s thanking me?” I didn’t get it. And my wife said, “He’s effectively telling you that he appreciates that you tell him things, your – your transparency”, because I – I felt – when he said, “I’m the one – I should be thanking you”, I felt embarrassed. You know, I just – I just can’t explain the feeling I felt.
Mr Tracey: Okay. So that meeting between you and Mr Di Marco then ends?
Mr Roohizadegan: Yes, he said something else as well. I’m sorry, I just remembered. He – he said, “Behnam, go and build a relationship with Martin.”
His Honour: Sorry, he said?
Mr Roohizadegan: He – Adrian said to me, “Go and build a relationship with Martin.”
Mr Tracey: Okay?
Mr Roohizadegan: And I said, “I don’t have any issues with Martin.”
124 Mr Roohizadegan’s evidence is that there had been no opportunity for him to “go and build a relationship” with Mr Harwood. His evidence is that later the same day, Mr Harwood had spoken to him using words to the effect that Mr Roohizadegan might have won a battle, but that he would win the war. Mr Harwood told Mr Roohizadegan he was going to “scrutinise” him until he left TechnologyOne (T182, line 35- T183, line 6).
125 Mr Roohizadegan’s evidence is that he was subsequently informed that Mr MacDonald would replace Mr Harwood from 11 April 2016 in the position of Operating Officer for Sales and Marketing. In that capacity, he would become Mr Roohizadegan’s new direct report. Mr Roohizadegan’s evidence however is that he was advised that Mr Harwood was to remain jointly responsible in that position for an overlap period. That this was so does not appear to be contentious (T539, line 23).
126 It is also 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.
128 A version of Mr Roohizadegan’s alleged complaints, specifically referring to his considering legal action against Mr Sutching for bullying, was included in Ms Gibbons’ email to Ms Carr of 24 April 2016. It is uncontentious that Ms Carr later sent a copy of Ms Gibbons’ email to Mr Di Marco and the members of TechnologyOne’s executive.
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).
131 His evidence is that the next morning (26 April 2016) Mr Di Marco replied to his email saying “leave it with me to talk with Stuart [MacDonald]” (Ex A77, CB5656).
132 Mr Roohizadegan then gave evidence that during a phone conference in which he and Mr Ivancic jointly participated with Mr MacDonald on 9 May 2016, they gave an updated forecast of significantly increased sales for the Victorian region in respect of the current financial year (as noted above, I interpolate that it is uncontentious that TechnologyOne operated on a financial year ending 30 September). His evidence is that Mr MacDonald became angry after hearing that news. His evidence is that Mr MacDonald swore at them and told them: “You fucking two, get your forecasts together” (T196). Mr Roohizadegan’s evidence is that the revised sales forecasts he and Mr Ivancic provided to Mr MacDonald on 9 May 2016 had made TechnologyOne aware that it was in prospect that the Victorian region would increase its revenue in the 2016 financial year.
133 Mr Roohizadegan’s evidence is that on 12 May 2016 he attended a routine meeting of TechnologyOne’s State Managers in Brisbane. His evidence is that during the morning session of that meeting he had been contacted on his mobile phone by Mr Nikoletatos of La Trobe University. Mr Nikoletatos told him that La Trobe had issues with the deal Mr Roohizadegan had understood was close to settling. Mr Roohizadegan’s evidence is that they arranged to speak later that day at a more convenient time.
134 Mr Roohizadegan’s evidence is that he then asked Mr MacDonald to participate in that postponed call. Mr MacDonald had rebuffed him stating “Screw, you, Benham, I’ve seen your email”. Mr Roohizadegan gave evidence that at the time, he did not know to what email Mr MacDonald was referring (T204). Mr Roohizadegan’s evidence was that in view of Mr MacDonald’s response, he had arranged for Mr Paul James to be present when he returned the call from La Trobe as a “silent listener” telling him he was “scared or frightened if something goes wrong with Latrobe University, Stuart MacDonald is going to blame me for it” (T206). When he and Mr Nikoletatos spoke later in the day Mr Roohizadegan’s evidence is that Mr Nikoletatos had told him that La Trobe wanted a $7m reduction in the contract price Mr Roohizadegan had earlier negotiated.
135 His evidence is that he had told Mr Nikoletatos that he had no authority to make any concessions, and that in any event a reduction of $7m was impossible. Mr Roohizadegan’s evidence is he had asked Mr Nikoletatos what La Trobe’s bottom line was and that, in response, Mr Nikoletatos had told him that a $1m reduction was the minimum La Trobe would accept. He had told Mr Nikoletatos that he had no authority to accept such a reduction but would convey his message to Mr Di Marco and the TechnologyOne executive.
136 Mr Roohizadegan’s evidence is that he immediately communicated La Trobe’s demand for a $1m reduction to the members of TechnologyOne’s Executive Team by email.
137 His evidence is that after he did so, Mr MacDonald demanded to see him. Mr Roohizadegan’s evidence is that when they met Mr MacDonald claimed that he had told Mr Roohizadegan not to negotiate with La Trobe. His evidence is that he denied being given any such instruction. He also sought to clarify he had not negotiated anything. He was simply conveying La Trobe’s altered position.
138 Mr Roohizadegan’s evidence is that during that discussion Mr MacDonald abused, bullied, and swore at him. His evidence is that he made a file note later the same day in which he recorded the events that had happened (T214). His file note (Ex A21, CB6346-6348) is as follows:
Angilika called me on my mobile, asking if I had left. I said I was downstairs and she said Stuart [MacDonald] wants to see me. I said okay and went upstairs. Stuart took me to Gareth Pie office and said he wanted Gareth to be a witness and started shouting at me with very loud voice “Should I tell you to negotiate with LaTrobe University or not?” “Why did you offer them $1m discount?” You cannot do that Benham. I said I didn’t negotiate, the customer wanted $7m discount and I said we had provided BAFO etc, but as the customer insisted (Peter), I said $7m will not be approved by TechnologyOne. What does he want his bottom line discount and Peter said $1m and this is what I have communicated at no time did I say that I have the authority to give $1m discount and I hope to take that to my Executive and Adrian.
Stuart said he didn’t accept that and that was negotiation. I said I didn’t agree to it. Stuart then shouted that you F… Benham you don’t understand I replied English is not my first language and I have not agreed to anything with the customer, and Stuart does not have a right to use bad language on me and shout at me. Stuart replied that he can use any language and swearing that he wants, and he can say and do anything that he likes and I cannot do anything about it. I replied no he could not swear, and abuse me and use bullying tactics on me and I said if there was nothing else.
I was going to leave Gareth [Pye’s] office to which Gareth & Stuart said fine and I went to Edward [Chung’s] office and told Edward about what had happened in Gareth office & Stuart swearing at me, etc. Edward said my email a bout La Trobe was good, he didn’t see anything wrong with it and seemed very surprised that Stuart had acted that way towards me.
I came out still shaken, bewildered and very upset downstairs to meet with Boris [Ivancic], Steve, Jerry and Mark … David Van De .. Boris and I caught a taxi to the airport.
139 Mr Roohizadegan’s evidence is that he flew home to Melbourne that evening in a state of distress.
140 Mr Roohizadegan’s evidence is that the following morning (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.
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).
146 Mr Roohizadegan’s evidence is that in the morning of 16 May 2016 he received an electronic diary invitation to attend a meeting in Brisbane with Mr Di Marco on 18 May 2016 at 10:30am. The other attendees invited included Mr MacDonald (Ex A6, CB178-177; Ex R30, CB6669-6670). Mr Roohizadegan’s evidence is that shortly after he received that invitation, Mr Di Marco sent him an email stating “I have allocated 5 hours for our meeting Wed so we are not rushed. If it finishes earlier that’s okay” (Ex R38, CB6670).
147 His evidence is that he had responded to Mr Di Marco to the effect that he was still unwell but that if Mr Di Marco really wanted him to attend such a meeting he would do so: notwithstanding that he was unwell.
148 Mr Roohizadegan’s evidence is that Ms Carr rang him the same day (16 May 2016). He explained he still was unwell but nonetheless provided her with a brief account of the events that had transpired.
149 His evidence is that on the faith of his understanding that Mr Di Marco had set aside five hours to review those events, Mr Roohizadegan flew to Brisbane to participate in the meeting that Mr Di Marco had asked him to make himself available to attend.
150 His evidence is that when he was shown into Mr Di Marco’s office at 10:00am he had observed that Mr MacDonald was not present. His evidence was that after one of the attendees (he cannot recollect who it was) asked him a perfunctory question about his health as he was entering the room, to which he had replied he was still unwell and attending contrary to his doctor’s advice, Mr Di Marco said he would get straight to the point. He was terminating Mr Roohizadegan’s employment at TechnologyOne “with immediate effect” (T226). Mr Roohizadegan’s evidence is that he was given a proposed deed of release (Ex R29, CB7164-7170) to consider. Mr Di Marco told him that what was in that deed was non-negotiable.
151 Mr Roohizadegan’s evidence is that he had felt that his world had ended (T228).
152 His evidence is that his dismissal left him feeling suicidal. When leaving TechnologyOne’s offices he had been in a noticeably distressed state. His evidence is that when he had been asked what had happened, he had replied that he had been dismissed. He had said, and it was his then state of mind, that he intended to throw himself off a bridge.
153 His evidence is that the psychological impact of his dismissal on him was profound. It is the cause of his now being unfit to seek or obtain other employment.
154 Whether the Court is entitled to conclude his dismissal is the cause of that circumstance is the subject of contested expert evidence, to which I will return in due course.
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 -, 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.
156 With respect to the credit of Mr Roohizadegan, the Applicant submits as follows:
7.5 Mr Roohizadegan gave evidence truthfully and in a manner that was consistent with his witness statements (unlike some of the Respondents’ witnesses). There is no reason not to accept the evidence given by Mr Roohizadegan.
7.6 Mr Roohizadegan had a very good recollection of events and did not need to be shown documents in order to prompt him. Further, despite the recollection of events resulting in apparent emotional distress, Mr Roohizadegan remained forthcoming in his evidence.
6.33 Putting to one side the Applicant’s extensive elaboration of matters, which is wholly explicable and understandable given his psychiatric condition, he was a very impressive witness indeed. His evidence survived days of cross-examination intact.
6.34 The Respondents’ attempts to suggest that the Applicant was honest [sic] in giving his history to the psychiatrists have failed. Inconsistencies in what he might have told one doctor (at one point) and another doctor at another stage are explicable by what he was being asked by the doctor, what the Applicant’s state of mind was at the time of a consultation and what a particular doctor asked him to speak about. Indeed, the level of consistency between what he told each doctor and, indeed, the facts of what was going on at Technology One as revealed by the evidence, is very high. This bespeaks a truthful account being given by the Applicant, both to his doctors and the Court.
6.35 The Applicant’s evidence should be accepted. Where it conflicts with the evidence of the Respondents’ witnesses, it should be preferred.
(Error in paragraph numbering in original).
157 The Respondents advance the following submissions:
14. The Applicant demonstrated a remarkable ability to recollect events and dates during both his evidence in chief and his cross-examination. He was in the witness box for about three and a half days. He did not give any indication that he did not understand the questions put to him, and if he was uncertain of the meaning of a particular question he showed no difficulty or hesitation in seeking clarification. He usually only said he could not recall matters when his responses would not have suited his case (T1166).
15. The Applicant demonstrated an ability to concentrate over long hearing days, involving sensitive issues, including the health of his daughter. He is clearly very intelligent, and had no difficulty reading emails and other documents and responding to questions in relation to same. He also seemed to have a keen recollection of events going back as far as 2006. The Applicant displayed a remarkable ability to concentrate, to recall past events in detail, to discuss documents and their meaning, given his reporting of difficulties in concentration and memory to the Doctors.
16. The Applicant is not a reliable or credible witness.
17. The Applicant’s performance in the witness box is in stark contrast to his reporting of his symptoms and level of functioning to all three psychiatrists, namely Dr White, Dr King and Associate Professor Phillips. It demonstrates that he has, at the very least, exaggerated his symptoms to his treating psychiatrist, Dr King, but also to Dr White and Associate Professor Phillips. For example, in the witness box he displayed no problems with concentration, irritableness or forgetfulness.
18. Also, the fact that the Applicant sought to distance himself from the history he gave to Dr White reflects poorly on his credit. His insistence that his claim against his daughter’s doctors was not about himself or his wife also reflects poorly on his credit (T301, T302, T3-44).
19. The Applicant’s version of events cannot be independently corroborated and should not be preferred when there is alternative evidence to the contrary.
20. His evidence, so far as it relates to contemporaneous notes demonstrate that the Applicant records impressions rather than events. It cannot be accepted that the information written by his hand are an accurate record of events that the Applicant is now alleging.
21. Further, the notes fail to record significant matters while purporting to be contemporaneous records of discussions. Importantly, the Applicant has produced no file notes to substantiate key events. For example, the Applicant has produced no file note recording what he claims to be his complaint about Mr Harwood to Mr Di Marco on 3 February 2016. Similarly, while maintaining he made a contemporaneous note of the events of 18 May 2016, he makes no reference to writing a suicide note either on the plane back to Melbourne or in his car at the airport (CB7090-7093). There is no file note of the Applicant’s alleged discussion with Mr Harwood on 3 February 2016 wherein the Applicant says that Mr Harwood said you won the battle but I lost the war (T181).
158 As observed above, to the extent that they exist contemporaneous written records generally provide a more secure basis for judicial fact-finding than personal recall much later after an event. In this proceeding, Mr Roohizadegan gave evidence that he had a practice of making a brief note of the most significant of conversations and events in which he had been involved shortly after those conversations or events had taken place. He gave the following evidence:
Mr Tracey: … in relation to those diary entries, Mr Roohizadegan … I just wanted to ask you when you made those diary entries?
Mr Roohizadegan: At the same time, basically, an hour or two of the conversations. It’s not that I had my diary and write at the same time, but if I can explain, the first one was after the lunch finished when I got to my office. The evening one I was already in the office or wherever I was, I wrote it. And the third one – so it was a matter of hours. It wasn’t the next day or the week after or a month after.
Mr Tracey: Do you have a practice in relation to keeping diary entries?
Mr Roohizadegan: Yes, I did.
Mr Tracey: And what’s that practice?
Mr Roohizadegan: Just, basically, I did write important things, important meetings, important events, and because of what has happened there. And I used to leave it sometimes in my office, my diary, but I – I put that diary in my briefcase. And I started with a new – a spiral, because I didn’t want my secretary to see those notes that Mr Harwood had mentioned to me, “One of us has to go,” something.
Mr Tracey: And those diary entries that I’ve just taken you to, what do you say about their accuracy?
Mr Roohizadegan: As far as I’m concerned, they’re 100 per cent accurate in a summary format.
159 A number of the notes Mr Roohizadegan gave evidence of having made in such a fashion were tendered. They are:
Exhibit A11: a series of notes made over 1 and 2 February 2016, recording inter-alia Mr Harwood having demanded that Mr Roohizadegan not attend a meeting with Mr Di Marco and including his having stated “one of us has to go”;
Exhibit A13: a note dated 20 April 2016, recording Mr Roohizadegan asking Ms Gibbons “is this bullying?” and her replying “yes”;
Exhibit A17: diary notes for 6 May 2016 to 11 May 2016, recording inter-alia that Mr MacDonald swore at Mr Roohizadegan and Mr Ivancic during a teleconference on 11 May 2016 in which they had reported an improved budget outlook for the Victorian region;
Exhibit A20: a diary entry dated 12 May 2016 recording the subject matter of a conversation between Mr Roohizadegan and Mr Nikoletatos of La Trobe University;
Exhibit A21: three pages of notes dated 12 and 13 May 2016 recording, inter-alia, Mr MacDonald swearing at Mr Roohizadegan as a result of his having allegedly negotiated with Mr Nikoletatos and events thereafter; and
Exhibit 28: notes dated 18 May 2016, in respect of the circumstances of his dismissal.
160 Dr Spry, counsel for the Respondent, submits that what Mr Roohizadegan recorded in his notes were “impressions” rather than events. He submits, for that reason, that the Court cannot accept that the information written by his hand is an accurate record of events he alleges occurred. Further, Dr Spry submits that it is significant that those notes do not include a record of all key events. Dr Spry notes for example that Mr Roohizadegan made no note of a critical conversation with Mr Di Marco on 3 February 2016, about which Mr Roohizadegan gave evidence.
161 I reject Dr Spry’s submission that Mr Roohizadegan’s contemporaneous notes should be characterised as recording only “impressions” rather than events. To give an example, his note dated 12 May 2016 records the following:
Angilika called me on my mobile, asking if I had left. I said I was downstairs and she said Stuart [MacDonald] wants to see me. I said okay and went upstairs. Stuart took me to Gareth Pie office and said he wanted Gareth to be a witness and started shouting at me with very loud voice “Should I tell you to negotiate with LaTrobe University or not?” “Why did you offer them $1m discount?” You cannot do that Benham. I said I didn’t negotiate, the customer wanted $7m discount and I said we had provided BAFO etc, but as the customer insister (Peter), I said $7m will not be approved by TechnologyOne. What does he want his bottom line discount and Peter said $1m and this is what I have communicated at no time did I say that I have the authority to give $1m discount and I hope to take that to my Executive and Adrian.
Stuart said he didn’t accept that and that was negotiation. I said I didn’t agree to it. Stuart then shouted that you F… Benham you don’t understand I replied English is not my first language and I have not agreed to anything with the customer, and Stuart [MacDonald] does not have a right to use bad language on me and shout at me. Stuart replied that he can use any language and swearing that he wants, and he can say and do anything that he likes and I cannot do anything about it. I replied no he could not swear, and abuse me and use bullying tactics on me and I said if there was nothing else.
I was going to leave Gareth [Pye’s] office to which Gareth & Stuart [MacDonald] said fine and I went to Edward [Chung’s] office and told Edward [Chung] about what had happened in Gareth office & Stuart swearing at me, etc. Edward said my email a bout La Trobe was good, he didn’t see anything wrong with it and seemed very surprised that Stuart had acted that way towards me.
I came out still shaken, bewildered and very upset downstairs to meet with Boris, Steve, Jerry and Mark … David Van De .. Boris and I caught a taxi to the airport.
162 Other notes made by Mr Roohizadegan include references within quotation marks to what appears to have been intended by him to record (albeit hastily and partially) what had been said as direct speech. Thus, his note of 13 May 2016 records Mr Di Marco telephoning him and saying “I apologise, Stuart’s behaviour unacceptable”.
163 Mr Roohizadegan’s unchallenged evidence, which I am entitled to accept, was to the effect that he had a practice of making a note shortly after events which had appeared to him to be very important at the time at which they occurred. It was not that he had a practice of making a note of every event that occurred in his employment at TechnologyOne. I reject Dr Spry’s submission that the Court should find that the reliability of what Mr Roohizadegan recorded in the contemporaneous notes he did make is undermined by his failure to make a note of every conversation and event of which he has given evidence in these proceedings.
164 In respect of what I am asked to infer by reason of the want of comprehensiveness of Mr Roohizadegan’s notes, Dr Spry did not put to Mr Roohizadegan that he had opportunistically omitted to make notes of events or conversations which were not consistent with his evidence in this trial.
165 Dr Spry did not put to Mr Roohizadegan that any of his notes had been written on dates other than those on which they were facially made. He did not put any questions to Mr Roohizadegan to put in issue that there was a want of contemporaneity or accuracy with respect to their making. Dr Spry did not put to Mr Roohizadegan that he had added anything later to his notes to buttress his case.
166 Dr Spry does not submit that anything in Mr Roohizadegan’s notes is inconsistent with any contrary and intractable documentary evidence (such as the emails TechnologyOne and Mr Roohizadegan adduced in evidence) the Court is entitled to accept. Mr Roohizadegan’s oral evidence was also consistent with his notes.
167 I find that Mr Roohizadegan made the notes as have been admitted into evidence shortly after the relevant events he describes in them occurred. Further, I am satisfied that the Court is entitled to rely on what is contained in such of Mr Roohizadegan’s notes as were put into evidence as a contemporaneous record. Finally, I am satisfied that Mr Roohizadegan’s notes are entitled to be accorded significant weight.
168 I also reject Dr Spry’s broader submission that the Court should find Mr Roohizadegan was not a reliable or credible witness.
169 Specifically, I do not accept Dr Spry’s submission that Mr Roohizadegan’s performance in the witness box over three and a half days was in stark contrast to his reporting of his symptoms and level of functioning to three psychiatrists who gave evidence at the trial, namely Dr White, Dr King and Associate Professor Phillips.
170 To the contrary, I observed that Mr Roohizadegan’s evidence was delivered in a flat, affectless monotone. I do not purport to possess any relevant expertise. However, my impression was that in giving his evidence Mr Roohizadegan was constantly struggling to hold himself strictly in control. If, in those circumstances, he displayed few problems with concentration, irritability or forgetfulness over that period, I find that to be consistent with his earlier established capacity to separate work tasks from his otherwise collapsing world: rather than an indication that he was in a condition other than as those doctors reported. In that regard I note that I am satisfied that Mr Roohizadegan’s evidence of his having sublimated his pain regarding the circumstances surrounding his daughter’s illness by burying himself in his work, notwithstanding the tragic costs it imposed on his family, was utterly convincing. I accept that evidence.
171 In any event, Mr Roohizadegan’s apparent control in the witness box on which Dr Spry relies in advancing those submissions appeared to me to have been at best tenuous. His demeanour (insofar as it is open to the Court evaluate it) suggested he found certain alleged incidents very painful to recall. As his cross-examination progressed over two days, I observed him becoming increasingly listless and tired. Having regard to the stress that his giving evidence appeared to impose upon him, I enquired on occasions if he was capable of continuing. Having regard to those observations, I regularly allowed breaks in his evidence-in-chief and cross-examination.
172 I reject Dr Spry’s submission that in those circumstances Mr Roohizadegan’s capacity to concentrate and to give coherent evidence (what Dr Spry attacks as his “remarkable ability”) establishes that Mr Roohizadegan had exaggerated his symptoms not only to his treating psychiatrist, Dr King, but also to Dr White and Associate Professor Phillips. To the extent that it is open to me to evaluate Mr Roohizadegan’s demeanour, my impression of him as a witness was not at variance with the medical evidence before the Court. I am satisfied that the more plausible explanation for his being able to recall in detail most of relevant events about which he gave evidence was that he was profoundly damaged by them. He had therefore continued to obsess over them long after their conclusion.
173 I accept Mr Roohizadegan’s evidence that when he had been terminated by Mr Di Marco, he had felt that his world had ended (T228). I find there to be no plausible reason which would entitle me to reject his evidence that his termination threw him into a black despair, which remains crippling and incapacitating. The experts called in this proceeding differ only as to whether the black despair he then experienced and continues to endure is properly to be understood as merely the manifestation of the same condition that Dr White had diagnosed him to be suffering before he was dismissed.
174 After giving his evidence Mr Roohizadegan remained in the body of the Court to be available, if required, to instruct his counsel. During that time, insofar as it came to my attention, his manner generally remained as it had been in the witness box: subdued and superficially stoic. However, when Ms Carr was giving evidence regarding the meeting at which he had been terminated Mr Roohizadegan exited the Court making no noise to draw attention to himself but with tears rolling down his face and in a clearly distressed condition (T1039-1040).
175 I am satisfied that Mr Roohizadegan’s demeanour and the manner of his giving evidence was consistent with that of an honest person determined to have their day in court: albeit notwithstanding their suffering from profound depression.
176 I also reject Dr Spry’s submission that Mr Roohizadegan’s insistence that the legal proceedings he brought against his daughter’s medical practitioners were not about himself or his wife provides a reason for the Court to be sceptical of his credit overall. This requires some explanation. In cross-examination, Dr Spry put to Mr Roohizadegan that he must have become aware of his suffering mental health issues well before he had been dismissed. In that regard Dr Spry referred Mr Roohizadegan to pleadings in proceedings he had brought (with his daughter) prior to his dismissal in which he had alleged medical negligence in the treatment of his daughter, and in which they had claimed damages from her treating doctors. Those pleadings advanced claims that he had suffered psychiatric injury as a result of those events (T346). Mr Roohizadegan said in response:
I saw the claim itself, but I didn’t pay attention to the details, Dr Spry, and that’s the truth, because my claim was about my daughter, not about me, but the documents state otherwise – and I agree with you – but I have to tell the truth to the Court.
177 Mr Roohizadegan’s evidence was that he had left those matters to his lawyers. When it was put to him by Dr Spry that he was not being honest with the Court by maintaining that until he had been diagnosed by Dr White he had known he was suffering guilt but had not appreciated he might have had suffered a psychiatric injury, he gave the following evidence:
I disagree. And that’s why I went to see Medical Panel to see whether I was injured. That’s why I went to see Dr White to see whether there was any injury. Prior to that I have no knowledge that there was an injury – possible injury (T302).
178 I reject the proposition that Mr Roohizadegan’s reluctance to have accepted prior to that diagnosis that he was suffering from a mental injury is a reason for the Court to find he was motivated by any intent to deceive his then employer (and later in this proceeding, the Court). After his daughter had become unwell and he had become consumed by guilt, he had been determined to hold his world together by continuing to work as if nothing had happened. I am satisfied that his insistence in cross-examination that he had viewed his claim against his daughter’s doctors as not being about himself or his wife was the truth as he understood it. He was simply pursuing and seeking to punish the doctors he blamed for misdiagnosing his daughter. The claims he and his wife brought in that regard were simply an aspect of that pursuit.
179 On the other hand I accept Dr Spry’s submission that by February 2016, having regard to the evidence adduced in those other legal proceedings, it is difficult to accept that Mr Roohizadegan would not have had to become aware of his having been diagnosed as suffering from at least some degree of psychiatric injury.
180 I reject however that Mr Roohizadegan’s subsequent failure to advise TechnologyOne about what he may have, and more likely than not did, become aware of in that regard provides a sound basis for the rejection of Mr Roohizadegan’s credit generally as a witness of the truth. To the contrary I find the most plausible explanation for that omission to be that Mr Roohizadegan could not bring himself even to privately acknowledge, let alone to tell TechnologyOne, that he had or might have a diagnosable psychiatric injury. Work had become Mr Roohizadegan’s one safe place, where he could escape from the difficulties that had beset his family and personal life. His failure to advise his employer of Dr White’s diagnosis was entirely consistent with, and a continuation of, his earlier determination to keep his workplace separate from the distress that was consuming his private life.
181 I reject Dr Spry’s submissions that Mr Roohizadegan’s evidence should be discounted because he was not a reliable or credible witness.
182 I also specifically reject that I should hesitate to accept Mr Roohizadegan as a witness of the truth because he failed to call Mr Paul James as a witness. In the Respondents’ closing written submissions, Dr Spry submits:
29. The Applicant gave evidence that Mr Paul James was a witness to a conversation the Applicant had with Peter Nikoletatos (an employee of La Trobe University) prior to his meeting with Mr MacDonald on 12 May 2016.
30. Mr James could have given evidence about the nature of the conversation the Applicant had with Mr Nikoletatos about the La Trobe University deal, and whether the Applicant did or did not negotiate with Mr Nikoletatos.
31. The Court should infer from the Applicant’s failure to call Mr James, that Mr James’ evidence would not have assisted the Applicant, and further the Court should find that the Applicant did in fact negotiate with Mr Nikoletatos, offering the La Trobe university a $1 million dollar discount as alleged by Mr MacDonald.
183 However, that is a straw man contention. Mr Roohizadegan relevantly denied two things: first that he had been instructed not to negotiate, and second that in any event what he had done and said had amounted to negotiating. Mr James’ characterisation of Mr Roohizadegan’s discussions with Mr Nikoletatos is inconsequential unless Mr MacDonald had previously instructed him not engage in any negotiations with La Trobe. Mr James might perhaps have been able to throw some light on the second order question by stating his opinion as to whether or not what Mr Roohizadegan had said to Mr Nikoletatos was relevantly “negotiating”. However, there is no basis at all on which it might be suggested that Mr James could have given any relevant evidence as to what instructions Mr MacDonald may or may not have earlier given to Mr Roohizadegan in respect of his dealings with La Trobe University.
184 In those circumstances I reject that Mr Roohizadegan’s failure to call Mr James reflects adversely on his credit. I also reject what may be an implication in Dr Spry’s submission at  that Mr Roohizadegan in fact offered, without authority, a reduction of $1 million in the price La Trobe would pay. I note in that regard that Mr Di Marco did not advance such a circumstance as being a reason for his decision to dismiss Mr Roohizadegan. That is hardly surprising, as there is considerable evidence that Mr Di Marco had been keen for Mr Roohizadegan to complete the La Trobe deal. To the extent that I need to reinforce the point, I am entirely satisfied that I should prefer Mr Roohizadegan’s evidence to that of Mr MacDonald on that question. I reject that I am entitled to find that Mr Roohizadegan had been previously instructed by Mr MacDonald not to negotiate with La Trobe.
185 Mr Roohizadegan responded without equivocation to all of the questions Dr Spry put to him in a long and detailed cross-examination. Save as to the submissions Dr Spry made with respect to Mr Roohizadegan’s insistence that his claim against his daughter’s doctors was not about himself (which submission I have dealt with and rejected above), Dr Spry advanced no submission that Mr Roohizadegan gave any identifiably untruthful answer or any answer inconsistent with his prior statements: including with respect to any matter contained in his notes. I reject that his occasional failures of recall were anything more than what could be expected of any honest witness. I therefore accept Mr Tracey’s submission that Mr Roohizadegan survived days of searching cross-examination with his credit intact.
186 I find the Applicant 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.
188 I have set out certain of the evidence given by Mr Di Marco above. I need not repeat that summary.
189 Mr Di Marco’s evidence is that he recalls having a pre-employment interview with Mr Roohizadegan in which they discussed incentives. His affidavit evidence of that discussion is as follows (Ex R31, CB497-498 at ):
I also pointed out that we had very clear rules about how commissions worked and that we paid a generous commission and if he grew the Victorian business he would make a lot of money. At the time Behnam commenced employment, Student Management Services (SMS) was treated as its own region with its own sales and implementation team totally distinct to the States like Victoria. This was consistent across all regions, and was always like this from the very start. The State regions did not receive any commission for SMS for many years before and after Behnam joined.
190 In cross-examination he gave the following evidence:
Mr Tracey: Mr Di Marco, I’m just going to take you back to the commencement of Mr Roohizadegan’s employment. Now, you had some discussions with Mr Roohizadegan in pre-employment interviews. Is that right?
Mr Di Marco: Yes, I did.
Mr Tracey: It was your decision to hire him in the first place?
Mr Di Marco: That would have been a decision by myself and Roger Phare.
Mr Tracey: And during those pre-employment interviews, you described the structure of the respondent’s business, namely, the TechnologyOne business, and how it’s divided into business units which are defined by geographical boundaries. Do you remember telling him about that?
Mr Di Marco: We would have talked about the business and we would have talked about he would be responsible for Victoria.
Mr Tracey: The Victorian …
Mr Di Marco: Region
Mr Tracey: Region?
Mr Di Marco: Yes
Mr Tracey: And you would have explained to him – well, you explained to him that each business unit reports to the head office in Brisbane?
Mr Di Marco: It would have been explained. Yes.
Mr Tracey: And it was also explained that the incentive bonus arrangement for Mr Roohizadegan was based upon the performance of the whole Victorian region. Do you remember saying that to him?
Mr Di Marco: I remember saying to him that there would be an incentive based on the performance of the Victorian region. Yes. He would make a lot of money out of it.
191 Mr Di Marco’s evidence is that Mr Roohizadegan did not ask him for incentives for SMS in the first couple of years after he commenced employment. Even when he asked for those incentives later in his employment, Mr Di Marco’s evidence is that Mr Roohizadegan had not said to him that he thought that he was contractually entitled to incentive payments on SMS at any time prior to 1 October 2010.
192 Mr Di Marco gave evidence that he alone was the decision-maker with respect to Mr Roohizadegan’s dismissal. In that regard, Mr Di Marco’s evidence was that he had three reasons for dismissing Mr Roohizadegan. Those asserted reasons were as follows:
(1) The licence fees in the Victorian region 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, line 44-T596, line 46).
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 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.
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.
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: … The subject heading is Victoria Forecast?
Mr Di Marco: Goes on forever, doesn’t it?
Dr Spry: It goes on, yes?
Mr Di Marco: Unbelievable. Like War and Peace. It goes on earlier than that, too, doesn’t it?
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.
199 As to his evidence that he had decided Mr Roohizadegan had to be dismissed upon his becoming aware of the contents of Ms Gibbons’ email, he gave the following evidence-in-chief:
Dr Spry: Could you tell the court who Kathy Carr is?
Mr Di Marco: Yes. Kathy Carr is – was responsible for our HR department. She had been with us quite a number of years.
Dr Spry: And she’s forwarding an email to you from a Rebecca Gibbons?
Mr Di Marco: That’s right.
Dr Spry: If you could tell the court who Rebecca Gibbons was and the position she held at this time?
Mr Di Marco: Rebecca worked for Kathy, and she was responsible as the HR liaison for a number of the regions for which Victoria was one of those, and her job was to – to work with the regions.
Dr Spry: Now, you read – well, did you read the email from Ms Gibbons?
Mr Di Marco: Yeah, I did. It was in the morning. We had a board meeting later that day. It was …
Dr Spry: If I – just if I could just pause there. Could you just tell the court your reaction on receiving that email?
Mr Di Marco: If I follow it backwards, it’s 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.
Dr Spry: And why did you form that email – sorry, why did you form that view?
Mr Di Marco: Well, I’ll just read you one sentence, okay, because I think it sums it all.
Simon is a solid performer. He was on track to hit Club this year and he is also building a good pipeline. When I asked him if he enjoyed work for TechOne, his response was that we were a great company. We have great products, a fantastic office – sorry, 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 was [possible transcription error] an organisation think it was acceptable to know about Behnam’s behaviour and do nothing about it. He stated the impression of Victoria, not just in the workplace, but our reputation in the marketplace is that we allow this behaviour to continue and just turn a blind eye as the figures have been so good in their previous years.
And that comment is indicative of the whole sales team, not one, that’s the whole sales team. Every person in the sales time. I mean, I was just totally flabbergasted, you know.
His Honour: So just picking up, where is that in the text? It’s what page and where in the text?
Mr Di Marco: It’s page 580 and it’s the last paragraph. It starts almost in the third-last sentence, second-last sentence of the last paragraph. I mean, even if it was just one person, one person it would have been unacceptable, but it’s the whole team. That’s the amazing thing; the whole team.
200 I address the evidence Mr Di Marco gave in cross-examination in my discussion below regarding the parties’ submissions as to this witness’s credit.
201 The Applicant makes the following submissions with respect to Mr Di Marco’s credit:
7.19 The Second Respondent was an unsatisfactory witness.
7.20 The Second Respondent gave evidence that he terminated Mr Roohizadegan’s employment for various reasons, including that he had not been able to get along with his previous three managers (T575.28-30). The Second Respondent’s evidence in relation to this point should not be accepted as Mr Lee Thompson, one of the managers whom the Second Respondent says could not work with Mr Roohizadegan, has given evidence that he disagrees with any assertion that Mr Roohizadegan’s employment was terminated because they did not get along (T458 at 38 to 40). Moreover, as submitted earlier, the notion that a reason for dismissal included the Applicant not getting along with his managers is directly contradicted by Mr Di Marco’s own statement in the termination meeting on 18 May 2016 that the decision had nothing to do with Start McDonald or Martin Harwood.
7.21. On the first day of his evidence, Mr Di Marco enthusiastically and confidently tried “to sell” his version of why the Applicant’s employment was terminated. This was in marked contrast to his demeanour at the end of his cross-examination. During the enthusiastic phase, Mr Di Marco used hyperbole, referring to being “flabbergasted” by Rebecca Gibbons’ 24 May 2016 email, and proffering that the email was one of the worst emails he’d read in business in 35 years. No such comments are to be found in his affidavit.
7.22. The hyperbole undermines Mr Di Marco’s credibility and reliability as a witness. So do his disingenuous set up of the termination meeting, his admitted concealment from the Applicant over a period of weeks that he was considering terminating his employment and his admitted stringing along of the Applicant so the Latrobe deal could be done (as submitted earlier in these submissions).
7.23. In short, Mr Di Marco was not a witness of credit, he was not a reliable witness and his evidence should not be accepted on controversial matters, including in relation to his proffered reasons for his adverse action. Where his evidence conflicts with the Applicant’s evidence, the Applicant’s evidence should be preferred.
202 The Respondents submissions relevant to the assessment of the credit of Mr Di Marco as a witness are as follows:
(i) The general demeanour of Mr Di Marco in the witness box was one of a man trying to remember in detail events that had occurred over three years ago. His evidence in chief and cross examination responses were given without him reviewing documents and he made concessions when he was unable to remember specifics of a day, or whether people worked on public holiday (T560).
(ii) Mr Di Marco, when he thought an alternative interpretation of his statement was being used also had the ability to say that interpretation was wrong (T570).
(iii) His testimony is supported by documentary evidence, largely in the form of emails that show his knowledge and interactions with the staff at Technology One.
(iv) His view was that the Applicant complained very regularly to him, since the start of his employment about all different matters including his remuneration and his managers. Complaints made by the Applicant did not affect the way Mr Di Marco viewed the Applicant or his standing with the company (T535). Indeed Mr Di Marco thought very highly of the Applicant.
(v) Mr Di Marco’s failure to accord the Applicant natural justice in relation to the complaints forwarded by Ms Gibbons does not reflect poorly on Mr Dr Marco’s credit in circumstances where the Applicant was a very senior employee earning about $1,000,000 per year, had no legal entitlement to natural justice, whether pursuant to statute or contract, and where Mr Di Marco had given the Applicant the benefit of the doubt over many years.
203 Dr Spry submits that the general demeanour of Mr Di Marco in the witness box was one of a man trying to remember in detail events that had occurred over three years ago. He submits that Mr Di Marco’s responses in evidence-in-chief and cross-examination were given without him reviewing documents. He further submits that Mr Di Marco made appropriate concessions when he was unable to remember specifics of a day, or for example whether people had worked on public holiday (T560).
204 I reject the proposition that it can be taken to be self-evident that it speaks in favour of Mr Di Marco’s credit that he chose to give his evidence without first reviewing any of the relevant documents. It might equally reflect complacency, arrogance or indifference to the accuracy of his testimony.
205 In any event, I am not satisfied that the factual basis for that submission is made out. Dr Spry did not refer to anything in the transcript as would support the Court finding as a fact that Mr Di Marco gave his evidence without earlier having reviewed the documents. On the contrary I am satisfied that he did so, at least in part. I note in that regard that in response to a question in examination-in-chief as to whether he had had an opportunity to review the email chain relevant to Ms Gibbons’ report on the views of TechnologyOne’s staff in Melbourne, Mr Di Marco answered: “Yes, I’m familiar with this email.” (T518).
206 Dr Spry submits that Mr Di Marco, when he thought “an alternative interpretation of his statement was being used had the ability to say that interpretation was wrong”. However, the very example that Dr Spry advances in favour of the Court concluding that Mr Di Marco was a credible witness illustrates, to the contrary, Mr Di Marco’s reluctance to concede error.
207 The example given is Mr Di Marco’s response to his being cross-examined by Mr Tracey in respect of a passage in his witness statement (sworn as an affidavit) in which he refers to “I and TechnologyOne’s executive team” (emphasis added) having made the decision to terminate Mr Roohizadegan’s employment. That evidence was given in a context where it is uncontentious that a meeting of TechnologyOne’s executive was convened on 26 April 2016 for the purpose of discussing Mr Roohizadegan’s employment. In his evidence-in-chief however, Mr Di Marco had given evidence that he and he alone had made the decision to terminate Mr Roohizadegan.
208 Under cross-examination, Mr Di Marco initially sought to maintain that the other members of TechnologyOne’s Executive Team had not been involved in making the decision to terminate Mr Roohizadegan’s employment (T569). Asked to explain why, if that was so, he had called a meeting of the executive Mr Di Marco indicated he had misheard or misunderstood the question:
Mr Tracey: Well, I put it to you you convened this meeting because those other people who I’ve just taken you to, mentioned in the email and who you’ve confirmed, those other people were involved in making a decision to terminate Mr Roohizadegan’s employment, weren’t they?
Mr Di Marco: No, they were not.
His Honour: Well, why did you involve them in a meeting of an executive?
Mr Di Marco: I wanted to get their advice.
His Honour: Yes. Well, that means they’re involved in it, does it not?
Mr Di Marco: But they didn’t make the decision, your Honour. The decision ….
His Honour: But your question was, were they involved in it?
Mr Di Marco: I’m sorry. I thought you were saying they made the decision. Did I misread that – misheard that?
209 Mr Di Marco then conceded that the members of TechnologyOne’s Executive Team had provided advice to him on the issue (T569) and, to that extent, had been involved in making the decision:
Mr Tracey: The question was whether those people were involved in making the decision to terminate Mr Roohizadegan’s employment?
Mr Di Marco: They provided the advice to me.
Mr Tracey: So they were, as his Honour put to you, involved in the decision to terminate Mr Roohizadegan?
Mr Di Marco: All right. Yes.
210 Mr Tracey then took Mr Di Marco to his affidavit. Mr Di Marco acknowledged that he had carefully prepared his affidavit and had sworn to its truth (T571-572). Mr Tracey referred Mr Di Marco to paragraph  in which he had deposed:
I realised then that in hindsight, TechnologyOne should have terminated Behnam’s employment in late April 2016 after I and the Executive team first made the decision, rather than wait for the La Trobe University deal to be signed.
211 Mr Di Marco then conceded that what he had sworn in that paragraph was “not correct” (T570, line 47). However, he almost immediately sought to walk back from that admission (T571, lines 7-15) :
Mr Tracey: And now you are saying it [the affidavit] is untrue?
Mr Di Marco: Well, I think it’s in the wording itself. I mean the wording is so subtle with this.
Mr Tracey: Well we can get to the subtleties of the wording, Mr Di Marco, but you would agree with me, surely, that a central issue in this case is who made the decision to terminate the applicant’s employment isn’t it?
Mr Di Marco: There are so many issues in this case. So many. I mean it’s …
Mr Tracey: A central issue in this case?
Mr Di Marco: There are so many central issues in this case.
212 I have accepted, for reasons I give later, that I should proceed on that basis that Mr Di Marco was ultimately the sole decision maker. However, his tortured and evasive evidence with respect to his earlier statements that on their face appeared to admit the contrary does not support Dr Spry’s submission that where “an alternative interpretation of his statement was being used [he] had the ability to say that interpretation was wrong”.
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).
215 The problem of then disentangling the matters of which Mr Di Marco asserted he had personal knowledge from those which he might have been told was further illustrated in a different part of the cross-examination.
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).
217 When later confronted by Mr Tracey with TechnologyOne’s own documents as demonstrated that the financial year ending September 2013 had been a highly successful one for the Victorian region, Mr Di Marco prevaricated rather than making the appropriate concession:
Mr Tracey: Did – the question is, is it true that in each of those three years Victoria’s revenue growth relevant in that field had gone backwards? That’s the question. True or false?
Mr Di Marco: Okay. It’s false.
Mr Tracey: So it’s false?
Mr Di Marco: It’s false.
Mr Tracey: So Mr Harwood’s statement is false?
Mr Di Marco: No, it’s not false.
Mr Tracey: So it’s true. Is that your evidence?
Mr Di Marco: I’m not sure how to answer it because it’s the word backwards that’s the issue. So I don’t know how to answer it (T547).
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.
223 Those further examples buttress my rejection above of Dr Spry’s credibility submission that when Mr Di Marco thought an alternative interpretation of his statement was being used he had the ability to say that interpretation was wrong: at least insofar as that submission implies that Mr Di Marco was able to advance a plausible basis for maintaining a discredited position.
224 To the contrary, I accept Mr Tracey’s submission that in giving his evidence-in-chief Mr Di Marco initially enthusiastically and confidently tried to “sell” his version of why the Applicant’s employment was terminated. I am satisfied that Mr Tracey was correct to submit that Mr Di Marco’s demeanour was much changed by the end of his cross-examination. A minor but illustrative example concerns the evidence to which I refer above at .
225 I specifically reject Dr Spry’s submission that Mr Di Marco made appropriate concessions when unable to recall specific events. That may be accepted to be true in the single instance cited by Dr Spry when Mr Di Marco conceded that dates on emails shown to him compelled such a concession (T560). However, I reject that it can be accepted as an accurate assessment more generally.
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).
232 It was then put to Mr Di Marco that on his own evidence he had been “willing to terminate the employment of an employee of almost 10 years’ service on the basis of untested allegations of fact as to complaints that had been allegedly made against him” (T574, lines 9-12) to which he answered: “No”.
233 I am satisfied that that answer was disingenuous.
234 There is 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.
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.
238 Moreover even if it can be accepted (contrary to my view that it is implausible) that on a first reading of Ms Gibbons’ “shocking” email Mr Di Marco had not taken in that one of his most senior employees had informed Ms Gibbons that he was contemplating taking legal action against TechnologyOne in respect of the bullying he claimed to have experienced from a peer, it is uncontentious that Ms Gibbons was called into the meeting of TechnologyOne’s executive held the next day. During that meeting, which Mr Di Marco attended, Ms Gibbons verbally outlined the events that had prompted her email. Her evidence was that while she did not repeat that Mr Roohizadegan was contemplating legal action, she did verbally advise the executive of Mr Roohizadegan’s complaints of bullying (T726, line 47). Mr Harwood’s evidence was that Ms Gibbons had told the meeting that Mr Roohizadegan was “unhappy and was considering taking legal action against Peter Sutching” (T1092, lines 25-30). Mr Sutching had earlier been one of Mr Harwood’s direct reports (T1093, lines 8-12).
239 Having regard to those circumstances, Mr Di Marco’s explanation for his asserted want of recall is inherently implausible. I reject it.
240 There is a further aspect of the evidence that Mr Di Marco gave with respect to Ms Gibbons’ email and his response to its contents which warrants attention. It will be recalled that Mr Di Marco’s evidence-in-chief was that it was the contents of that email that had led him to decide to dismiss Mr Roohizadegan. There is however a glaring contrast between his evidence in the trial that he had told Mr Roohizadegan when terminating him that he was doing so because inter-alia there was an issue of systematic bullying and culture of fear that had been raised by his staff in Victoria (as had been summarised in that email) (T641, lines 27-28), and the absence of any reference in his earlier sworn affidavit to that reason ever having being conveyed to Mr Roohizadegan (T642, lines 1-3).
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 (T561, lines 17-30). 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”.
242 I further reject Dr Spry’s submission that I am entitled to conclude that the complaints made by Mr Roohizadegan had not affected the way in which Mr Di Marco viewed him or his standing with the company, and that “indeed Mr Di Marco thought very highly of the Applicant”.
243 I accept that until immediately before Mr Di Marco terminated Mr Roohizadegan’s employment, the evidence is consistent with the proposition Mr Di Marco had thought very highly of him. However, even accepting that proposition, once the Rubicon of his dismissal had been crossed I am comfortably satisfied that Mr Di Marco was willing to advance unfair allegations against Mr Roohizadegan in an attempt to justify his decision.
244 Thus Mr Di Marco deposed in his affidavit that “as early as December 2007 I received a complaint from a long serving employee, Bernard Morris, about Benham [Roohizadegan]”. The inference to be drawn from that to which Mr Di Marco deposed was that Mr Roohizadegan had had a long-standing history of having generated complaints from loyal and long serving employees of TechnologyOne.
245 In cross-examination Mr Di Marco conceded that that to which he had deposed with respect to Mr Morris was in error. He was “happy to accept” that Mr Morris was not a long serving employee and in fact had joined TechnologyOne as an employee “just a few months before” he had made his complaint (T650-651). Mr Di Marco accepted that Mr Roohizadegan had told him that he was concerned about the performance of Mr Morris (T651, lines 5-30). Mr Di Marco’s explanation for having included that damaging statement in his affidavit was that at the time he had not recalled Mr Morris being on probation. Nor had he recalled his having authorised Mr Roohizadegan to “just get rid of [Mr Morris]” (T651, lines 5-30).
246 When however Mr Tracey put to Mr Di Marco that his affidavit was therefore not accurate, Mr Di Marco responded as follows (T651):
Mr Tracey: You described him as a long serving employee. That’s not accurate, is it?
Mr Di Marco: I would have to see the termination date. That was my – I thought he was, but I don’t know the – the start date, and I thought he was.
Mr Tracey: You knew though that he was in a probationary period, didn’t you?
Mr Di Marco: I don’t recollect that. I mean, I have 100s of people that work for me – 100s, maybe 1000. I mean, it’s just …
247 I am satisfied that Mr Di Marco’s, at best careless, slighting of Mr Roohizadegan’s record in his sworn affidavit on a false premise illustrates that once Mr Roohizadegan had been dismissed and had brought legal proceedings Mr Di Marco was willing to attack, on baseless grounds, the man for whom he asserted he had had a “soft spot” (T653, line 27) and whose enterprise had helped build the success of the company he had founded. If further proof be needed of the latter proposition, I note that immediately following Mr Roohizadegan’s termination Mr Di Marco made a company-wide announcement (Ex R28) advising that “[o]ur Victorian Region has been one of our most successful regions over the years with strong growth.”
248 There are additional reasons to conclude that whatever “soft spot” he might once have had for Mr Roohizadegan, once he had decided to fire him Mr Di Marco was willing to act ruthlessly without regard to candour or friendship.
249 First, assuming a settled decision was made by Mr Di Marco on 25 April 2016 (which for reasons I later set out I do not accept as proven on the balance of probabilities) his conduct, as he effectively conceded in cross examination, towards the man for whom he says he had had a soft spot was thenceforth deceptive and self-serving if not cruel. I refer to the following evidence (T654):
Mr Tracey: Well, on your version the decision is made on 25 April, yet between 25 April and 18 May you deliberately concealed your intention to terminate Behnam from him; is that correct?
Mr Di Marco: Yes, that’s correct.
Mr Tracey: It’s correct that you just strung him along throughout that period from 25 April to 18 May?
Mr Di Marco: I – sorry – did not tell him.
Mr Tracey: No, you didn’t tell him, but you strung him along. You kept encouraging him in relation to closing the La Trobe deal?
Mr Di Marco: You can use the word “strung along”.
Mr Tracey: Because they’re accurate, aren’t they?
Mr Di Marco: I don’t think they’re accurate but …
Mr Tracey: Well, I put to you that I can use them because they cover exactly what occurred; do you agree with that? Do you agree with that?
Mr Di Marco: Yes, all right, I will agree to that.
Mr Tracey: You will agree to that and you will agree that you kept encouraging him and telling him that he was doing great work on the La Trobe deal. That’s right, isn’t it?
Mr Di Marco: On the La Trobe deal definitely.
250 Secondly, Mr Di Marco’s evidence-in-chief with respect to the meeting on 18 May 2016 at which Mr Roohizadegan was terminated was that he had told Mr Roohizadegan that he had allocated five hours for that termination meeting, “so that we don’t have a rushed meeting, so we could go through the process properly” (T537).
251 He later provide a more detailed explanation (T539):
Well, just from the logistics, I didn’t want Behnam to come up and it to be a rushed meeting, you know, so I tend to allow enough time so that, once we had discussed the separation, he could then go and talk to our legal department about the separation deed and fine-tune it. He could go talk to the accounting department to go through the numbers. It was a very generous package I wanted to offer him, but there were various options of what he could take and how he could package it up to minimise his tax. Also, too, it was to allow him, if he wanted to, to grab a coffee with me afterwards, because when I have done the separation with other longstanding employees, it has always gone well, and we have grabbed a cup of coffee afterwards, because people realise that, you know, it’s now time for both parties to move on, so I wanted to have the time allocated so it wasn’t a rushed thing. I didn’t want him just flying up and flying back, and – so that was why.
252 I reject all of that evidence. The emails and phone calls Mr Di Marco had earlier made to Mr Roohizadegan to induce him to attend the meeting had intimated to Mr Roohizadegan that the meeting was to be held for an altogether different purpose. His affidavit contains the statement:
I told Benham [Roohizadegan] words to the effect that Stuart [MacDonald] had been counselled. I said this in order to placate Benham.
253 That was in line with his also professing to Mr Roohizadegan on 13 May 2016 as he continued to finalise his plans for his termination that he had expected “them both to return to work and restart their relationship”. That, however, was knowingly untrue (T657, lines 9-29).
254 The calendar invitation that Mr Roohizadegan had been sent prior to the meeting indicated that Mr MacDonald would be present. Mr Di Marco accepted that that was false representation. The meeting was presented by Mr Di Marco to Mr Roohizadegan as an opportunity to find a way that would permit both he and Mr MacDonald to get back to work together in the aftermath of their run-in the week before: a run-in following which Mr Roohizadegan had complained to Mr Di Marco that Mr MacDonald had behaved unacceptably, and that he had been bullied.
255 None of those representations were true.
256 Mr Di Marco accepts that when he sent the calendar invitation he knew that Mr MacDonald - who, misleadingly, had been included in the list of invitees to the meeting - would not attend (T632, line 22).
257 Five hours had not been set aside for discussion. As Mr Tracey put to Mr Di Marco, the “communications plan” for the meeting prepared by Ms Carr (Ex A78) - a plan that Mr Di Marco accepted he had in fact followed almost to the letter (T634, lines 11-38) - allocated only an hour for the meeting. If it needs be said, the plan demonstrates in the clearest of terms that the meeting was not called for the reasons for which Mr Di Marco had advised Mr Roohizadegan it was to be held. Its sole purpose was to permit Mr Di Marco to effect Mr Roohizadegan’s dismissal (Ex A78, CB7078-7082).
258 There was no time set aside in the “communications plan” for any discussion of ‘”various options” let alone for “grabbing a cup of coffee”. I am satisfied that the evidence entitles me to find that the meeting was planned to be, and was, over in less than an hour. Mr Roohizadegan was not to be given, and was not given, the opportunity for any further discussion. Senior leaders were to be notified at 11.15am and there was to be company-wide announcement at 11.30am: at the latest half an hour after Mr Roohizadegan’s termination had been effected. That is what happened.
259 In cross-examination, Mr Di Marco gave the following evidence as to what he said and did at the termination meeting (T640):
Mr Tracey: “I’m giving you some ex gratia payments, plus your share options, despite the advice of my board”. That’s what you said?
Mr Di Marco: Words to that effect.
Mr Tracey: And you said, “If you go legal on me, this offer is off the table”?
Mr Di Marco: Words to that effect. Yes. Yes.
Mr Tracey: Then you said to him – you give him an envelope; is that right?
Mr Di Marco: Yes
Mr Tracey: And you say, “All is in this envelope”?
Mr Di Marco: Yes (T640).
260 Mr Di Marco later said in cross-examination:
Mr Tracey: Now, you said to him – so you’ve given him the envelope. You said to him … “This is not negotiable” as you gave him the envelope?
Mr Di Marco: That’s right.
Mr Tracey: And that was because in your mind – well, this is what you were conveying: that the deal was the deal and there was no scope for Behnam to negotiate it; is that right?
Mr Di Marco: Yes. The words were that, yes (T644).
261 I reject Mr Di Marco’s evidence that despite his accepting that he had used those words the terms of Mr Roohizadegan’s dismissal were, in fact, negotiable:
Mr Tracey: Well, I put to you that when you say something is not negotiable and you’re actually thinking that it was negotiable that’s not true?
Mr Di Marco: We’re dealing with a sales person. Everything is negotiable. Everyone knows that. That’s the way it works in our business and particularly with Behnam everything is negotiable (T646).
262 I reject Mr Di Marco’s evidence that he had acted on the basis that TechnologyOne was willing to negotiate a different outcome. It is entirely implausible. There is uncontentious documentary evidence which proves that behind the scenes, TechnologyOne had undertaken extensive internal processes to determine and review what it would offer to Mr Roohizadegan. I am comfortably satisfied that, on the company’s behalf, Mr Di Marco presented Mr Roohizadegan with what was intended to have been, and was, a pre-arranged, non-negotiable offer.
263 The evidence is intractable that not only did Mr Di Marco tell Mr Roohizadegan that the offer was non-negotiable, but that that was the fact. I reject his evidence to the contrary.
264 In Kaur v Minister for Immigration and Border Protection  FCAFC 53; 269 FCR 464, the Full Court (Murphy, Mortimer and O’Callaghan JJ) noted (at ):
To find that a person is not “a witness of truth” is, in substance, to find the person to be a liar. In the circumstances of a court hearing, with evidence given on oath or affirmation, it is also in substance a finding of perjury. It is not a trifle. Of course, it is important that judges are free to make such findings where they are required and where they are justifiable. However, the finding must not only be justifiable, it must be justified. And the place it must be justified is in the court’s reasons.
265 It is unnecessary for the Court to record a finding that Mr Di Marco was not a witness of the truth. Human recall is imperfect, and 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.
266 It is sufficient that I record, having regard to the above considerations and those I have recorded below at -, 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.
267 Mr Harwood gave evidence by way of an affidavit he adopted (Ex R65, CB471-492) that he had retired from his position with TechnologyOne in April 2017. He had been employed by the company in 2009. He became a member of TechnologyOne’s Executive Team in July 2009.
268 In late 2014, he was appointed as Operating Officer for Sales and Marketing. As from that time, Mr Roohizadegan had reported directly to him. That had continued until April 2016 when Mr MacDonald had taken over in that capacity.
269 While Mr Harwood did not dispute that as Regional Manager for Victoria the prime measure for Mr Roohizadegan’s success was the region’s gross profit (T1113, line 15), his affidavit evidence was that licence sales were the key component for business growth at TechnologyOne:
6. … The sale of a software licence results in the creation of an ongoing annuity revenue stream and also all consulting revenues flow from the software licence sale. Licence revenue is the beating heart of the TechnologyOne business and it is the primary measure for the success or failure of the business. The three major regions, Queensland, New South Wales and Victoria constitute two-thirds of the licence revenue of the TechnologyOne business. When I was appointed Operating Officer for Sales and Marketing I looked at where the business was trending and what the current performance was. The overall business target was to grow the business by 10-15% each year. 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.
7. I considered that Benham’s region should have been one of the high growth areas, however Victoria’s revenue from licence sales declined from 2014 to 2016 and the Victorian business was trending down because there was no future growth in licence sales secured …
270 Mr Harwood’s evidence was that because licence sales were the key component of TechnologyOne’s growth, the company had restructured its remuneration incentives for new hires in 2015. However, as Mr Roohizadegan was then an existing employee those alterations had not applied to him:
15. Prior to 2015, when TechnologyOne restructured its remuneration incentives for new Regional Managers, Regional Managers were paid on profit of their region and not on growth. Profit was generated from the New License Revenue, Maintenance Revenue and Consulting Services Revenue. This meant that even if New License Revenue was neutral or declining, profit would continue to go up because it was linked to previous licence sales which would continue to generate Maintenance Revenue and Consulting Services Revenue.
16. In 2015 and 2016, Benham was paid over $800,000. In 2014, he was paid almost $1 million. However, his New Licence Revenue continued to go backwards and he could not adapt his sales and management style to address the problems that the Victorian Region was experiencing and to improve the business. As his manager, I considered that Benham was not providing the leadership required nor was he delivering a return on the investment that TechnologyOne had made in him over a number of years.
271 I interpolate that in cross-examination, Mr Harwood acknowledged that he had been responsible for recommending that change to remuneration incentives. However, he denied that the discrepancy between Mr Roohizadegan’s grandfathered contractual entitlements based on profit share was of concern to him: “there was no concern from me on what Benham [Roohizadegan] was paid” (T1114, lines 10-25).
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 -). 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.’
273 His evidence as to the circumstances of his appointment of Mr Metcalfe, which Mr Roohizadegan gave evidence had been effected without him being consulted, was as follows:
Appointment of a regional sales manager
17. As the TechnologyOne business grew across the board it became clear to the CEO and the Executive Team that we needed to strengthen the sales management team in the major Regions. In 2015, the Executive Team made the decision to introduce Regional Sales Managers to work under the Regional Managers in the key regions to help develop the business further. The intention of the Executive Team was that the Regional Sales Managers would manage the more junior sales people and the Regional Managers would be freed up to concentrate more on the strategy of the business and the pursuit of the larger opportunities with the more senior sales people in the region. The decision to introduce Regional Sales Managers was also part of succession planning for our Regional Managers, so if one of them left the business, the Regional Sales Manager could take over.
18. Benham was resistant to the idea having [sic] a Regional Sales Manager in Victoria and became very defensive about having a Regional Sales Manager working with him. I believe that he saw this as a threat to his position rather than an opportunity to have more expertise available to manage the sales team and drive growth. This was in contrast to NSW and Queensland where the Regional Managers welcomed the prospect of having an experienced Sales Manager working under them.
19. Because of Benham’s reluctance, I decided that I would initially bring in one of the other Regional Managers from a smaller region to assist Benham as an interim step. I asked Richard Metcalfe, the Tasmanian Region Manager to work in Victoria with Benham in the position of Acting Regional Sales Manager. I put Richard in place as a holding strategy to get Benham used to the idea of having somebody running part of the business for him. Richard managed a part of the Victorian sales team and also maintained his responsibilities for the Tasmanian business. Richard attended the Victorian office 3 days per week from March 2015 to February 2016. Richard’s job in Victoria was to focus on the sales team, work with them and improve the situation. Richard managed the more junior salespeople and Benham continued to manage the senior sales people.
20. This proved to be a difficult task for Richard because Benham continued to react with suspicion about the arrangement. In or around February or March 2016, Richard return to work in Tasmania full-time for family reasons.
274 His evidence as to the proposition that he had threatened Mr Roohizadegan that one of them would have to go if Mr Roohizadegan insisted on meeting with Mr Di Marco to raise his complaints was as follows:
26. During February 2016, Benham was in Brisbane and requested to meet with Adrian. This was in no way unusual, most of the Region Managers took the opportunity to have a personal catch up with Adrian when they came to HQ. I deny that I instructed Benham not to see Adrian because it was something that was welcomed by both Adrian and me. I was not unhappy about Benham’s meeting with Adrian and I deny that I raised my voice or screamed at Benham about it as alleged by him. I had absolutely no problem with Benham meeting with Adrian because this was in line with any other Regional Managers raising issues or concerns with the boss.
27. Adrian would normally ask me what topics a Regional Manager would most likely raise and that was the case for this particular meeting he had with Benham. I advised Adrian that Behnam would likely raise two issues. The first issue I considered Benham would address was that he could not deliver on the level of growth that I had set for the Victorian region and what I wanted was not achievable. I knew that Behnam would raise this issue because we had several discussions about the sales performance of the Victorian region and what my expectations were but Behnam did not agree with the budget that I had set for his region because it was higher than what he wanted to be measured against.
28. The second issue I considered that Benham would address with Adrian was that he would again seek to have his own candidate to be appointed to the position of Regional Sales Manager. However, I explained to Adrian that Behnam had already agreed to appoint Boris.
29. I called Behnam in advance of his meeting with Adrian to let him know Adrian had spoken to me and that I had told him what I thought would be discussed in the meeting. I deny that at any time I said to Behnam, as asserted by him, words to the effect, ‘you do not have a right to see Adrian. I am your boss’ and ‘if you go to this meeting on Wednesday it will be either you or me at TechnologyOne by the end of the day. One of us has to go, Behnam’. This is completely at odds with my belief that it is important that our Regional Managers have a direct line of communication to the CEO. It is ingrained in to the TechnologyOne culture. Even if I had wanted to, I could not stop Behnam from meeting with Adrian.
30. I was called into the meeting with Behnam and Adrian on 3 February 2016. I spoke about the appointment of a new Regional Sales Manager first. I said to Behnam and Adrian during the meeting words to the effect of ‘I would not appoint Benham’s candidate Phil Pantano because Boris is the right man for the role’. Adrian then confirmed that Boris would be appointed to the Victorian Regional Sales Manager position. I recall that in relation to the issue about the sales figures, Adrian said to Behnam words to the effect of ‘we all have to work together. We need to listen to Martin and step up and face the challenges’. I was then asked by Adrian to leave the room. I deny stating words to the effect of ‘Benham you might have won the battle, and I have lost the war this time, but I will ultimately win. I am going to scrutinise you, your work and make life difficult for you until you go from TechnologyOne’. I also deny that Benham said to me ‘you can scrutinise me all you like, I never have and never will do anything wrong by TechnologyOne.’
275 Mr Harwood’s evidence regarding Mr Roohizadegan’s contention that he had moved to dismiss Mr Con Tsalkos without consultation with him was as follows:
31. Richard Metcalfe had told me there were a number of people in the Victorian sales team who were not performing satisfactorily and that in particular he and Benham had come to a decision to terminate the services of an employee named Con Tsalkos. Benham and Richard worked on the termination process with Rebecca Gibbons, HR Business Partner. It was a standard practice, when an employee’s services were being terminated, for there to be a deed of release and from my understanding, the situation was no different with Con’s termination.
32. During the process of dealing with Con’s dismissal from the business, I received an email from Behnam about the situation, in which he described either Richard or I as a ‘fifth column’. Attached and marked as ‘MH-9’ is a copy of the email from 18 June 205 to 19 June 2015 between me and Benham regarding the termination of Con’s employment.
33. I confronted Benham about his use of the expression ‘fifth column’. Behnam apologised to me for his comment and explained what he meant to say. Behnam also said English wasn’t his first language and he did not fully understand the expression ‘fifth column’. Behnam’s complaint was that he had not been kept in the loop about what was happening with Con’s dismissal. However, Behnam had instigated the decision to terminate Con and had full knowledge of what was happening with the termination process as he had always been included in emails discussing the termination.
276 Mr Harwood gave the following evidence as to his perception of Mr Roohizadegan’s management style:
34. My impression of Behnam was that he is a very nice person at a personal level because he is a dedicated family man and he has a social conscience. However, the opposite is true when it comes to business because Benham’s management style left a lot to be desired in that Behnam was autocratic in his role as a manager which resulted in a culture of fear in our Victorian sales team. My perception of the Victorian office whilst under Benham’s management was that upon walking in, you would notice signs of the culture of fear because people were unusually quiet and they seemed reluctant to engage or talk to you because they were fearful that they might say something out of turn which would upset Behnam.
35. As Behnam’s manager, I did not consider that Behnam could build a mature, self-confident team that was empowered to build the sort of business that TechnologyOne required due to his autocratic management style which negatively affected his staff’s ability to deliver the results required by TechnologyOne. This is because Behnam would direct his employees to do something but he would rarely provide guidance or support to them and then he would hold them accountable if something went wrong.
36. Behnam’s management style lacked the mentorship element that you would expect from a leader. This is because Behnam did not engage with his sales organisation and lead from the front by helping his sales team grow their abilities. His style was about telling what needed to be done but not working to help show less experienced people how to do it.
277 Tellingly however, Mr Harwood also gave evidence from which it might be inferred that his view of Mr Roohizadegan had already soured well before he had come to the role of Operating Officer for Sales and Marketing:
44. I recall that I started to raise the fact that Benham might not be the right person for the job with Kathy Carr and Adrian as early as 2012. At that time, Roger Phare was Operating Officer for Sales and Marketing and I was running the Industry Solutions Group. My team spent time with the sales teams in the regions working on opportunities because their role was to support the sales teams with industry experience. My team would report back to me and identify issues in Victoria, specifically the fact that the sales team lacked effective leadership from Behnam.
45. I consider that Adrian had a blind spot when it came to Behnam. Adrian did not appear to fully appreciate all of the difficulties with Behnam. In my view, that was because Adrian was never Behnam’s direct line manager and did not see first hand what was happening.
278 In his oral evidence-in-chief Mr Harwood testified as to who had attended and what had happened at the meeting of the Executive Team on 26 April 2016:
Dr Spry: Now, first of all, who was at that meeting?
Mr Harwood: Adrian as the chair of that meeting, me, Stuart MacDonald, Ed Chung and Kathy Carr.
Dr Spry: Now, when the meeting started, once you were all gathered at the meeting, when the meeting started who’s the first to speak?
Mr Harwood: Adrian.
Dr Spry: And that’s Adrian Di Marco?
Mr Harwood: Yes. Adrian Di Marco.
Dr Spry: And what does Mr Di Marco say?
Mr Harwood: Adrian basically framed what the meeting was – was called for, the fact that he had received an email from Kathy, I believe, on the Sunday that he found shocking, I think was the word he – he used, and that we needed to look at the allegations in that email as a matter of urgency. And at that point I believe – I don’t think Rebecca Gibbons was with us when we started, but at that point Rebecca was asked to join the meeting. And Rebecca then took us through point by point the – the email that she had sent to Kathy.
Dr Spry: And did she say anything else about what happened in Victoria?
Mr Harwood: She did.
Dr Spry: When she was down there on her visit?
Mr Harwood: She did. She also said that she had had a meeting with Behnam after her interviews with the – the other various staff members, and that at that meeting Behnam had indicated that he was unhappy and that he was considering taking legal action against Peter Sutching who was the product general manager for our asset management product.
279 Mr Harwood’s evidence was that he had not been surprised by what Ms Gibbons had reported “because she had already discussed the matter with me after her meeting in Melbourne” (T1093, lines 22-23).
280 His evidence of what had happened after Ms Gibbons had reported and left the meeting was as follows:
Dr Spry: And then what happens after she leaves?
Mr Harwood: After she leaves, Adrian said to the people in the meeting room, “Well, what do you think? What are your comments?” The first person to speak was Stuart. And Stuart said, “Well, this is my part of the business. I’m the operating officer for sales and marketing. I will deal with this. I will talk to Benham and I will get to the bottom of this.” And I said – then I spoke and I said, “Well, you’ve only just joined the company, Stuart”, which was true. He had been on – in the company for a matter of weeks at that point in time. And I said, “Look, I’ve been looking after that part of the business for the last 18 months. I’m – I don’t want to throw in at the deep end here. I’m happy to come and do that or, in fact, handle that for you if you wish.”
Dr Spry: When you say …
Mr Harwood: Because that should have been handled by Benham – before Stuart had arrived in the company.
Dr Spry: When you say “do that” or “handle that”, what are you referring to?
Mr Harwood: Well, what Stuart was – I was referring to what Stuart was talking about. Stuart said that as the operating officer for that part of the business, Benham was one of his direct reports. He had to take this up with Benham. And he would get to the bottom of it, right. My offer for assistance was to either do that with him or instead of him.
Dr Spry: And what – was anything further said during that meeting?
Mr Harwood: Yes. Well, Adrian said – Adrian then asked was there any other comments. There was nothing more that – Ed didn’t say anything at that point. Kathy Carr was …
Dr Spry: And by Ed you mean Mr Chung?
Mr Harwood: Sorry, I beg your pardon, Ed Chung, who had taken my role as the OO for products and solutions. And Kathy Carr made no further comments, to the best of my recollection, at that point in time. Adrian then spoke and said, “Well, Benham has to be terminated”. That was his comment to that, at which point Stuart again said that, “Well, you know, I’m Johnny on the spot. It’s my part of the business.” And he said he would handle that. And that was pretty much that meeting over. So there were no dates talked about. The – basically, what had come out was something that could not be tolerated by the business. It was certainly something that, to the best of my knowledge, no one in headquarters had any knowledge of prior to Rebecca going – Rebecca Gibbons going to Victoria and having those interviews with the sales staff.
281 He gave evidence-in-chief of a further meeting on 16 May 2016 as follows:
Dr Spry: And who was at that meeting?
Mr Harwood: There was myself, obviously Adrian, Edward Chung, Stuart, Stuart MacDonald, Kathy Carr, and I am not sure whether he was at the start, but I am pretty sure that Rod Hooper who was our chief legal counsel was also involved.
Dr Spry: And what was discussed at that meeting?
Mr Harwood: The imminent termination of Behnam.
Dr Spry: And can you recall what Mr Di Marco said, to start with him?
Mr Harwood: Yes. Well, Adrian said that the – the departure of Behnam had to happen immediately. He wanted me as the operating officer for consulting to be prepared once – once the termination had happened to be able to get to each of the regional consulting directors that reported to me so that I could tell them because it’s – it’s a big deal to – to let a – a regional manager go with 10 years experience with the business. It was – it was a major issue. So he wanted to be sure from my part of the business that I was ready to talk to my regional managers to let them know what had gone down. And he also wanted me to be prepared to get down to Victoria and talk specifically with the consultant that lived in Victoria. Victoria had a – had a quite – we had 330 consultants in the whole business, and quite a number of them lived in – in – in Melbourne. So he wanted to be sure that people knew what was happening and what was going to happen beyond that. So that was what he wanted me to do. He talked to Ed about what Ed needed to do, and Ed needed to do a similar thing with his product general managers and, obviously, make sure that they knew. And then from that it got desiccated down to the people that worked for those product general managers as well. So – so what he wanted from us was for us to get our act together to be able to do that. But I – I – I was not required to take any part in what was going to happen with Behnam. That was obviously between Adrian and Stuart with the assistance of Kathy – Kathy Carr and Rod – Rod Hooper.
282 Mr Harwood gave evidence in cross-examination that he had had a practice of keeping notes of his meetings when he had been working at TechnologyOne:
Mr Tracey: Now, before I go to the specifics, just a general question. Do I understand that at meetings when you were working at TechnologyOne you had a ring-binder notebook?
Mr Harwood: For many meetings, yes, I did. Yes, I’m – I’m old-fashioned. I believe in writing things down.
Mr Tracey: So you would take that into various meetings that you had of the executive team?
Mr Harwood: Yes. Yes. Various meetings with many different people, and over the – over the years I had hundreds of the damn things. Yes.
Mr Tracey: Would you have had that with you at the meeting on 26 April 2016?
Mr Harwood: I may have had. I can’t recall.
Mr Tracey: Now, what has happened to that notebook?
Mr Harwood: I got rid of them all the day I retired. I was out of there, so …
Mr Tracey: And at the time you got rid of them you knew this proceeding was on foot?
Mr Harwood: No. Not by – no, I didn’t. I don’t think so. It wouldn’t have even crossed my mind, this proceeding. I was retired. I was finished.
Mr Tracey: No, I’m just asking you whether you were aware this proceeding was on foot at the time you retired?
Mr Harwood: I can’t recall whether I did or I didn’t. What I can tell you is it – it had no …
His Honour: Sorry. Sorry? Right. Sorry. Again can I just invite you to – difficult though it may be, just answer the question?
Mr Harwood: Okay. Sorry. No, I can’t recall.
Mr Tracey: No. Because you retired in April 2017; is that correct?
Mr Harwood: I did.
Mr Tracey: You knew these proceedings had commenced the previous year, in the latter part of 2016?
Mr Harwood: No. No, I – I – I was unaware that it started back in 2016.
283 However, Mr Harwood later conceded that in 2016 he had been interviewed by Ms Carr as recorded in an email tendered as exhibit A81 (described as “Email Kathy Carr dated 9 June 2016 and annexures regarding general protections application of applicant”) with respect to the allegations Mr Roohizadegan had made. His evidence was as follows:
Mr Tracey: Okay. So at that point you did know that there were legal proceedings being brought by Behnam in relation to the termination of his employment?
Mr Harwood: Well, I knew that there were some allegations being – being made about me that I refuted. I didn’t necessarily know that there was any legal proceedings between TechOne and – and Behnam.
Mr Tracey: Well, if there were these allegations around it would have been prudent, would it not, to have kept your notebook of meetings?
Mr Harwood: Not at all because the – the comments in this I wouldn’t have had in a notebook meeting. It would have been hard when the conversations didn’t happen.
284 Mr Harwood acknowledged that he had attended a meeting at the Gold Coast on or about November 2009 with Mr Phare and Mr Roohizadegan, at which Mr Roohizadegan had raised his concern that revenue from the Victorian TAFE SMS had not been allocated to his business unit. His recollection however was that Mr Phare had told Mr Roohizadegan that SMS products were different to other products and that they were run out of Brisbane. (T1100, lines 12-41). Mr Harwood also accepted that he had attended a meeting in Brisbane on 17 June 2010 with Mr Di Marco and Mr Roohizadegan, at which incentives for SMS were discussed. However, he rejected the proposition that Mr Di Marco had “agreed that SMS resides in the region” (T1101, lines 4-5).
285 Mr Harwood strongly disputed a series of questions put to him in cross-examination on the premise that he had demanded Mr Roohizadegan cancel his planned 3 February 2016 meeting with Mr Di Marco and had threatened to scrutinise Mr Roohizadegan until he left Technology One. As to the events in Brisbane on 3 February, his evidence was as follows:
Mr Tracey: So I will take you to that day of 3 February, the actual meeting. And Adrian said – well, first of all, the three of you were there in Adrian’s office; is that right?
Mr Harwood: That’s incorrect.
Mr Tracey: Were in your office?
Mr Harwood: No.
Mr Tracey: Where were you?
Mr Harwood: I was in my office. Adrian and Behnam were in – in Adrian’s office.
Mr Tracey: I’m asking you about the time when the three of you are together? Okay. I beg your pardon. Yes, I was – I was asked by Adrian’s EA to join them in Adrian’s office.
Mr Tracey: Yes. She brought you into Adrian’s office, where you found Behnam and Adrian; is that right?
Mr Harwood: Correct.
Mr Tracey: Yes. And Adrian then said to the two of you, “I think the world of both of you. I like you both. What is the issue?”?
Mr Harwood: I believe he said words to that effect, yes.
Mr Tracey: And Behnam said that he would like to recruit his own sales, to have his own resources; that’s what he said initially?
Mr Harwood: That’s incorrect.
Mr Tracey: And he said, “I like to not be undermined. I don’t like decisions being made behind my back.”?
Mr Harwood: That’s incorrect.
Mr Tracey: And he referred to wanting to recruit Philip Pantano the previous year?
Mr Harwood: That is correct.
Mr Tracey: And you pointed out Philip Pantano had applied twice in 2016 for a job?
Mr Harwood: Correct.
Mr Tracey: And he – this is Behnam – he pointed out to Adrian and you that he wanted Philip Pantano as his sales manager?
Mr Harwood: Correct.
Mr Tracey: And he didn’t want to give a guaranteed commission to Boris?
Mr Harwood: That is also correct.
Mr Tracey: And when he mentioned Philip Pantano, you immediately said, “Who, Philip Pantano? Over my dead body”?
Mr Harwood: That’s incorrect.
Mr Tracey: And you said, “Over my dead body. I don’t want Philip”?
Mr Harwood: That’s incorrect.
Mr Tracey: And Behnam said, “But Philip, he’s a proven person. He used to work for us as a salesperson and as a sales manager”?
Mr Harwood: That’s incorrect. He didn’t work for us as a sales manager. He worked for us as a – as a sales rep.
Mr Tracey: As a sales rep. Behnam said that to you, that Philip Pantano worked as a sales rep?
Mr Harwood: I – I can’t recall. He – he may have – he may have said that, but I don’t he said he was a sales manager, because he only worked in Victoria, and Behnam knew that there was no sales manager in Victoria until we – we put Richard Metcalfe in there on a pro tem basis.
Mr Tracey: So he – Behnam said that – Behnam referred to having been forced to having Richard Metcalfe as his sales manager?
Mr Harwood: He was not forced, so …
Mr Tracey: No. This is what Behnam referred to?
Mr Harwood: Yes. He may have done.
Mr Tracey: Yes?
Mr Harwood: Yes.
Mr Tracey: And being forced to have Richard was part of your undermining of Behnam, wasn’t it?
Mr Harwood: That’s incorrect.
Mr Tracey: Now, the conversation continues. You say, “I don’t want Philip to be your sales manager”?
Mr Harwood: I did.
Mr Tracey: And Behnam said, “Well, Philip would be reporting to me, Martin, not you”. That’s what …?
Mr Harwood: That – that he did say.
286 Mr Harwood acknowledged that he had been a member of the interview panel which had recommended Mr MacDonald to replace himself as Operating Officer for Sales and Marketing. His evidence was that the interview panel for “low positions” normally consisted of the other Operating Officers who were available. Mr Di Marco had confirmed that recommendation.
287 His evidence as to the overlap period in which they had then shared that role was as follows:
Mr Tracey: No, no. That’s fine. And as I understand it, on 12 April which is about the time Mr MacDonald commences you organise a telephone conference call with all of the direct reports for your position?
Mr Harwood: That’s correct.
Mr Tracey: And that was so that you could introduce Mr MacDonald to all of his new direct reports?
Mr Harwood: That’s correct.
Mr Tracey: And you said that you and Mr MacDonald would be shadowing each other for a period of six months?
Mr Harwood: That’s incorrect.
Mr Tracey: And the reality is, as I understand it, that you did assist Mr MacDonald in the early stages of his role?
Mr Harwood: Yes. But what – the – the arrangement that I came to with Stuart was that I would worked with him in handover mode for a month.
Mr Tracey: Right?
Mr Harwood: But – but we never got to a month. It was all over in two weeks because of the pressure that I had to take up my new duties as the OO for consulting services. And Stuart was very keen to – to be hands-on himself. So after two weeks our planned handover of the month was over.
Mr Tracey: So do I understand that during your – what was your handover, what ended up being your handover, you went down to Melbourne to Stuart for a meeting with the Melbourne office?
Mr Harwood: Yes. I – I do believe that I – I went down there. My – my reason for going would have been to – to introduce him for the first time. But I also had another reason to be there to meet a potential candidate for the consulting business.
Mr Tracey: And was that on or about 27 April that you went down to Melbourne with him?
Mr Harwood: Yes. That would – that would be – be right according to my recollection. Yes.
288 Mr Harwood said he did not recall whether when he and Mr MacDonald were in Melbourne on the occasion when Mr Roohizadegan had complained about his being marginalised. He rejected that Mr Roohizadegan had asked them whether they were trying to get rid of him or trying to make him resign (T1110, lines 22-30).
289 In respect of licence fees in Victoria and other regions Mr Harwood conceded that, notwithstanding TechnologyOne’s objective of growing its fees by 10-15% each year, it was inevitable that results in every region by their nature would not smoothly increase year on year. Taken by Mr Tracey to a report of TechnologyOne’s summary of licence fees from 2006 to 2017, he gave the following evidence:
Mr Tracey: Now, I will just ask you to look first of all at Victoria which is the top row?
Mr Harwood: Yes.
Mr Tracey: You will see there that starting with financial year 2007 you have a figure of 107 per cent licence fee growth?
Mr Harwood: Over the previous year. Yes.
Mr Tracey: Over the previous year?
Mr Harwood: Correct.
Mr Tracey: And then you have a series as you go from across the page to the right?
Mr Harwood: Yes.
Mr Tracey: A series of percentages?
Mr Harwood: Correct.
Mr Tracey: Some of which are representative of increased growth and some of which are representative of decreased growth?
Mr Harwood: Correct.
Mr Tracey: And they vary from year to year?
Mr Harwood: They do indeed.
Mr Tracey: And I won’t ask you to look at every other region, but that’s the same reality for each region, isn’t it, that you have …?
Mr Harwood: Yes, it is.
Mr Tracey: … quite a bit of variation?
Mr Harwood: Yes, it is.
Mr Tracey: So you don’t have a consistent trend that is identifiable over that period in each region, do you?
Mr Harwood: Over the period 2006 to 2016, no.
Mr Tracey: And what you can see, for example, is that in some regions – let’s look at Tasmania – you can have figures that change quite dramatically. If you look at financial year ’13 and financially year ’14 …?
Mr Harwood: Yes.
Mr Tracey: … you have a figure in the first of those financial years of 52 per cent negative growth?
Mr Harwood: Correct.
Mr Tracey: And then in the financial year 2014, you have a figure of 284 per cent positive growth?
Mr Harwood: Yes, that’s right – on – on very small numbers, and that’s why …
290 Mr Harwood then conceded that what he had said to Mr Roohizadegan and told Mr Di Marco regarding licences fees in Victoria being at risk of going backwards for a fourth year in a row was incorrect:
Mr Tracey: So just a couple of further questions about this, Mr Harwood. It’s not true, is it, that, as you said at one point to Mr Di Marco, Victoria was – had been – would be going backwards for a fourth year?
Mr Harwood: No, it wasn’t correct. It – it should have been a third year.
291 Mr Harwood further conceded that the full year figure for Victoria for 2016 had seen growth of 9.9% in licence fees. However, he observed that Mr Roohizadegan had left by the end of that year. Cross-examined in respect of the import of that observation, his evidence was as follows:
Mr Tracey: Well, a large …?
Mr Harwood: We got to – yes, full year result was 9.9, but Behnam left, obviously, through – about halfway through – just beyond halfway through that year.
Mr Tracey: A few months to go, Behnam left. But he had already secured the La Trobe deal at that point, hadn’t he …?
Mr Harwood: No.
Mr Tracey: … in effect?
Mr Harwood: I think – I think La Trobe had not been signed when Behnam left.
Mr Tracey: Behnam had, in effect, secured it, and it was just about – it was about to close when he was terminated?
Mr Harwood: No. No deal is – is secured until it’s signed.
Mr Tracey: All of the work had pretty much been done by Behnam on the La Trobe at the time of his termination, hadn’t it?
Mr Harwood: The deal was well advanced. Okay.
Mr Tracey: It was so well advanced that a matter of weeks after Benham’s termination it, in fact, closed, namely, in June 2016?
Mr Harwood: That may well be correct. I was not running sales then so it wasn’t my issue.
Mr Tracey: Benham had also undertaken a substantial amount of work on the Wesley College deal at this time?
Mr Harwood: I can’t recall. Wesley College was one of the deals that – we’re going back three, three and a-half years, but Wesley College was on the deals I think that was in his forecast for that year.
292 Taken to the report he had prepared in April 2016 for a meeting of TechnologyOne’s board on 13 May 2016, Mr Harwood accepted that the extract from that report he had included in his affidavit omitted any reference to his predictions for the second half of that financial year. His evidence then was as follows:
Mr Tracey: So at the time you produced this report, I think you say, at the board meeting on 13 May …?
Mr Harwood: Yes.
Mr Tracey: … you were comfortable in saying to the board:
We feel confident about most of the deals above.
Mr Tracey: Do you see that?
Mr Harwood: Yes. I do.
Mr Tracey: And then you refer to the risk about the supporting pipeline?
Mr Harwood: Correct.
Mr Tracey: But that doesn’t alter the fact that you were able to say to the board at that point, 13 May that …?
Mr Harwood: Correct.
Mr Tracey: … you were confident about those deals closing?
Mr Harwood: Yes. I had – I had confidence that we could get to another six million and get to somewhere between nine and 10 which is what happened, but it certainly wasn’t the 16 that Behnam had been talking about.
Mr Tracey: I didn’t ask you about that?
Mr Harwood: No. That’s true.
Mr Tracey: I’m just asking you about whether you were …?
Mr Harwood: That’s true.
Mr Tracey: … convinced at that point …?
Mr Harwood: Yes.
Mr Tracey: … 13 May that you were confident that those deals would all close in that financial year?
Mr Harwood: I had confidence that those deals would close. Yes.
Mr Tracey: Yes. And that was why you were expecting a much stronger half …?
Mr Harwood: Correct.
Mr Tracey: … to that financial year …?
Mr Harwood: Yes.
Mr Tracey: … for Victoria?
Mr Harwood: Yes. For these second half.
Mr Tracey: For the second half?
Mr Harwood: Yes. Given that we were 35 per cent down on the previous year for the first half we needed to do that.
Mr Tracey: And if you look at those particulars deals, the seven deals, you would agree with me that Behnam was involved in facilitating all of those deals, wasn’t he?
Mr Harwood: Well, they were all part of his remit. He’s responsible for everything that happens in Victoria from a sales perspective. So clearly.
293 In cross-examination, Mr Harwood also accepted that he had made no reference in his sworn affidavit to Mr Di Marco having decided to dismiss Mr Roohizadegan at the meeting of the Executive Team held on 26 April 2016. He conceded that his affidavit had included a reference to that decision being made at a subsequent meeting held prior to 12 May 2016. In that regard he gave the following evidence:
Mr Tracey: … and you said:
I do not recall when that discussion took place, but I do recall that it happened prior to an incident between Behnam and Stuart on 12 May 2016.
Mr Harwood: Yes. Correct.
Mr Tracey: And then you say:
In this meeting it was decided that Behnam’s employment with TechnologyOne had to be terminated.
Mr Harwood: We had that – that reaffirmed what was said on the meeting of the 26th.
Mr Tracey: Well, you never referred at all in relation to the meeting of the 26th as having discussed the termination of Behnam’s employment at that meeting, did you?
Mr Harwood: We did.
Mr Tracey: Well, no. In your affidavit, I’m putting to you, Mr Harwood, you referred to the 26 April 2016 meeting, but you did not say in your affidavit that a decision was made to terminate Behnam’s employment at that 26 April meeting, did you?
Mr Harwood: Well, that was an omission, but it was certainly said.
Mr Tracey: It was a pretty significant omission, wasn’t it, Mr Harwood, if it were true?
Mr Harwood: It’s an omission.
Mr Tracey: Yes?
Mr Harwood: There’s no doubt at that.
294 Mr Harwood further conceded that he had been mistaken in denying any knowledge that Mr Roohizadegan had threatened legal action in respect of bullying by Mr Sutching. However, he denied that that fact had had any bearing on the thinking of those attending the meeting of the Executive Team on 26 April 2016. To explain, he gave the following evidence:
Mr Tracey: And that was a matter of great concern at the meeting, wasn’t it, that he …?
Mr Harwood: No, not at all.
Mr Tracey: … was planning to take action?
Mr Harwood: Or the meeting. I don’t – do not believe anyone in that meeting was particularly bothered about that. What we were bothered about was something that came out as a surprise to all of us that there was significant bullying, intimidation and humiliation happening to our employees.
Mr Tracey: Hang on a minute, Mr Harwood. Significant bullying and intimidation and the like, these were only allegations, weren’t they?
Mr Harwood: They were allegations of people who were working for Benham.
Mr Tracey: Yes, and Benham – had these allegations been put to Benham to your knowledge when you were discussing them at the 26 April meeting?
Mr Harwood: Not to my knowledge.
Mr Tracey: No. So how possibly could you form a reasonable belief that any of them had any basis whatsoever?
Mr Harwood: Because I knew the people concerned and I had no reason to believe that they would lie.
Mr Tracey: Well, surely you’ve got to put it to Benham to find out whether or not he says they’re true?
Mr Harwood: I didn’t have to put it to Benham.
Mr Tracey: Well, yes, you did as a matter of fairness before you jumped to a conclusion that these people were making truthful allegations?
Mr Harwood: I still believe they were making truthful allegations.
Mr Tracey: So you’re not willing to accept that that was completely unfair of you just to jump …?
Mr Harwood: Not at all.
Mr Tracey: … to that conclusion. You’re aware that there was no investigation into those allegations undertaken?
Mr Harwood: I’m completely unaware at that stage.
Mr Tracey: You didn’t call for such an investigation to occur?
Mr Harwood: It wasn’t my duty to do that.
295 Mr Harwood denied that it had suited him to believe the allegations against Mr Roohizadegan:
I had no reason to have any malice towards Benham, but I had every reason to believe that those people would not make up those stories. I believed that that then and I believe that now.
296 Taken to passages in his affidavit that refer to Mr Di Marco having requested that a third meeting of the Executive Team be held on 16 May 2016 to discuss whether Mr Roohizadegan should be dismissed, Mr Harwood gave the following evidence:
Mr Tracey: And then there’s a third meeting, as I understand it, which is on – which Adrian requests on 12 May 2016 …?
Mr Harwood: That’s correct.
Mr Tracey: And that’s him requesting that the executive team meet on 16 May …?
Mr Harwood: Correct.
Mr Tracey: … 2016?
Mr Harwood: That’s correct.
Mr Tracey: And you’ve referred to that in your affidavit again in a part that is not read. The heading to the meeting invitation was “discuss the strategy for Melbourne”?
Mr Harwood: Yes.
Mr Tracey: And then you said – you deposed:
In the 16 May 2016 meeting, the executive team talked about the fact that Benham’s employment with TechnologyOne should be terminated.
Mr Harwood: That’s correct.
Mr Tracey: And that was what you deposed in your affidavit?
Mr Harwood: That’s correct.
Mr Tracey: And the reason that it was the case that the executive team talked about the fact that Benham’s employment with TechnologyOne should be terminated – this is on 16 May …?
Mr Harwood: Yes.
Mr Tracey: … was because at that point, it had still not been decided that Benham’s employment would be terminated. That’s right, isn’t it?
Mr Harwood: That’s not correct at all.
297 The Applicant submits that:
7.38 Mr Harwood was not a satisfactory witness. He gave evidence that was inconsistent with the evidence in his affidavit. He sought to say, for the first time in the witness box, that the decision to terminate the Applicant’s employment was made in the 26 April 2016 meeting. He also sought, at length, to create a case for dismissal based upon licence fee growth, yet on his own evidence that was not even the subject of discussion at the meeting on 26 April 2016.
7.39 Mr Harwood is not a credible or reliable witness, and the Court should give his evidence little weight. Where his evidence conflicts with that of the Applicant, the Applicant’s evidence should be preferred.
298 The Respondents submit that:
Mr Harwood has retired. He has no ongoing relationship with Technology One. He gave his evidence openly and made observations about the processes that should have happened regarding a bullying complaint. He did concede that he had interactions with the Applicant, however, he was adamant that the allegations of the threat did not occur. Mr Harwood was cross-examined at some length about his interactions with the Applicant in early February 2016 (T1101-1104). He strongly denies that he said to the applicant “One of us has to go” (T1103). He strongly denies that he said he would scrutinise the Applicant if the Applicant did not leave Technology One (T1104). Mr Harwood had formed the view by early January 2016, and well before any of the complaints upon which the Applicant relies were made, that the Applicant was no longer performing and that the Victoria region was going backwards (CB4676-4677). Again, well before any of the complaints on which the Applicant relies were made, Mr Harwood raised his concerns about the performance of the Victoria region, the fact that Victoria had not grown for three years, that the Applicant took no personal ownership of this and that if the issues could not be fixed ‘he will have to go’ with Mr Di Marco by email on 20 January 2016 (CB4722). Mr Harwood has no reason not to tell the truth. His evidence should be accepted.
299 As Dr Spry submits, and I accept, Mr Harwood had an attractive and open manner when giving his evidence. He exhibited the natural confidence of a man accustomed to the good regard of others. I accept that evaluated on demeanour and presentation alone, Mr Harwood gave every appearance of being a credible and persuasive witness.
300 I accept that Mr Harwood was a savvy and experienced senior executive with a strong track record in TechnologyOne. I accept that it was on his recommendation that TechnologyOne changed from a method of incentivising its new Regional Managers on a Profit Before Tax basis to one based on licence fees. It is entirely understandable in those circumstances that Mr Di Marco would have valued Mr Harwood’s contribution to TechnologyOne, and reposed great confidence in him.
301 However, I have formed a poor impression of Mr Harwood’s credit.
302 Dr Spry submits that the Court should accept Mr Harwood as a credible witness in these proceedings because he “did concede he had interactions” with Mr Roohizadegan. However, such a limited concession does not justify the Court accepting that Mr Harwood was frank and truthful when giving his evidence.
303 A finding by the Court that Mr Harwood had had “interactions” with Mr Roohizadegan was inevitable.
304 “Interactions” is however an altogether too euphemistic expression to describe the circumstances as I accept occurred. In the specifics of this proceeding I have concluded that much of Mr Harwood’s evidence cannot be accepted. In particular it was entirely unsatisfactory with respect to his history with, and conduct towards, Mr Roohizadegan. Notwithstanding the seriousness of my making such a finding, I am satisfied that in those respects Mr Harwood sought to downplay his antipathy and history of antagonistic conduct towards Mr Roohizadegan in contrast with what he knew to be the truth. I am also satisfied that Mr Harwood’s generally calm confidence and reassuring demeanour was something of a veneer. On occasions, under pressure in cross-examination Mr Harwood displayed an edge of anger.
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.
306 What may have particularly galled Mr Harwood and prompted him to direct Ms Carr to plan for Mr Roohizadegan’s termination was that Mr Roohizadegan (I accept provocatively) had complained in an email which he had copied to Mr Di Marco that he “cannot run [his] region in parallel with a fifth column” (Ex R12, CB4274-4275).Whether that was the trigger for Mr Harwood asking Ms Carr to put in place a plan to dismiss Mr Roohizadegan need not be conclusively determined. That is because I am satisfied in any event that I am entitled to find that there was a history between the two men in respect of which Mr Harwood had come to resent Mr Roohizadegan for disrespecting him and going over his head to Mr Di Marco whenever their views had differed. In that regard, Ms Carr gave unchallenged evidence as follows:
Mr Minson: So you will see after paragraph 4 you have a heading in your affidavit called 18 – sorry. You have a heading over on page 457 called Background to the 18 May Meeting. And this is where you jump back in time to the beginning in time of …?
Ms Carr: Yes.
Mr Minson: … what you describe as the long history. And you go on to give some examples of that long history. And the first is that Mr Harwood had told you that Benham didn’t respect him and was often very rude towards him?
Ms Carr: Correct.
Mr Minson: Is that right? And an example of that was that even though Martin was Benham’s boss, Benham would often escalate complaints over his head directly to Adrian?
Ms Carr: Yes.
Mr Minson; And Martin felt that that disrespected him; is that right?
Ms Carr: Yes.
307 That his antipathy had a long history is consistent with Mr Harwood’s own acknowledgement that he had started to raise the fact that Mr Roohizadegan might not be the right person for the job with Mr Di Marco and Ms Carr as early as 2012. That he resented Mr Roohizadegan’s closeness to Mr Di Marco is reinforced by his own evidence: he had considered Mr Di Marco to have had a “blind spot” when it came to Mr Roohizadegan.
308 I note that around that same time as he was instructing Ms Carr to put in place plans to terminate Mr Roohizadegan, Mr Harwood had given Mr Roohizadegan a “B” rating when he had applied TechnologyOne’s internal ABC assessment tool. A manager who has rated a subordinate as “successful, consistently achieves performance expectations” (Ex A14) can be expected to find it challenging to persuade a court that they were acting other than vindictively if at the same time they were instructing the head of their company’s human resources department to prepare a plan for that subordinate to be dismissed.
309 Dr Spry submits that Mr Harwood was cross-examined extensively regarding the events of early 2016, and was not shaken in his strong denial of having said to the Applicant “one of us has to go” and that he would scrutinise Mr Roohizadegan if he did not leave TechnologyOne.
310 Dr Spry submits that Mr Harwood had no reason not to tell the truth, and accordingly that his version of events should be preferred.
311 I reject that Mr Harwood had no reason not to tell the truth. Retirement does not immunise a person from wanting to avoid the adverse reputational consequences of a potential finding as might reveal them to be vindictive and incapable of putting aside their resentment of a subordinate who had gone over their head to complain. Having regard to the sequence of events that transpired, Mr Harwood was too scrupulous to deny anything that might suggest he entertained any resentment of Mr Roohizadegan for his version of those events be accepted as credible.
312 I am unpersuaded by Dr Spry’s submission that Mr Harwood’s strong denial of using the words Mr Roohizadegan gave evidence of him saying is dispositive. His denials are inconsistent with the contemporaneous notes Mr Roohizadegan made of their exchanges (Ex A11) which record Mr Harwood demanding that he not attend a meeting with Mr Di Marco, and explicitly telling him that if he did then “one of us has to go”. I have earlier explained why I have accepted Mr Roohizadegan’s contemporaneous notes in preference to Mr Di Marco’s recall of what was said and done where they conflict. The same equally applies in Mr Harwood’s instance. To make it plain, I prefer and accept Mr Roohizadegan’s evidence supported by his contemporaneous notes where it conflicts with that of Mr Harwood with respect to the words spoken between the two of them.
313 That conclusion has broader repercussions. In his affidavit at paragraphs  to , Mr Harwood provides an entirely different detailed version of what he asserts was said and occurred. He asserts in paragraph  he “had absolutely no problem with Benham [Roohizadegan] meeting with Adrian Di Marco because this was in line with any other Regional Managers raising issues or concerns with the boss”. In light of what had previously transpired and Ms Carr’s evidence as discussed above, I am satisfied that Mr Harwood did resent Mr Roohizadegan going over his head to the boss. In those circumstances, I reject that his detailed alternative account can be attributed to honest but false recall. It was knowingly false.
314 Mr Harwood’s willingness to give false evidence in that regard causes me to hesitate to accept any part of his evidence relating to his dealings with Mr Roohizadegan.
315 My hesitation is reinforced by my scepticism of his explanation for destroying his extensive collection of notebooks as may have contained a record of the relevant events.
316 It may be recalled that Mr Harwood gave evidence that he was “old-fashioned” and had believed in “writing things down” (T1111). He had had a practice of taking ring binder notebooks into meetings; his evidence was that “over the years I had hundreds of the damn things” (T1111). Mr Harwood retired from his employment with TechnologyOne nearly a year after Roohizadegan was dismissed. His evidence was that he had disposed of all his notebooks on the day he retired (T111).
317 Mr Tracey asked Mr Harwood whether he had disposed of the notebooks after he had become aware that this proceeding was on foot. Mr Harwood said that he could not recall whether that was the case (T1111). However, he conceded that no later than 9 June 2016:
I knew that there were some allegations being – being made about me that I refuted. I didn’t necessarily know that there was any legal proceedings between TechOne and – and Behnam (T1115-1116).
318 It is a matter of record that Mr Roohizadegan filed an originating application in these proceedings on 19 August 2016. Lawyers for TechnologyOne filed a notice of acting on 23 August 2016. It is beyond commonsense that knowledge of that proceeding would not immediately thereafter have been the subject of widespread discussion within the leadership of TechnologyOne. I am satisfied that it is improbable that it would not have come to Mr Harwood’s notice.
319 It is accordingly implausible to a degree as entitles me to infer a want of frankness on his part that Mr Harwood had no recall of disposing of his notebooks after he had become aware of these proceedings.
320 I also have no confidence in Mr Harwood’s credit with respect to the evidence he gave about the prospect of licence fees in Victoria under Mr Roohizadegan’s leadership going backwards for a fourth year.
321 It may be accepted that when in cross-examination he was asked about that claim, Mr Harwood immediately conceded that he had not been correct. Given however that he had just been shown TechnologyOne’s records as demonstrated that in the first of those four financial years Victoria had generated 77% growth, that concession was inevitable. However, Mr Harwood conceded only that what he had claimed had been wrong because “it should have been for a third year”.
322 It was only after painful extraction that Mr Tracey obtained Mr Harwood’s acknowledgement that in a report to the Board in April 2016 he had expressed confidence, having regard to seven particular deals including a large one with La Trobe University, that the third year would also see growth in Victoria’s licence fees. It was similarly only after painful extraction that Mr Harwood conceded that those were deals for which Mr Roohizadegan had been responsible. He ultimately did not dispute that there had been growth of 9.9% in licence fees for Victoria in that third year.
323 I am satisfied that even if Mr Harwood is to be given the benefit of the doubt in that he may have been honestly concerned about the prospect of growth in the third year at the time he initially raised the matter with Mr Roohizadegan, by April 2016 he knew (and TechnologyOne had been advised at board level) that licence fees in Victoria would not decline in that financial year.
324 My poor impression of Mr Harwood’s credit was reinforced by his responses under cross-examination with respect to TechnologyOne employee Peter Sutching. In his affidavit of 20 December 2017, Mr Harwood had deposed that:
I was not aware at the time of [the 26 April 2016 meeting] that Benham made a complaint to Rebecca on 20 April 2016 threatening to bring legal proceedings because of alleged bullying by Stuart, Peter [Sutching], Marie or myself. I did not become aware of this until these proceedings. This was not discussed in the 26 April meeting.
325 After Mr Harwood was shown a copy of the email he had received from Ms Gibbons on 24 April 2016, he conceded that he had known from that time that Mr Roohizadegan had made a bullying allegation with respect to Peter Sutching and was “considering legal action due to this” (T1058-1059).
326 His denial in his affidavit of his having known that Mr Roohizadegan had made a bullying complaint and was threatening legal action is in those circumstances so implausible as to invite derision.
327 Notwithstanding the caution a court should adopt in making such a finding, for the reasons I have given I am satisfied that Mr Harwood was not a witness of the truth in respect of the evidence he gave concerning his relationship with and dealings with respect to Mr Roohizadegan.
328 I should however also say something regarding Mr Tracey’s submission that Mr Harwood was not a satisfactory witness because he sought to claim in the witness box, for the first time, that the decision to terminate the Applicant’s employment had been made in the 26 April 2016 meeting. The obvious truth of that criticism can be accepted. On one level however it might be thought to be at best a trivial point, because every other witness called on behalf of TechnologyOne who attended that meeting confirms that Mr Di Marco stated that on that occasion.
329 However, the point has far more significance than at first sight it appears. It is uncontentious that Mr Harwood had prior knowledge of the content of Ms Gibbons’ email. Ms Carr’s evidence is that when Mr Di Marco had sought the opinion of others in the meeting, Mr Harwood had responded “You know my views” (T1027, line 27). Ms Carr’s evidence is that she inferred from his reply that Mr Harwood and Mr Di Marco had already spoken about what was to be done before the meeting.
330 I therefore do not discount that Mr Harwood’s otherwise puzzling omission to record that the decision to dismiss Mr Roohizadegan was made on 26 April 2016, and his affirmative assertion that the decision had been made some days later after the State Managers’ Meeting (T1126, line 20-T1127, line 11), was simply the truth as Mr Harwood understood it at the time he swore his affidavit.
331 As a result of his and Mr Di Marco’s prior discussions Mr Harwood may have known that whatever Mr Di Marco had agreed to say during the meeting of the Executive Team later that day, that as at 26 April 2016, he as the ultimate decision maker was yet to be convinced that it was, or would be, necessary to dismiss Mr Roohizadegan.
332 Mr MacDonald gave evidence that he is currently employed as TechnologyOne’s Chief Operating Officer. He had commenced employment with the company on 11 April 2016 in the role of Operating Manager for Sales and Marketing. He initially worked in that capacity with Mr Harwood “who was transitioning out of that role” for a planned two month transition period (Ex R56, CB443 ).
333 Mr MacDonald’s evidence is that once he was appointed to that positon, Mr Roohizadegan reported to him. He had formed the opinion that Mr Roohizadegan was not able to transition to effectively manage the maturing business. That was because he was not able to “release his control of the [sales] team’s activities to allow them to do their sales team activities” (CB437, ).
334 Mr MacDonald gave evidence to the effect that he had formed the view that Mr Roohizadegan was taking advantage of TechnologyOne:
14. Benham’s remuneration relied on him achieving profits and, in my opinion, he gave no consideration to the growth of the business. The Victorian region continued to profit despite stagnant and/or declining licence fee sales (which is how TechnologyOne measures growth). Benham was still earning a lot of money even without growing the business by selling new licences because the Victorian region continued to show profit due to income generated through other annuity revenue streams such as Annual Service and Maintenance fees and Consulting Services fees. These fees were generated from previous licence sales.
335 His evidence about why he instructed Mr Roohizadegan not to attend TechnologyOne’s Bass Coast Shire presentation was as follows:
22. In my view, it was not a valuable use of Benham’s time to go to the Bass Coast Shire presentation. I did not make this decision for any reason other than the fact that a lot of people were already going and Benham did not need to go. I was not aware that Behnam had made a complaint against Martin [Harwood] to Adrian Di Marco on 3 February. I was also not aware that Benham had made a complaint about unpaid incentives. I only became aware of these issues when preparing this affidavit in the course of these proceedings.
23. Adrian Di Marco became aware of my instructions that Behnam was not to attend the Bass Coast Shire presentation. Adrian asked me why I did not send Behnam to Bass Coast Shire and I advised him that I did not consider that it was an efficient use of resources. I do not recall the specifics of what Adrian told me, however I interpreted Adrian’s instruction to allow Behnam to attend the Bass Cost Shire presentation as meaning that I should ‘back off’ on Behnam because I had bigger issues to deal with at the time.
24. It appeared to me that when Benham did not go to the Bass Coast Shire presentation he believed there was a perception that Marie Phillips had won an argument about it and that by excluding him from the Bass Coast Shire presentation he was now being marginalised in TechnologyOne. I did not consider that his concerns were legitimate at that stage as I had not even met Benham face to face. I recall that Benham said words to the effect of ‘I am highly embarrassed by this (Bass Coast Shire presentation) and everyone thinks that Marie has won’. I was aware that Behnam was referring to an email trail between Peter Sutching, Marie and me. In the email trail Peter and Marie expressed the view that Benham did not need to attend the Bass Coast Shire presentation. Benham disagreed with their view and took offence at what appeared to be, in his view, Peter and Marie trying to tell him how to run his region. Attached and marked as ‘SDM-2’ is a copy of an email trail between Marie, Benham and me from 11 April 2016 to 13 April 2016 about who would attend the Bass Coast Shire Presentation.
336 He later acknowledged that he had received complaints from Mr Roohizadegan about his having been bullied by Marie Phillips and Peter Sutching (CB442, -) in respect of their interference in his management of his region.
337 Mr MacDonald gave the following evidence as to what he had said to Mr Roohizadegan after his having met with the sales staff of the Victorian region:
51. I recall speaking with Benham about his management of the sales team after my business review of the Victorian region. To my mind, Benham needed to move away from acting like a senior sales persons and he needed to start managing his sales team because the Victorian region was lacking effective management. I had a conversation with him on the phone and I recall that I said words to the effect of ‘You’ve got to take this energy and put it into your team. You can’t control it. You’ve got to take the energy you have which I’m proud that you have and I want to harness, but you’ve got to grow your team with that energy. You can’t contain it. We hire these people, we go through the interview process, we pay them well and we need to engage them to do the job that they do. If you control like you do, we will never succeed because we can’t get that maturity curve’.
338 His oral evidence-in-chief, after formalities, commenced as follows:
Dr Spry: Now, Mr MacDonald, if I could just ask you some questions about 26 April 2016. Now, you will recall from the day previous you were copied into, or you received an email from – ultimately from a Ms Gibbons about ...?
Mr MacDonald: Yes.
Dr Spry: … about her visit to Victoria?
Mr MacDonald: Yes.
Dr Spry: Now, did you read that email …?
Mr MacDonald: Yes.
Dr Spry: … at the time? And what was your reaction to it?
Mr MacDonald: It was in line with my expectations.
Dr Spry: And what were those expectations?
Mr MacDonald: That there was an issue in the Victoria office related to the team not being – the workplace was not a comfortable place for them to work in.
Dr Spry: And what led you to that view prior to receiving the email from Ms Gibbons?
Mr MacDonald Multiple points. Point 1 would be I had spent some time in the region. I had met with all the sales people prior to and I had got the same sense during those one-on-one meetings that I had. I had spent some time with Benham himself and had seen the way that he acted related to issues, and so validated it again. And then there was an issue that we were trying to get a dinner organised with a customer from Melbourne Uni, and the challenging exercise was heavy going there. It all validated the controlling nature that I was seeing. Also through the interviews or discussions I had with the sales team, all validated through that email.
339 His evidence was that prior to the meeting of the Executive Team, he had attended a meeting with Mr Harwood and Ms Carr because “we wanted to understand each other’s position before we went in …”:
Dr Spry: And what was your position that you expressed at that meeting?
Mr MacDonald: My position was I did not believe that Benham had the capability to grow the region and based on that key point, that we needed to do something to resolve that.
Dr Spry: And when you say “we needed to do something to resolve it”, what did you have in mind?
Mr MacDonald: To move him on.
Dr Spry: And when you say “move him on”, what do you mean by that?
Mr MacDonald: To terminate his employment.
340 He gave the following evidence as to the meeting of 26 April 2016:
Dr Spry: This is the meeting following the short meeting with – the meeting between Ms Carr, Mr Harwood and …
His Honour: On 26 April?
Dr Spry: On 26 April, yes. So we’re on 26 April. There’s a meeting that you’ve been invited to with Mr Di Marco, Mr Chung, Ms Carr, Mr Harwood and yourself – 26 April. Now could you tell the court what Mr Di Marco said during that meeting?
Mr MacDonald: Yes. It was Adrian Di Marco’s meeting. He ran the meeting. He asked for our position. We all gave our position. At the end of that Adrian concluded that we needed to terminate Behnam and to draw up plans
His Honour: Sorry. Just, again, it would assist if you were just a little slower?
Mr MacDonald: Sorry. I apologise, sir.
Dr Spry: What did he say first when the meeting started? Did he start speaking?
Mr MacDonald: It was Adrian’s meeting so he absolutely started speaking. He …
Dr Spry: And what did he say?
Mr MacDonald: He asked for our position. He wanted to know Martin’s position, Kathy’s position and my position. So we provided our position.
Dr Spry: At some point did Ms Gibbons come to this meeting?
Mr MacDonald: I don’t recall.
Dr Spry: Okay. Sorry. I’m sorry to interrupt you. Keep going?
Mr MacDonald: Yes. It was the basis of the email from Ms Gibbons that was – that was the conduit that brought us all together. And through that review, Adrian saw that there was a – an untenable issue that needed to be resolved. And as a conclusion of Ms Gibbons’ email, Martin’s feedback of history, my feedback related to what I’ve seen in the region and the history related to growth, it was decided by Adrian that we needed to move on.
Dr Spry: Now, following that meeting, did you then plan any role in taking any steps to facilitate the termination of Mr Roohizadegan’s employment?
Mr MacDonald: Yes.
Dr Spry: And what were those steps?
Mr MacDonald: I was asked to be involved in building the plan to terminate Behnam as a result of the decision by Adrian. And so – there was a communication plan developed. And also, it was understood that I would be the one terminating through that termination plan.
Dr Spry: And when was that to occur?
Mr MacDonald: Somewhere around 6 or 9 May, from memory.
Dr Spry: Clearly that didn’t happen. Why didn’t that happen?
Mr MacDonald: All right. If I could go back. It was – it was supposed to – as I remember it, supposed to transpire after confirming the La Trobe opportunity and prior to the State Manager meeting.
Dr Spry: Right? In that window. Why did it not happen? Yes?
Mr MacDonald: When we gave our draft communication plan to Adrian, he reviewed it, didn’t think that it was complete enough and he also wanted to look at the compensation package because he didn’t think it was fair enough. And he also decided that he should be the one to do that work.
341 Mr MacDonald gave no evidence-in-chief as to the events of 12 May 2016 in respect of which Mr Roohizadegan had complained that he had been bullied.
342 In cross-examination Mr MacDonald initially continued to maintain that he had visited Melbourne in the first fortnight following his appointment for a period of “two days, a day and a half” (T969, line 30-T970, line 7) during which time he had met both Mr Roohizadegan and his staff and that this had informed his input to the meeting of TechnologyOne’s Executive Team on 26 April 2016. He rejected that his first visit to Melbourne was on 27 April 2016: after that time at which on his evidence Mr Di Marco had already made the decision to terminate Mr Roohizadegan:
Mr Tracey: When do you say that the first meeting was? Because you don’t mention a date in your affidavit?
Mr MacDonald: I would have – I would have assumed it was within the first 10 days. In that space. It was prior to the 26th.
343 Mr Tracey then put to Mr MacDonald that Mr Roohizadegan had given evidence that the first time they had met had been on 27 April 2016. Mr MacDonald replied that he did not believe it to be possible that Mr Roohizadegan’s evidence was correct (T973, lines 17-20).
344 Obtaining the appropriate concession to the contrary was stubbornly resisted by Mr MacDonald, but ultimately achieved:
Mr Tracey: Can you please look at court book volume 10, Mr MacDonald. Can you go to page 5656 – I’m sorry, 5657, Mr MacDonald.
His Honour: Five-six …
Mr Tracey: Five-seven, your Honour.
Mr MacDonald: 5657? Yes.
Mr Tracey: Yes. And I’m just going to see if this might refresh your memory?
Mr MacDonald: Yes.
Mr Tracey: If you could look at an email on that date from Behnam to yourself; do you see that?
Mr MacDonald: Yes.
Mr Tracey: And he refers to the dinner being organised with Melbourne University?
Mr MacDonald: Yes.
Mr Tracey: And, as I understand it, this is a topic you mentioned in your affidavit as well? Yes.
Mr Tracey: Now, if you then look at the email above that, which begins on page 5656, you have an email on 25 April in that chain – same chain of emails where Behnam writes to Adrian?
Mr MacDonald: Yes.
Mr Tracey: Do you see that? And then he – he begins with:
Hi Adrian, I am awfully sorry I have to escalate to you
Do you see that?
Mr MacDonald: Yes.
Mr Tracey: And this is something you refer to in paragraph 36 of your affidavit?
Mr MacDonald: Yes.
Mr Tracey: You say you became aware Behnam escalated the situation to Adrian, is your evidence in your affidavit?
Mr MacDonald: Yes. Yes.
Mr Tracey: And that’s this escalation; is that right? Because you say:
I became aware that Behnam escalated the situation to Adrian, as Adrian sent to me and Edward Chung a copy of Behnam’s email dated 25 April 2016 at 11.49 pm.
Mr MacDonald: Yes.
Mr Tracey: And this is that email?
Mr MacDonald: Yes.
Mr Tracey: And then if you turn the page to page 5657, the very top of the page, Behnam says:
Even though Stuart and I have not met yet –
Mr Tracey: Do you see that?
Mr MacDonald: Yes.
Mr Tracey: Do you agree with me, having read that, that as at that point you had not yet met Behnam?
Mr MacDonald: As at the 25th, yes.
Mr Tracey: Yes. So when you decided that he was not – that you wanted to get rid of him, if I can put it in those terms, you hadn’t even met him at that point, had you, Mr MacDonald?
Mr MacDonald: I’m trying to remember.
Mr Tracey: I see you’re checking your affidavit, Mr MacDonald. It’s pretty clear, isn’t it, that you had never met him at the point you formed the view that he had to go?
Mr MacDonald: Just to clarify, I’m looking at the email you asked me to look at, so I’m just reading the email, so …
Mr Tracey: Okay. You’re looking at the email. Sorry.
His Honour: There’s another reference at the middle of – the third paragraph of the email below. The direct email from Mr Roohizadegan.
Mr Tracey: Perhaps just to assist you further, Mr MacDonald, I have found another email, 5657. If you go to that, please. Are you at 5657?
Mr MacDonald: Sorry, I’m still finishing that.
Mr Tracey: So if you could go to this. This is just again to refresh your memory?
Mr MacDonald: Yes.
Mr Tracey: An email sent from Behnam to yourself on 25 April 9.15 pm – in the third line – third paragraph, sorry:
Even though we have not met yet in your two weeks at Technology One, etcetera.
Now you’re satisfied, surely, on the basis of that email that you hadn’t yet met as at 25 April; is that right?
Mr MacDonald: Could you point me to that again?
Mr Tracey: 5657?
Mr MacDonald: Yes.
Mr Tracey: An email from Behnam to yourself?
Mr MacDonald: Yes.
Mr Tracey: 25 April 2016 at 9.15 pm?
Mr MacDonald: Yes. Fourth paragraph.
His Honour: Third paragraph? Yes.
Mr Tracey: Third paragraph …?
Mr MacDonald: Yes, yes.
Mr Tracey: … excluding the greeting:
Even though we have not yet met yet in your two weeks at Technology One –
Mr MacDonald: Yes.
Mr Tracey: Surely you can be satisfied on the basis of that email that you hadn’t met Behnam as of 25 April 2016?
Mr MacDonald: Face to face.
Mr Tracey: Face to face; is that right?
Mr MacDonald: Yes.
Mr Tracey: Yes. So the first meeting – it’s correct, isn’t it, was on 27 April in the morning?
Mr MacDonald: I am not confident of the date. Definitely in the morning. I am not confident of the date.
Mr Tracey: It must have been after the 25th, though, mustn’t it, of April?
Mr MacDonald: Yes.
345 In cross-examination Mr MacDonald gave the following evidence in respect of what had transpired during a video conference in which he had participated with Mr Roohizadegan, Mr Kelly and Mr Ivancic on 9 May 2016:
Mr Tracey: Yes, thank you, your Honour. And, Mr MacDonald, as I understand it, on 9 May you have a video conference with Behnam and Duncan Kelly and Boris Ivancic. Does that ring a bell?
Mr MacDonald: To clarify, I think it was a video conference of – of computer screens, not face to – you know, not a video conference of faces, as I remember. So it was computer screen sharing.
Mr Tracey: Right?
Mr MacDonald: Just to clarify. But yes, that’s …
Mr Tracey: But the topic was forecasting?
Mr MacDonald: Absolutely. Yes.
Mr Tracey: Yes. You recall that. Now …
His Honour: So it had audio, not …?
Mr MacDonald: Yes, but no video. Sorry. It was sharing screens.
Mr Tracey: And the conference began with Behnam saying to you, “Good news. We have upside on our sales forecasts. We have additional sales which our forecasts would go up when we present”. Do you recall him saying that?
Mr MacDonald: It’s possible, yes.
Mr Tracey: Your response, though, as I understand it, was, “You fucking two, get your forecasts together”?
Mr MacDonald: No.
Mr Tracey: Behnam responded, “I don’t understand. We have an upside to our sales figures that we are going to present. Why are you swearing at us?” That’s what he said to you, isn’t it?
Mr MacDonald: No.
Mr Tracey: Mr Ivancic has described that conversation as one in which you became extremely frustrated and said words to the effect of, “Will you two get your fucking act together and stop fucking around. This is a fucking joke”. You said that, didn’t you?
Mr MacDonald: No.
Mr Tracey: He describes in his evidence your behaviour as a tirade of swearing. That’s what happened, isn’t it?
Mr MacDonald: No.
Mr Tracey: You swore more than once. That’s correct, isn’t it? In this meeting? Yes?
Mr MacDonald: No.
Mr Tracey: You asked that question in this meeting because you’ve sworn on other occasions towards Behnam?
MR MacDonald: Yes. Sorry. No.
346 However, after other contextual matters had been put to him by Mr Tracey, Mr MacDonald finally conceded:
Mr Tracey: So, 9 May you say you don’t – you didn’t swear at all in the forecasting meeting?
Mr MacDonald: I didn’t say that.
Mr Tracey: I’m asking you. Did you swear or did you not swear during the forecasting meeting on 9 May
Mr MacDonald: I did.
347 In cross-examination, Mr MacDonald gave evidence as to the disputed events of 12 May 2016 as follows:
Mr Tracey: Let’s – let’s – let’s look at that day, then. This is the State Manager’s meeting in Brisbane, isn’t it?
Mr MacDonald: Yes.
Mr Tracey: So Behnam is up there as well as yourself at the meeting?
Mr MacDonald: Yes.
Mr Tracey: And Gareth Pye is there, as well?
Mr MacDonald: Yes.
Mr Tracey: And you said to him – you said to Behnam “I want Gareth to be my witness.” That’s right, isn’t it?
Mr MacDonald: Yes.
Mr Tracey: And you then raised your voice and said, “Didn’t I tell you fucking not to negotiate with La Trobe University?” You said words to that effect?
Mr MacDonald: No.
Mr Tracey: You go with me – you were concerned that – that Behnam had been negotiating with that customer?
Mr MacDonald: Can you ask the question again?
Mr Tracey: You were concerned at that time – the 16th – I beg your pardon – 12 May – that Behnam had been negotiating with La Trobe University?
Mr MacDonald: I had been concerned, yes.
Mr Tracey: Yes. And the way you expressed that concern was to raise your voice and say, “Didn’t I tell you fucking not to negotiate with La Trobe University?”
Mr MacDonald: No.
Mr Tracey: And you said “You never told me not to go” – I beg your pardon – Behnam said, “You never told me not to go and negotiate with La Trobe. I have not agreed or given any discount.” That’s what he said, isn’t it?
Mr MacDonald: That’s what he said?
Mr Tracey: Yes?
Mr MacDonald: That’s what he said.
Mr Tracey: He said. And he said – this is also what he said. He said, “I actually approached you and I said Peter Nikoletatos wants to talk with us at 2 o’clock and you just told me to ‘screw you’ and you left.” That’s what he said to you?
Mr MacDonald: No.
Mr Tracey: And that’s because earlier in the meeting you had said the words to him, “Screw you, Behnam.”?
Mr MacDonald: No.
Mr Tracey: And Behnam said to you, “It’s because of you” – it’s – Mr Pye is there as well. He said, “It’s because of you – by going and seeing them” – that’s La Trobe – “on 6 May” – the week before. “That’s why we are in this position.” That’s what Behnam said?
Mr MacDonald: That’s what Behnam said.
Mr Tracey: Yes. And then you said, “Fuck you, Behnam. You don’t get it. You don’t understand.” Is that correct?
Mr MacDonald: No.
Mr Tracey: And then you started reading Behnam’s email to you which referred to Peter Nikoletatos wanting $7 million and bringing it down to $1 million?
Mr MacDonald: Yes.
Mr Tracey: So you had the email there with you in the meeting?
Mr MacDonald: Yes.
Mr Tracey: And you said “this” – you said “That’s negotiation.” Is that right?
Mr MacDonald: Yes.
Mr Tracey: And he – Behnam said, “It’s not. I’ve said it very clearly. I don’t have authority to – to get discounts, etcetera. And you never told me to – not to negotiate.” Is that right? Is that what Behnam said?
Mr MacDonald: No.
Mr Tracey: And you said, “Why did you send that email to Adrian?”?
Mr MacDonald: No.
Mr Tracey: And then Behnam’s evidence is that he said to you, “This is the biggest deal that we’ve ever done” – the company has ever done – “for $23 million and Adrian wanted to be across it. Adrian has said to me during the last few weeks that he wants the deal closed. So Adrian needs to be across it.” Behnam said that to you, didn’t he?
Mr MacDonald: Can you ask the question again?
Mr Tracey: Yes. These are Behnam’s words to you?
Mr MacDonald: Yes.
Mr Tracey: To this … ? In his … effect? … affidavit? [Possible transcription error].
Mr MacDonald: Sorry?
Mr Tracey: In his affidavit? In his evidence to the court?
Mr MacDonald: Yes.
Mr Tracey: He says, “This is the biggest deal that we’ve ever done – $23 million. And Adrian wanted to be across it. Adrian has said to me during the last few weeks and including, at that time, ‘I want the deal closed’. So Adrian needs to be across it.” So I’m suggesting to you that’s what Behnam said?
Mr MacDonald: Yes. Yes.
Mr Tracey: He did. And then in response you said, “You don’t get it. Fuck you Behnam. You don’t get it. You don’t get it.”?
Mr MacDonald: No.
Mr Tracey: And then he said to you, “Perhaps it’s because English is not my first language. Perhaps I didn’t put it correctly in my email that way.” Did he say that?
Mr MacDonald: No.
Mr Tracey: And he said, “You cannot scream, swear at me.”?
Mr MacDonald: No.
Mr Tracey: And you said, “I can.”?
Mr MacDonald: No.
Mr Tracey: And you said, “I can fucking do whatever I like. I can fucking do whatever I like to you – to you. And you can’t do any fucking thing about it.”?
Mr MacDonald: No.
Mr Tracey: That’s what you said. And Mr Pye then said, “You can’t say that and do that.” – in reference to you?
Mr MacDonald: No.
Mr Tracey: You kept saying to him, “You’ve given a million dollar discount. Can’t you see that? It’s in your email? Can’t you see that?” They were your words?
Mr MacDonald: Yes.
Mr Tracey: And Behnam said, “No. I have not.”?
Mr MacDonald: Yes.
Mr Tracey: And he said, “Can we ask Paul James to come and speak to you and Mr Pye?”?
Mr MacDonald: I don’t recall that.
Mr Tracey: Well, the reason he asked that was because Paul James had been Behnam’s witness to his discussion with Mr Nikoletatos. Does that ring a bell?
Mr MacDonald: It’s not relevant to the issue but no, it doesn’t.
Mr Tracey: You – he says that in response to him asking for Paul James to come to the meeting you said “no, no, no”. And you, again, said, “Fuck you, Behnam.”?
Mr MacDonald: No.
Mr Tracey: He said to you, “No-one ever, including my parents, have spoken to me in that sort of language and if you don’t have any respect for me at least have some respect on my white hair.” That’s what he said, isn’t it?
Mr MacDonald: No.
Mr Tracey: He said:
Don’t you ever talk to me with that sort of language again.
And then he walked out?
Mr MacDonald: No.
348 Mr MacDonald denied that the prospect of licence fees declining in Victoria was a contrived reason for Mr Roohizadegan’s dismissal. However, taken to an email Ms Gibbons had sent him he gave the following evidence:
Mr Tracey: She says:
Hi Stuart, as discussed, please find attached the breakdown of profit, including licence fees, consulting, etcetera, for each region.
Mr MacDonald: Yes.
Mr Tracey: And then attached to that you see various spreadsheets, including the one on page 5562 of the court book?
Mr MacDonald: Yes.
Mr Tracey: Which deals with Victoria and, in particular, Benham?
Mr MacDonald: Yes.
Mr Tracey: Yes. So for that financial year the forecasts was that Behnam would receive – his region would receive about 13 and a half million in licence fees?
Mr MacDonald Forecast, yes.
Mr Tracey: Yes. That’s what I put to you, the – that’s what the forecast was. And then the forecast for the following financial year was about 15.5 million?
Mr MacDonald: Forecast, yes.
Mr Tracey: Yes. And the forecast, as I’m putting to you, was for 17, nearly 18 million, for financial year ’18 …?
Mr Macdonald: Forecast
Mr Tracey: … in licence fees?
Mr MacDonald: Yes.
Mr Tracey: Yes. So the forecast was that licence fees would grow over the next few financial years. That’s correct, isn’t it?
Mr MacDonald: That was the intent.
Mr Tracey: Well, that’s the forecast, as you keep repeating, isn’t it?
Mr MacDonald: That was the intent. Yes.
His Honour: Well …?
Mr MacDonald: Yes … sorry …? Yes. [Possible transcription error]
His Honour: This is an email which provides to you, as I apprehend it and it has been put to you, as a breakdown of profit licence fees and consulting for each region. Those are TechnologyOne figures?
Mr MacDonald: That was the – that was the budget.
His Honour: It is the company’s forecast?
Mr MacDonald: Correct.
His Honour: It is being put to you on that basis?
Mr MacDonald: Yes.
His Honour: And so the company’s forecast that you had after receiving this document was that Mr Roohizadegan would earn in Victoria increased licence fees in the three financial years?
Mr MacDonald: If achieved, yes. Yes, sir.
Mr Tracey: And you had that – you had seen that email and that forecast – those forecasts on or about 21 April 2016 when you received that email? Yes.
Mr Tracey: And so that was your understanding of the forecasts when you went into the meeting on 26 April; is that correct?
Mr MacDonald: Which meeting are you referring to, sorry?
Mr Tracey: The meeting with the executive team at which Behnam’s termination was discussed, so you say?
Mr MacDonald: Yes.
Mr Tracey: So it simply wasn’t accurate to base a decision to terminate Behnam on lack of growth in licence fees, was it?
Mr MacDonald: So there was two negatives. Can you rephrase it, please?
Mr Tracey: … It wasn’t accurate …? It wasn’t accurate? It … [possible transcription error] as you suggested, to justify Behnam’s termination by the failure of licence fees to grow?
Mr MacDonald: It – it wasn’t accurate? It was accurate.
Mr Tracey: Well, the forecast shows licence fees going up and up, doesn’t it?
Mr MacDonald: That’s a forecast intent.
Mr Tracey: Yes. Well, it’s a forecast based on company data that suggests what the forecast for licence fees will be?
Mr MacDonald: No. It’s a budget intent. That’s what we needed it to do. It doesn’t mean that’s what it would do. The data behind it wasn’t there to support it. That’s what we needed it to get to.
Mr Tracey: Mr Di Marco’s evidence was that TechnologyOne’s forecasts are very accurate. Do you agree with that?
Mr MacDonald: At a macro level, yes.
His Honour: And constantly adjusted?
Mr MacDonald: Sorry, sir?
His Honour: And constantly adjusted was …?
Mr MacDonald: Yes.
His Honour: … Mr Di Marco’s …?
Mr MacDonald: Yes.
Mr Tracey: So the – do you agree with me, Mr MacDonald, that there was no adjustment to those forecasts between 21 April and 26 April?
Mr MacDonald: Yes.
Mr Tracey: And there was no adjustments to those forecasts between 21 April and 18 May 2016?
Mr MacDonald: I would say there was. Of the – of the state managers, which was on the 12th-ish of May, we would have adjusted the forecasts, I suspect.
Mr Tracey: Do you know what the figures were?
Mr MacDonald: I do not.
Mr Tracey: Do you agree with me that there’s a very large deal that’s about to occur for La Trobe?
Mr MacDonald: Yes.
Mr Tracey: That’s at this point?
Mr MacDonald: Yes.
Mr Tracey: And that would have assisted in achieving the forecast for financial year 2016 had it been closed in that year?
Mr MacDonald: Assisted, yes.
Mr Tracey: Yes. And you agree that the La Trobe deal was almost closed in – as at that time, April 2016?
Mr MacDonald: Yes.
349 It was put to Mr MacDonald that his evidence that Mr Di Marco had been the sole decision maker in respect of Mr Roohizadegan’s termination contradicted the evidence he had given in his affidavit, which provided as follows:
Following an email from Rebecca Gibbons, the HR business partner, about the complaints made by the Victorian team about Behnam, the executive management team, being Adrian, Edward Chung, Kathy Carr, Martin Harwood and me, met in the Brisbane office on Monday, 26 April 2016 and decided that Behnam would be transitioned out of the Victorian state manager’s role imminently.
350 He denied that his evidence that Mr Di Marco alone had made that decision was a recent invention. In re-examination he said of his affidavit, “I didn’t realise I needed to be that specific. Each of the executives gave their position, but Adrian makes the final call. Adrian is the decision-maker” (T995, lines 17-19).
351 As to the credit of Mr MacDonald, the Applicant submits that:
7.41 Mr McDonald was not a satisfactory witness. He gave evidence that was inconsistent with the evidence in his affidavit. He sought to say, for the first time in the witness box, that only Adrian Di Marco was “authorised” to terminate the Applicant’s employment, when he had previously deposed to the decision to terminate being a collective decision of the executive team.
7.42 This revealed that Mr McDonald’s agenda of towing [sic] the First Respondent’s “company line” that Mr Di Marco was the sole decision-maker took precedence over the truth.
7.43 Mr McDonald also wrongly maintained in the witness box that he met the Applicant in person before making his alleged assessment on 26 April 2016 that the Applicant had to be terminated. In fact, it became clear (from Mr Harwood and the Applicant’s evidence) that Mr McDonald first met the Applicant on 27 April 2016. Mr McDonald’s assertion that he could not work with the Applicant, at the point that was only a fortnight into his new employment, was weak and it undermines his credibility.
7.44. Mr McDonald is not a credible or reliable witness, and the Court should give his evidence little weight. Where his evidence conflicts with that of the Applicant, the Applicant’s evidence should be preferred.
352 The Respondents submit as follows:
(b) Mr MacDonald’s evidence is restricted to the short time frame he had involvement with the Applicant, from April-May 2016. He did review the progress of the Victorian region.
(i) He made concessions about mistakes in his memory regarding when he first met the Applicant, which shows that he wanted his evidence to be accurate.
(ii) His evidence regarding his review of the revenue forecast and growth and Technology One is reliable and credible.
(iii) Mr MacDonald admits to having a heated conversation with the Applicant and he admits he was counselled about this.
353 Mr MacDonald commenced his employment with TechnologyOne at a fraught time. Given that he continues to be employed in a very senior role and has been promoted by that company, I would not discount that in other circumstances he may well be a more competent and honourable person than is reflected in my total rejection of his credit in these proceedings. Whatever might be the case in those regards however, I accept Mr Tracey’s submission that Mr MacDonald was not a credible or reliable witness and that where his evidence conflicts with that of the Applicant, the Applicant’s evidence should be preferred.
354 I do not accept Mr MacDonald’s evidence as to what he did and when he did it.
355 In his affidavit, Mr MacDonald states that soon after he commenced employment with TechnologyOne he asked Mr Roohizadegan to explain why the Victorian market had not grown. He criticises Mr Roohizadegan for attributing the issue to others and not taking personal responsibility. The following sentence appears immediately afterwards (Ex R56, CB436 ):
I observed from my interactions with Benham that he was overly controlling of the Victorian sales team.
356 Although avoiding dates - which might provoke scepticism - the inference invited thereby is that Mr MacDonald had travelled to Melbourne soon after he commenced his employment. Otherwise, he could not have “observed” those interactions.
357 What was left to inference in Mr MacDonald’s affidavit was explicitly asserted by Mr MacDonald in his oral evidence, after Dr Spry had asked him about his reaction to the email Ms Gibbons had sent to him regarding staff concerns. That email was sent on 25 April 2016 (Ex R58, CB5595).
358 Mr MacDonald’s response to Dr Spry was that his reaction had been that the email was in line with his expectations. He gave evidence that he had spent some time in the Victorian region. He had met with all the sales people prior to his having received Ms Gibbons’ email. He had spent some time with Mr Roohizadegan and had seen the way that he related to issues. His own observations therefore “validated” what Ms Gibbons had reported.
359 In cross-examination, Mr MacDonald continued to maintain that he had visited Melbourne and observed those things prior to his learning of the contents of Ms Gibbon’s email. He gave evidence that he “would have assumed it [his visit] was within the first 10 days [of his employment at TechnologyOne]. In that space. It was prior to the 26th”.
360 He denied it was possible that he had met Mr Roohizadegan for the first time on 27 April 2016.
361 It was only after Mr Tracey methodically cut off all of his possible escape options in cross-examination that Mr MacDonald finally conceded that he had neither visited Victoria nor met Mr Roohizadegan or any members of his sales team until after the meeting of the Executive Team on 26 April 2016 had taken place. His first visit had thus occurred not before but after the time when, on his evidence, Mr Di Marco had made a decision to dismiss Mr Roohizadegan which he had taken responsibility for implementing. He had then been accompanied by Mr Harwood. Whatever the ultimate end point of the period of transition between Mr MacDonald and Mr Harwood’s employment (which need not be conclusively determined), I am satisfied that at that time they were still in their overlap period.
362 In those circumstances, I reject Dr Spry’s submission that I should conclude Mr MacDonald was a credible witness because he made concessions about mistakes in his memory regarding when he first met the Applicant “which shows that he wanted his evidence to be accurate”.
363 In my view, the position is entirely to the contrary: Mr MacDonald continued to insist on the truth of propositions contrary to facts as he must have known them to be until no other option remained save to make a graceless concession.
364 That evidence was not in respect of a peripheral matter. The circumstance ultimately exposed was entirely inconsistent with Mr MacDonald having based his conclusion that Mr Roohizadegan should be dismissed from his employment with TechnologyOne (reached, on his evidence, prior to 26 April 2016) on his personal assessment of the circumstances in the Victorian region.
365 A further difficulty with Mr MacDonald’s evidence concerns his denial in cross-examination that he swore at Mr Roohizadegan and Mr Ivancic during their videoconference on 9 May 2016. Mr Tracey put to him that his response to that question had accepted that he had done so on other occasions. Mr MacDonald also denied that proposition (T980, lines 20-25).
366 However, after further resisting that any counselling he had been given by Mr Di Marco in respect of the 9 May conversation had gone beyond Mr Di Marco urging him not to “telegraph our punches” (T982, lines 40-41) and “to slow down” (T982, line 46) Mr MacDonald ultimately conceded “I did swear once which is in my affidavit and the counselling was related to that event” (T983, lines 34-35). His belated concession was inevitable. Paragraph  of his affidavit was as follows:
On 9 May 2016 I had a discussion with Benham and Boris about their sales forecast and I was getting frustrated that they hadn’t done what they were supposed to do. I said in frustration to them, “can you guys get your fucking act together?” …
367 Dr Spry submits that Mr MacDonald’s admission to having a heated conversation with the Applicant and his admission that he was counselled about this is to his credit. I reject that submission. The concession was obtained only after all other possibilities were foreclosed.
368 If Dr Spry’s submission that Mr MacDonald admitted that he had had a heated conversation with the Applicant and had been counselled in that respect is to be understood as extending to the events of 12 May 2016, I also reject that submission. There is no reference to counselling in the relevant part of the transcript beyond that which relates to the events of 9 May 2016 (T983, lines 30-45).
369 Dr Spry did not lead any evidence-in-chief from Mr MacDonald as to his account of what Mr MacDonald said or did during his confrontation with Mr Roohizadegan on 12 May 2016. Mr Tracey however, properly, put his client’s instructions. There is nothing in that exchange (see above at ) that can be taken to be an acknowledgement by Mr MacDonald that their conversation was heated. He simply denied all of the specific instances of verbal abuse and swearing put to him.
370 Given that it is not in dispute that Mr Di Marco responded to Mr Roohizadegan’s sixth pleaded instance of alleged bullying by advising him, inter-alia, that “such conduct is unacceptable” (Ex A30) and later informed him that Mr MacDonald had been counselled (Ex A24), I have no hesitation in concluding that Mr MacDonald’s evidence in those regards cannot be accepted.
371 I also note that at paragraph  of his affidavit Mr MacDonald deposed that:
… My decision to meet with the Melbourne University Representative without Benham had nothing to do with any complaint Behnam made or any threat by Benham to bring legal proceedings against TechnologyOne. I only became aware of these issues when preparing this affidavit in the course of these proceedings.
372 However, in cross-examination Mr MacDonald admitted that he had read Ms Gibbons’ email to Ms Carr in which those issues were raised (T963, lines 7-18). He accepted that that was before the Executive Team had met. He nonetheless continued to deny that Mr Roohizadegan’s bullying allegations had been raised at the relevant meeting of the Executive Team on 26 April 2016. However, he ultimately conceded it was possible that those allegations were discussed (T964, lines 43-46). He then sought to suggest that what he had said at paragraph  regarding Mr Roohizadegan having threatened to bring legal proceedings having nothing to do with his conduct was not an attempt to defend TechnologyOne against Mr Roohizadegan’s claims (T966, line 27-T968, line 14). I did not find his tortured explanations in those regards to be plausible.
373 It is unfortunately necessary for the Court to record its finding that Mr MacDonald could not be accepted to be a witness of the truth. I am satisfied that Mr MacDonald 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. More specifically, in respect of the disputed events of 12 May 2016 I am satisfied that I should prefer Mr Roohizadegan’s evidence as supported by contemporaneous notes to that which Mr MacDonald gave.
374 In short summary I am satisfied that the evidence establishes that within the first two weeks of his employment Mr MacDonald enthusiastically lent himself to a strategy to dismiss a person he had never met, on the basis of circumstances about which he had no personal knowledge.
375 I am further satisfied that once he had lent himself to that project Mr MacDonald behaved in a boorish and abusive way towards Mr Roohizadegan on a number of occasions notwithstanding knowing the latter was under a threat of dismissal: without there being any plausible justification for his doing so.
376 Given that the Court’s task in an adverse action proceeding is to make findings regarding the actual reasons of the decision maker (or decision makers), there are limits to the relevance of much of the other evidence in these proceedings. That is because if TechnologyOne and Mr Di Marco persuade the Court that the relevant decision maker or decision makers proceeded on an honest – if mistaken – view as to the matters Mr Di Marco contends to have been his reasons (and by adoption the reasons of TechnologyOne), that would be the end of the matter. The presumption provided for by s 361 of the Fair Work Act would have no work to do.
377 Thus it is not of great account in these proceedings whether any of the complaints Ms Gibbons detailed in her email to Ms Carr and Mr Di Marco were accurately conveyed, or to the extent they were accurately conveyed whether they themselves accurately identified the objective truth of the position in Victoria. Rather, what the Court is required to focus on is the actual mental processes of the relevant individual or individuals who made the decision to dismiss Mr Roohizadegan: Barclay at  (Heydon J); BHP Coal at  (French CJ and Kiefel J),  (Gageler J).
378 The same must be so with respect to Mr Di Marco’s other asserted reasons for his decision: namely Mr Roohizadegan’s alleged incapacity to get along with his three most recent managers, and his alleged failure to grow the business by increasing licence fees. What is ultimately determinative is not the objective truth of those propositions, but whether the decision maker or decision makers honestly believed them to be true: and proceeded to terminate Mr Roohizadegan for those reasons.
379 The Respondents carry the burden of proof. Let it be assumed however that the Court is satisfied that Mr Di Marco was the relevant decision maker as I have, for the reasons I give later, accepted. In those circumstances, if it concludes on the balance of probabilities that Mr Di Marco genuinely believed each of those circumstances was the true position and took the adverse action decision he did (dismissing Mr Roohizadegan) for those reasons without any of the complaints that Mr Roohizadegan made being a substantial or operative factor in that regard, the Respondents must succeed in that aspect of these proceedings.
380 By way of illustration, Mr Di Marco gave evidence that his reasons for deciding to terminate Mr Roohizadegan included that TechnologyOne’s licence fees in Victoria were at risk of going down in the 2016 financial year. In cross-examination, he conceded that that was because “I was told there was, so - and I will have to look it up” (T585, line 6). He later accepted that “in the end it was based on what I was told” (T585, lines 16-18). To make such a consequential decision on such a frail basis might seem unfair. If however the Court accepts that Mr Di Marco proceeded honestly on that premise, Mr Roohizadegan cannot succeed by adducing evidence that objectively establishes that that premise was factually unsound.
381 Likewise, if the Court accepts Mr Di Marco’s evidence regarding his belief in the truth of the complaints Ms Gibbons put before him that is the end of things in that regard: notwithstanding he may have resisted an investigation of those complaints as would have allowed him to make a finding not wholly dependent on hearsay.
382 Of course, that does not mean that what a decision maker asserts as his or her reasons must be accepted. The Court is required to make findings as to the decision maker’s actual reasons. What those reasons are is to be determined from all of the facts established in the proceeding and inferences properly drawn from them. If the inferences to be drawn from those facts are that Mr Di Marco knew that the actual position was to the contrary, or that he had no sound basis to believe what he had been told, then what he claims to have been his actual reasons must be evaluated in that light.
383 That path of analysis however entitles me to confine my subsequent reasoning as to the evidence given by the other witnesses in this proceeding to the extent that the evidence they gave may, contextually, throw light on Mr Di Marco’s actual reason or reasons for dismissing Mr Roohizadegan.
384 Mr Kinkade gave evidence by affidavit (Ex A1, CB347-348). He deposed that between approximately December 2006 and January 2017 he had been Group Chief Executive Officer of Epworth Health Care. In that role, he had regularly dealt with Mr Roohizadegan. In his professional opinion Mr Roohizadegan had been a good representative of his employer, TechnologyOne. In negotiations Mr Roohizadegan was polite, sincere and a good listener. He had also provided a lot of charitable support to Epworth. Mr Kinkade had been particularly impressed by his customer service and support in implementing software. As a result, his company had agreed to act as a reference for prospective customers of TechnologyOne.
385 Mr Kinkade was not cross-examined as to his affidavit. I accept his evidence.
386 Mr Mandie gave evidence by affidavit (Ex A2, CB205-206) that he was employed by the Australian-Israel Chamber of Commerce (AICC) as Chief Executive Officer and had been so employed since 1999. He had been involved with Mr Roohizadegan from 2002, prior to the latter commencing work with TechnologyOne. Mr Roohizadegan had signed TechnologyOne up as a sponsor of the AICC. Mr Roohizadegan attended most functions arranged by the AICC to which he was invited.
387 Mr Mandie gave prophylactic evidence against foreshadowed testimony not later pressed by the Respondents (see discussion at T76, line 26-T79, line 30). His evidence was that it would have been totally out of character for Mr Roohizadegan to have made references to “Jewish Greed”, or indeed to have made any racist remark. His evidence was that Mr Roohizadegan was of the Baha’i faith and that he had expressed interest in visiting a garden in Israel set aside for the Baha’i. He described Mr Roohizadegan as a warm and friendly person.
388 Mr Mandie was cross-examined by Dr Spry as to the detail of his interactions with Mr Roohizadegan. He confirmed that he had attended the official opening of TechnologyOne’s Victorian offices, and would often meet Mr Roohizadegan there before going out for coffee. He confirmed that Mr Roohizadegan had told him that he had left his previous employer as there had been issues regarding certain compensation.
389 Mr Mandie was a credible and compelling witness. I accept his evidence.
390 Mr Ivancic’s evidence (Ex A5, CB222-236) is that between February 2016 and 23 January 2017 he was employed by TechnologyOne, initially as Regional Sales Manager before being appointed in a caretaker role as Regional Manager for Victoria after Mr Roohizadegan had been dismissed. His evidence was that he is currently employed by Quest Software as Vice President and General Manager Asia Pacific and Japan.
391 He initially had been interviewed for a more senior position within TechnologyOne which he had not obtained. On 11 November 2015, he had received a call from Mr Harwood in which the latter advised as follows:
10. Graham then organised for me to have a telephone call with Martin Harwood on 11 November 2015. In this call Martin asked me if I would be interested in the Sales Manager role in Victoria. I also recall that Martin specifically mentioned Benham, and said words to the effect:
“ we’re looking for other things for Benham in the company, because he’s been there quite a while and we need to utilise his skills in a different way. We’re [TechnologyOne] looking for other things for Benham to do, maybe nationally, we don’t know right now”
“you should prepare to come on board in this lower role of Sales Manager, but eventually there could be the opportunity to take on another role in Victoria.”
392 He had reluctantly accepted that less senior position as a stepping stone into the area of enterprise applications – in which TechnologyOne works – after being offered six months’ guaranteed commission (for which he had not asked) and following an interview with Mr Roohizadegan that had gone well.
393 In cross-examination Mr Ivancic was unshaken in his evidence that Mr MacDonald had repeatedly sworn during his conversation of 9 May 2016 with him and Mr Roohizadegan. That was the conversation in which they advised Mr MacDonald of Victoria’s updated sales projections. He had been shocked. He had not been spoken to like that in his 35 years of experience. His evidence was that in any of the other companies for which he had worked, “if any manager had used language like that they would have been terminated immediately, especially to a subordinate, let alone a peer” (T105, lines 5-9).
394 Mr Ivancic also gave extensive evidence both in chief and in cross-examination of his opinion of Mr Roohizadegan’s style of management. The evidence he gave was broadly to the effect that he had considered Mr Roohizadegan to have been a proud traditional manager, excellent with customers, but that in his opinion Mr Roohizadegan had been too much of a micro-manager in respect of his sales team. Thus in cross-examination he accepted that some of Mr Roohizadegan’s conduct may have been viewed by his staff as demeaning and belittling (T135, lines 7-20):
Dr Spry: Now, you did observe Mr Roohizadegan saying to his sales staff that wherever they go – whenever they go to a meeting they must make sure they’ve got enough money for a coffee?
Mr Ivancic: Correct.
Dr Spry: They should take a pen and paper with them; correct?
Mr Ivancic: Correct.
Dr Spry: Now, these are adults he is speaking to …?
Mr Ivancic: Correct.
Dr Spry: … who’ve been employed by TechOne for some time; correct?
Mr Ivancic: Correct. Yes.
Dr Spry: Now, I would suggest to you that that would be demeaning behaviour of one’s team, to talk to them in such a manner; correct?
Mr Ivancic: Correct. It could be. Yes.
Dr Spry: It’s belittling; correct?
Mr Ivancic: Correct.
395 That seemingly adverse testimony was put in some context by his subsequent response (T135, lines 36-40:
Dr Spry: You felt his behaviour to be patronising; correct? That is, in telling his sales representatives that they should take notepads and pens on sales calls?
Mr Ivancic: Yes. That’s correct, and unfortunately I had to display the same patronising behaviour later on after Behnam left because people were going to sales calls ill-prepared, so I guess I was just as patronising later on.
396 It is unnecessary to set out Mr Ivancic’s evidence as to Mr Roohizadegan’s management style in full. For the reasons I have given, except insofar as his views (or purported views) were communicated to Mr Di Marco by way of Ms Gibbons’ email I do not regard such evidence as relevant to the matters I am called on to decide. For the same reason, I need not resolve the conflict between what Mr Ivancic states he said or did not say about Mr Roohizadegan’s staff micro-management in a (disputed) unsigned draft statement prepared by TechnologyOne’s solicitor after an interview in the Brisbane office about a month after Mr Roohizadegan had left and before he left its employ (T56, lines 5-32; T61, line 39-T62, line 12).
397 There is nothing in any of the evidence, documentary or otherwise, before me to suggest that - beyond what Ms Gibbons reported - Mr Ivancic’s views regarding Mr Roohizadegan’s management style were ever communicated to or came to the knowledge of Mr Di Marco. Similarly, whatever Mr Ivancic later said or did not say to Mr Chung (a subject of extensive cross-examination) happened only after he had been told that Mr Roohizadegan was being terminated and that he was to be offered that vacant position in a caretaker capacity. Whatever he may have thought or said at that point of time can have no bearing on what were the decision maker’s actual reasons for that decision. I will however address later whether I should, as Dr Spry submits I ought, conclude that the inconsistencies alleged reflect adversely on Mr Ivancic’s credit.
398 To enable the reader to follow the evidence which Mr Ivancic gave in cross-examination regarding Ms Gibbons’ email, I note that that email contains the following report of her discussions with Mr Ivancic:
I spoke to Boris and asked him how he was settling into the role and he confirmed everything I had been told. He felt he was not allowed to operate as a capable manager, he did feel regularly undermined and he felt that the team operated in a controlled culture of fear. I asked him what this meant for him and his future with Tech One, he also felt that the company accepted this behaviour so he was unsure. My perception is that he is a very real flight risk if nothing is resolved in the office. A point to note is that the team all spoke very highly of Boris as a leader and from a sales engagement perspective, they just felt he was not allowed to operate at his potential.
399 Mr Ivancic’s evidence as to what had transpired was entirely different (T130, line 16-T132, line 22):
Dr Spry: Now, you spoke to Ms Rebecca Gibbons from human resources. She came down to visit the Melbourne office in April of 2016?
Mr Ivancic: Yes.
Dr Spry: And she told you that she had spoken to the sales team. Correct?
Mr Ivancic: Correct.
Dr Spry: She gave you an overview of what the team members were saying. Correct?
Mr Ivancic: Not correct.
Dr Spry: And when she finished speaking, you said, “That’s how it is”. Correct?
Mr Ivancic: Not correct.
Dr spry: There was no conversation to the effect of, “The mood in the office is really flat”, by you? “The mood in the office is really flat and people feel under a lot of pressure. I see a lot of divisiveness that I can’t work out where it’s coming from”. And then Ms Gibbons did not say, “Well, what about Behnam? Is he the cause of all this”.
His Honour: Sorry. That question’s too long and impossible to answer.
Dr Spry: Yes. There was no conversation to the effect of – when you spoke with Ms Gibbons you did not say to her, “Look, the mood in the office is really flat and people feel under pressure. I see a lot of divisiveness that I can’t work out where it’s coming from”. You didn’t say that, did you?
Mr Ivancic: That sounds vaguely familiar as something I said, yes.
Dr Spry: Okay. And she did not say to you, “What about Behnam? He’s the cause of this”. She didn’t say that to you, did she?
Mr Ivancic: She intimated that is – well, she pretty much said, “Is it Behnam?”
Dr Spry: Well, pretty much. She didn’t say it, did she?
Mr Ivancic: I can’t remember the exact words, but it was pretty clear that she was sheeting blame on Behnam for the office mood.
Dr Spry: And you did not say to her, “Rebecca, if you feel you’ve got a problem with Behnam and his management style, don’t come to me to try and fix it”. You didn’t say that, did you?
Mr Ivancic: I did. I was getting very frustrated by that point in time in the discussions.
Dr Spry: And you did not say, “I’ve only been here for a couple of months, and if you say that it’s as bad as it is, as it has been for a long time, why haven’t you done anything about it”. You didn’t say that, did you?
Mr Ivancic: I did.
His Honour: Sorry. You did?
Mr Ivancic: I did.
His Honour: Thank you.
Dr Spry And you did not say to Ms Gibbons, “I don’t really want to get engaged in leading conversations about Behnam”. You didn’t say that, did you?
Mr Ivancic: Sorry. I did.
Dr Spry: And you did not say, “I can tell you that the mood is flat for a lot of reasons in the office”. You didn’t say that?
Mr Ivancic: I did.
Dr Spry: When you told Ms Gibbons that Mr Roohizadegan constantly calls you into his office, and then you had this occasion where you say the frequency of the calls into the office – and what you say, the next time, you would expect a treat – that’s what you say happened?
Mr Ivancic: Yes.
Dr Spry: I suggest to you that you said you would expect a dog chew?
Mr Ivancic: No.
Dr Spry: That you would expect a treat. And when you said that to Ms Gibbons, assuming that you – using your words, that you would expect a treat, that was one of the examples that you gave of how Mr Roohizadegan belittled his staff; correct?
Mr Ivancic: No, that’s not correct.
Dr Spry: He was treating you like a child; correct?
Mr Ivancic: No. That’s not correct.
Dr Spry: And you didn’t say those words in jest [spelling corrected from transcript], did you?
Mr Ivancic: I did.
Dr Spry: Because you wouldn’t repeat that. If that was something said in gest on a particular day, you would hardly go and tell Ms Gibbons, “I said that in jest [spelling corrected from transcript]”, would you?
Mr Ivancic: It was in a broader conversation, talking about how I find working with Behnam.
Dr Spry: That broader conversation of how you find working with Behnam, and by that, you mean that he expected you to be at his beck and call; correct?
Mr Ivancic: No. No. It was a description of how fast-paced the office is, how on top of the business, that he’s constantly talking about deals, wanting me to come in and talk about deals’ progress, strategy – pretty fast-paced, and it was unique. I hadn’t worked in that environment before. So it was worth calling out.
Dr Spry: It was worth calling out?
Mr Ivancic: Yes.
Dr Spry: I suggest to you that you had simply made that up?
Mr Ivancic: That’s not correct.
Dr Spry: Well, I suggest to you that the reason that you’re making this evidence up is because you feel disgruntled at not getting the appointment of the regional state manager’s job; correct?
Mr Ivancic: That’s not correct at all.
Dr Spry: But it’s not laughable, though, is it?
Mr Ivancic: It is laughable. The role I have now, which is a role that I started negotiating for about the middle of – well, yes, September last year is managing the business. It’s bigger than TechnologyOne. Why would I be disgruntled about …
Dr Spry: And you only started, as I understand it, looking for that role once someone else had been appointed to the regional state manager’s role. As I recall your evidence, this other person was appointed around September, and that’s when you started looking for a different job?
Mr Ivancic: Yes. And that was when I was still on a promise from Stuart for a bigger role in TechnologyOne. And at that point, I made my decision: I don’t want to work for Stuart.
Dr Spry: Could I suggest to you that Stuart said that you weren’t ready to step into the shoes of the regional state manager’s job?
Mr Ivancic: They are not the words he used to me.
400 Mr Ivancic also gave evidence to the effect that he would not have confirmed certain of the things Ms Gibbons asserted in the email that he had told her. Ms Gibbons had reported that Shane (Cagney) was in tears as he had been regularly threatened with his job. She reported that she had spoken to Mr Ivancic who had confirmed that he “was really feeling the pressure and would not be surprised if he went on stress leave”. The inference conveyed was that that was a result of Mr Roohizadegan’s conduct.
401 However, Mr Ivancic’s evidence (which I do not understand was ultimately disputed) was that Mr Cagney was struggling in his role and was “probably the poorest performing sales representative in the office”. Mr Ivancic himself had put him on a performance improvement plan, which was a formal process to monitor his activities work and output (T111, lines 7-17).
402 Mr Ivancic gave the following evidence in cross-examination as to what he conveyed to Ms Gibbons regarding the morale at TechnologyOne (T130, line 37-T131, line 4):
Dr Spry: There was no conversation to the effect of – when you spoke with Ms Gibbons you did not say to her, “Look, the mood in the office is really flat and people feel under pressure. I see a lot of divisiveness that I can’t work out where it’s coming from”. You didn’t say that, did you?
Mr Ivancic: That sounds vaguely familiar as something I said, yes.
Dr Spry: Okay. And she did not say to you, “What about Behnam? He’s the cause of this”. She didn’t say that to you, did she?
Mr Ivancic: She intimated that is – well, she pretty much said, “Is it Behnam?”
Dr Spry: Well, pretty much. She didn’t say it, did she?
Mr Ivancic: I can’t remember the exact words, but it was pretty clear that she was sheeting blame on Behnam for the office mood.
Dr Spry: And you did not say to her, “Rebecca, if you feel you’ve got a problem with Behnam and his management style, don’t come to me to try and fix it”. You didn’t say that, did you?
Mr Ivancic: I did. I was getting very frustrated by that point in time in the discussions.
403 He then gave the following evidence in re-examination (T139, lines 4-13):
Mr Tracey: That’s okay. It was also put to you by Dr Spry that your view on 17 May was still that the problems in the Victorian office were attributable to Behnam. As I recall, your answer to that question was, “That’s not correct.” Is that right?
Mr Ivancic: That’s right, yes.
Mr Tracey: Are you able to say to the court what you say the problems were attributable to?
Mr Ivancic: The problems were centred around aggressive sales targets, poor product quality, the pressure to deliver projects in timeframes that weren’t realistic, the inability to deliver new products when they were promised to the customer. So there were – and a lot of disgruntled customers complaining to us.
404 On Mr Roohizadegan’s behalf, Mr Tracey submits that:
7.3. Mr Ivancic was a credible witness who made concessions against both his own and Mr Roohizadegan’s interests. For example, Mr Ivancic admitted that he observed Mr Roohizadegan to have had a style of management that he would describe as “micromanagement”, but that he ultimately found this style of management to be warranted (T96.32-42).
7.4. The Court should not accept the Respondents’ attempts to undermine Mr Ivancic’s credibility for the following reasons:
(a) The affidavit from Leo Whiteley does no more than establish that a version of a draft witness statement, prepared by an unknown person, was sent by Mr Whitely to Mr Ivancic who then made comments and changes, but Mr Ivancic takes issue that that is the final statement he viewed or amended;
(b) The Respondents asserted that Mr Ivancic was a disgruntled employee and was not being truthful in his evidence because he was not appointed to the role of Regional State Manager (T132.5-7). The Court should not accept this baseless assertion, as it is the case that Mr Ivancic is now employed by an organisation that is larger than that of the First Respondent (T132.9-12).
(c) The Respondents asserted that Mr Ivancic was making up his evidence as he went along (T132.20). The Court should not accept this assertion in circumstances where Mr Ivancic was forthcoming and responsive to each question put to him. Mr Ivancic did not give evidence that was inconsistent with his witness statement (T139.32-36); T140.1-11).
(d) Mr Ivancic presented as a confident witness who was cautious about ensuring he told the truth, which he plainly did.
405 On behalf of the Respondents, Dr Spry submits that:
Mr Boris Ivancic is not a creditable or reliable witness and where his evidence differs from that of Mr Chung, Ms Gibbons or Mr MacDonald, their evidence should be preferred to that of Mr Ivancic. Mr Ivancic’s refusal to accept that he returned an updated copy of his statement with amendments made by him tells strongly against his honesty and reliability as a witness (CB7548-7533; R67 ,,). Further, Mr Ivancic is clearly a disgruntled ex-employee of Technology One.
406 My general impression, insofar as it is open to rely upon demeanour, was that Mr Ivancic was both a seriously minded man with a strong record in management and a calm and persuasive witness of the truth. He remained unshaken after cross-examination. I accept Mr Tracey’s submission that Mr Ivancic made concessions against both his own and Mr Roohizadegan’s interests. That was as Mr Tracey submitted exemplified by Mr Ivancic conceding that Mr Roohizadegan had a style of management that he would describe as “micro-management”, while acknowledging that ultimately he himself had found this style of management necessary to adopt.
407 A similar instance of Mr Ivancic being prepared to make an appropriate concession arose during cross-examination about a contemporaneous note made by Mr Chung of a conversation that they had had when he had been informed that he was to take over Mr Roohizadegan’s position in a temporary capacity. Mr Ivancic frankly conceded that during that conversation:
I took opportunity to blow my own trumpet; I won’t deny that. I said, “I think that I can do a few things differently that might make the branch operate a little more harmoniously or resolve some of the issues we have with skills and the way we approach the market” (T108).
408 I acknowledge that in cross-examination Dr Spry put to Mr Ivancic that he had made prior inconsistent statements in a document that had been drafted after he had been interviewed by a solicitor, in the course of TechnologyOne’s preparations to respond to the legal action which Mr Roohizadegan commenced against the company. Dr Spry put to Mr Ivancic that he had received that draft statement from the company, had made only minor changes to it and had emailed it back to the sender. The relevant emails were tendered as Ex R1 (CB7548-7553). I accept that if it is open to conclude that Mr Ivancic adopted that statement as the truth, it does contain some prior inconsistent statements.
409 In cross-examination however, Mr Ivancic stoutly maintained that the statement included within the emails tendered as Ex R1 was not his document. He maintained that he had made more “substantial” revisions to the draft statement, which he had sent back to the company in a final version that was altered more significantly. Mr Ivancic’s evidence was that there had been significant errors in the document. He said:
I wouldn’t have put in incorrect names or let incorrect names go through a document. I wouldn’t have referred to discussions with Amit [Sion] when I hadn’t had them (T126).
410 Notwithstanding Mr Ivancic’s robust riposte, contemporaneous documentary evidence clearly supports Dr Spry’s contention that Mr Ivancic did send back the copy of the statement that had been prepared by TechnologyOne’s solicitor with a cover note annotation “please find my updated copy attached”. That document was then in the form that Dr Spry put to him: not one with more extensive revisions. I have no basis to reject Mr Whiteley’s subsequent evidence that no further version was received by TechnologyOne. I am satisfied on the basis of the documentary record that Mr Ivancic therefore must have been either mistaken or untruthful when he asserted that he had returned a document that had been more extensively revised.
411 However, the document Mr Ivancic returned remained in draft. It was never signed. I find it to be implausible that Mr Ivancic would have ultimately sworn to the truth of a statement in that form had it continued to contain the disputed content to which he referred in his evidence.
412 I have earlier noted that an entirely honest witness may come to believe that relevant events must have been as they give their evidence, when in fact they were not. In my view, that is the explanation in this instance. Mr Ivancic knew he needed to make further revisions to his draft statement before adopting it and, with the passage of time, came to believe that he had already communicated the substantial revisions required.
413 In assessing the credit of Mr Ivancic, I decline to place any significant weight on what were asserted to be prior inconsistent statements in the draft he had returned with only limited changes then flagged.
414 Although Mr Ivancic’s evidence in respect of the form of that documents cannot be accepted, I am satisfied that that was a consequence of false recall rather than deceit. More specifically, I am satisfied he neither thereby had adopted nor would he have deposed to the truth of that document in that form.
415 Dr Spry also contends that Mr Ivancic was a “disgruntled ex-employee of TechnologyOne”, and as such was not a witness of credit. I do not find that suggestion persuasive in light of how cross-examination with respect to that issue unfolded.
416 Mr Ivancic temporarily filled the role of Regional State Manager left vacant by Mr Roohizadegan after his termination. He frankly admitted during cross-examination that he had an “expectation” that he would be permanently appointed to that role, and was disappointed when that circumstance did not eventuate.
417 However, when it was put directly to Mr Ivancic that he was being dishonest with the Court because felt “disgruntled at not getting the appointment of the Regional State Manager’s job”, he denied that and said:
It is laughable. The role I have now, which is role that I started negotiating for about the middle of – well, yes, September last year  is managing the business. It’s bigger than TechnologyOne. Why would I be disgruntled about [that]? (T132)
418 Both Mr Ivancic’s acceptance of his initial disappointment and his denial of dishonesty had the ring of truth. Both were consistent with his making frank and appropriate concessions whilst remaining unshaken in his account. I reject the Respondents’ suggestion that I should proceed on the basis that Mr Ivancic gave false or unreliable evidence out of revenge for not having been permanently appointed as Regional State Manager.
419 In summary, I accept Mr Ivancic to have given truthful evidence, albeit clearly mistakenly so in one instance.
420 Ms Hamson’s evidence was given largely by affidavit (Ex A40, CB243-246). She had been initially interviewed for a position with TechnologyOne by Mr Ivancic (whom she had known from working with him previously), and had commenced employment with the company on 11 July 2016 in the position of Account Director.
421 Ms Hamson accepted that in her discussions with Mr MacDonald she had made her employment conditional upon Mr Ivancic being her manager. That was nothing to do with her opinion of Mr Roohizadegan, who she did not know. It was because she was interested in the job only by reason of her high regard for Mr Ivancic. Her evidence was that in commencing employment with TechnologyOne she had taken a pay cut of at least $20,000.00 because she had really wanted to seize the opportunity to work with Mr Ivancic again.
422 She resigned from TechnologyOne some eight months later. She now works for Quest Software as Enterprise Sales Director.
423 Ms Hamson denies having said anything adverse about Mr Roohizadegan, and in particular anything to the effect that Mr Roohizadegan was known to be exceedingly difficult to work with, to Mr MacDonald. Cross-examined, Ms Hamson was unshaken in that evidence.
424 Ms Hamson’s evidence is to be understood as prophylactic against the prospect that Mr MacDonald - who later also interviewed her prior to her appointment - might be anticipated to give evidence that she had indicated to him that she would decline the position if she had to work with Mr Roohizadegan, and that she had told Mr MacDonald that Mr Roohizadegan was known in the Victorian market as being exceedingly difficult to work with.
425 I am satisfied that Ms Hamson was a credible witness. I infer that Quest Software, the company for which she now works, is the company where Mr Ivancic is now employed as Vice President and General Manager Asia Pacific and Japan. I infer that Ms Hamson followed Mr Ivancic to that company. I accept that the only reason Mr Hamson told Mr MacDonald she would not be willing to take the position that had been offered to her if Mr Roohizadegan was going to be her manager was that her sole interest in the role, and the reason why she was prepared to make a financial sacrifice of some significance to accept it, was that the position would enable her to work professionally with Mr Ivancic again.
426 Mr Price gave evidence-in-chief by affidavit Ex (A41, CB280-286). His evidence was that he had been employed by the Catholic Education Office as its IT Vendor Manager from May/June 2013 to May/June 2016. Over a period of some three months starting from August 2016, he had negotiated a contract with Mr Roohizadegan. He had found Mr Roohizadegan to have been a tough negotiator but fair and credible. He recalled Mr Roohizadegan having stated on more than one occasion words to the effect that:
we’re [TechnologyOne] not looking for a transactional relationship, we’re looking for a long-term strategic partnership. Where we find that mutual ground cannot be accommodated, we would rather walk away than to be in a bad relationship.
427 Mr Roohizadegan thereafter was central to holding the deal they had achieved together. Mr Price’s evidence was that over the three years he had dealt with TechnologyOne before Mr Chung was appointed, the company had gone through at least four project managers who had reported to Brisbane rather than Mr Roohizadegan. They all had made service commitments that were never delivered.
428 His evidence was that whenever such issues arose, “Benham was the glue that continued to call everyone back to the table and say words to the effect, ‘no, no, no, This is what we agreed, and this is how we should be approaching it’”.
429 Mr Price was cross-examined only as to one passage in his affidavit: in respect of an instance he recalled that had occurred in 2013 when Mr Jane, the Catholic Education Office’s Principal Consultant, had questioned Mr Roohizadegan’s and TechnologyOne’s integrity in respect of outstanding items on a deal regarding TechnologyOne’s Limited Solutions Agreement. Mr Roohizadegan had been deeply offended at what was said.
430 Mr Price gave evidence that Mr Jane had later accepted that he should apologise. Mr Price’s evidence was that he recalled thinking that Mr Roohizadegan’s reaction in terminating the meeting had been entirely justified. That was the only time there had been a heated discussion.
431 Cross examination was effectively limited to Dr Spry putting to Mr Price certain things Mr Jane may have said at that time. Mr Price accepted that Mr Jane had asked Mr Roohizadegan “Are you playing games with me?”. Dr Spry also put to Mr Price that Mr Jane had said “Fuck Benham. Just to be clear, I don’t agree” during that heated moment. Mr Price’s response was that the word “fuck” was not used by Mr Jane.
432 Mr Price’s cross-examination occasions no reason to doubt his credit. I accept Mr Price to have been a witness of the truth.
433 Mr Luczek gave evidence-in-chief by affidavit, having made one immaterial amendment (Ex A42, CB208-210). His evidence is that he was employed by the Mitchell Shire Council between November 2010 and August 2014. He was promoted to Manager of Information Services in January 2012. The council was already a client of TechnologyOne. It engaged that company to provide:
(a) Payroll & Human Resources Module;
(b) CI Property & Rating Module;
(c) Finance Module; and
(d) Customer Service Module.
434 He relevantly gave the following evidence:
Dealings with Behnam Roohizadegan
8. In or around late 2011 or early 2012, about the time I was promoted to Manager of Information Services, Council had an issue with one of the Technology One Modules, and the Account Manager at TechnologyOne, Mr Phillip Pantano (Phillip), Account Manager, was not responsive dealing [sic] with the issue that I had raised, that is, he was slow.
9. As there was no progress with the Account Manager, I decided to contact the next level up (in terms of seniority). That person was Mr Benham Roohizadegan (Benham).
10. Behnam and I developed a relationship where each time I needed to email TechnologyOne about an issue with our systems, I would always copy in Benham.
11. Behnam was fantastic in that each time I raised an issue, he was very responsive, and was on the phone straight away. That is, he would call me back within a day. I really admired that about Benham, particularly given he was a busy man, and at a very senior level.
12. I recall occasions where I would email the Account Manager, copying Benham, about an issue Council was having, and would receive a call from Benham’s executive assistant, informing me that Behnam was in a meeting, but that he had received my email and would call me back as soon as possible.
13. When Benham was able to return my email about an issue I had raised, he would call and say to me words to the effect of, “okay, I was unaware of that, I will address it and I’ll get to it.” I would then usually hear from the Account Manager shortly after, and the issue was resolved.
17. When negotiating costs and prices, Benham was always available and always tried to help. Behnam would regularly say to me words to the effect, “this is a partnership. We want to work together.” This gave me the impression that Benham was different, in so [sic] that he really wanted to help Council.
18. Council’s budgets are extremely tight, with little movement, therefore I needed to spend the funds wisely to get the best value and service. Behnam understood this. In contrast, I had to deal with a lot of other systems providers, who did not understand this.
19. Although I do not recall the exact date, I recall negotiating with TechnologyOne about costings for extra licences, or something similar. Behnam and Philip both visited Council’s office to discuss.
20. During this negotiation, I found Behnam to be polite, sincere, genuine and respectful. This goes for all my communications with Benham, both via email and face to face.
21. I recall an occasion where Benham invited me to a TechnologyOne User Group meeting at their Melbourne office, where he also provided lunch. Again, Behnam was very polite, sincere, genuine and respectful.
22. I have never heard or observed Benham to be rude, disrespectful or abrupt in any way.
435 Mr Luczek was cross-examined by Dr Spry, but there is nothing in that exchange that is material to note. His cross-examination concerned whether Mr Luczek had alerted Mr Roohizadegan to complaints the council had had about their payroll system. His evidence in cross-examination was to the effect that because Mr Roohizadegan had not been involved in that product, he had not done so. Dr Spry did not put to Mr Luczek any questions to suggest that any part of his substantive evidence was untruthful or mistaken.
436 I am satisfied Mr Luczek was a witness of the truth and I accept his evidence
437 Mr Dalton gave evidence by way of an affidavit containing agreed redactions (Ex A43, CB 238-240). His evidence was that he had recently retired from his former long term employment with the Casey City Council. When he had joined Casey he had realised that it needed a major update to its IT systems. He had first engaged with TechnologyOne in 2006. He had met Mr Roohizadegan in 2007. He had had dealings with Mr Roohizadegan throughout the bidding phase, contract negotiations and implementation support for the five services (property and rating, electronic content management, finance, capital works and customer service) that TechnologyOne came to provide for Casey. His evidence was that Mr Roohizadegan was always seeking a mutually beneficial outcome:
6. Having worked with Benham throughout the procurement cycle of the five products as listed above, I found Behnam to be a very sincere person, who genuinely wanted to see both his customers happy and the company he worked for succeed.
7. During the negotiation phases, I found Benham to be very respectful and considerate. Behnam always listened and tried to understand Casey’s position and from that, he would come up with different options that would satisfy both Casey and TechnologyOne. He always focused on achieving the best outcome for everyone and I never felt like he was trying to close a deal for the sake of closing it.
8. I do not recall Benham ever raising his voice or being manipulative or rude during my dealings with him.
438 Mr Dalton gave evidence as to Mr Roohizadegan’s commitment to his employer at the time his daughter had fallen ill as follows:
9. I recall very clearly there was one particular occasion in late September 2010, when Casey was finalising the contract with TechnologyOne regarding the property and rating system. I found Benham to be a very dedicated worker.
10. I recall during that time, Benham’s daughter was very ill and had to be rushed to hospital. However, Behnam was desperately keen to close the deal with Casey on behalf of TechnologyOne.
11. I was extremely surprised that despite his daughter’s very ill health at the time, Benham still made a trip out to my office in order to ensure the contract documents were signed. On top of that he also had to bring along two of his other children with him because his wife was at the hospital with his daughter.
12. Benham was very apologetic for having to bring his children with him, however he had no choice but to do so because of his daughter’s critical condition. I recall Benham was extremely concerned and worried about his daughter and spent quite some time at my office talking about his daughter’s situation.
13. At the same time, I knew there was an urgency for Behnam to close the deal with Casey, and he was quite deliberate about wanting to get that result. Behnam was very open and honest about his intentions at the time. He mentioned that Adrian Di Marco wanted the contract signed off before the end of September 2010 so the contract value could be booked for the financial period. I had the impression that it was quite a big deal for him and TechnologyOne to have this contract signed at the time.
439 Mr Dalton was not cross-examined. I proceed on the basis that I am entitled to accept his evidence.
440 Mr Thomson gave evidence that he had been employed as Operating Officer Sales and Marketing with TechnologyOne from January 2014 to October 2014. At that time the company was planning to become a much bigger corporation with a global scale. Because of his experience working with multinational software companies, he had been tasked with using that experience to increase the performance of the existing workforce and grow the organisation rapidly. His responsibility was to drive sales and marketing for TechnologyOne. He had reported directly to Mr Di Marco, with whom he had regular dealings.
441 His evidence was that he had thought there was not a cultural fit between him and TechnologyOne, and in the event his employment had been terminated in October 2014. He had been replaced by Mr Harwood.
442 He had met Mr Roohizadegan when he first started in the role of Operating Officer Sales and Marketing. He gave evidence as to what he understood of the then relationship between Mr Roohizadegan and Mr Di Marco as follows:
Mr Tracey: And then I will ask you also about your understanding of the relationship between Mr Di Marco and Mr Roohizadegan; how would you describe that?
Mr Thompson: … Adrian had a lot of respect for Behnam’s contribution to the business. He was responsible for the Victoria operation and represented a large share of the revenue contribution to TechnologyOne.
443 Mr Thompson had been responsible for evaluating Mr Roohizadegan’s performance. He gave the following evidence as to his assessment of Mr Roohizadegan’s performance, and of their working relationship as it evolved over that time:
Mr Tracey: Mr Thompson, the – I’m going to take you to another document now. This is at volume 15 of the court book, and I will just ask you to turn to the very end of that volume – or almost the very end – and to page 9636. Are you able to describe to the court what that document is?
Mr Thompson: Yes. It’s a – it’s a methodology that TechnologyOne uses to rate the performance of sales personnel, and it’s really predicated on performance against quota.
Mr Tracey: And, as I – I asked you a moment ago about your role in assessing performance of those in your – those of your direct reports, including Mr Roohizadegan. Are you able to say what rating you gave him by reference to this?
Mr Thompson: Yes. As a – as a bi-product of performance he would have been rated an A.
His Honour: He would have or was?
Mr Thompson: He was.
His Honour: And that is to be understood – what A means – by reference to the table at page 9363? [Being “Consistently exceeds performance expectations to achieve exceptional results: Ex A14].
Mr Thompson: That’s correct. Yes.
Mr Tracey: Your Honour, I won’t tender that because it’s already in evidence, that table. Are you aware, Mr Thompson, when you would have given that rating to Mr Roohizadegan?
Mr Thompson: I can’t give you a specific date.
His Honour: It doesn’t assist by looking at any of the …
Mr Tracey: Are you aware of how often ratings were given at TechnologyOne?
Mr Thompson: Every six months is my understanding.
His Honour: It would have to be in 2014 obviously.
Mr Tracey: In 2014 when Mr Thompson is there.
His Honour: So towards the end or at the beginning of your time or twice?
Mr Thompson: I would imagine I would have done it twice. One would be predicated – as I said it’s on results, and I know that Behnam had some excellent results in the preceding year, and during my tenure he also had excellent results.
Mr Tracey: And, Mr Thompson, are you able to describe your working relationship with Mr Roohizadegan when you were employed at TechnologyOne?
Mr Thompson: Yes. I would say when I first joined, Behnam and I were probably at odds. There were moments where I was giving him feedback and sometimes that was not well received. And I would say that that changed – certainly the first three months was contentious. I would say the next three months was far more even, and I would say the last three months very collaborative and respectful.
Mr Tracey: What would you say about your ability to work with him in your respective roles?
Mr Thompson: Sorry, could you repeat the question?
Mr Tracey: What would you say about your ability to work with him in your respective roles?
Mr Thompson: I think at the outset I found him challenging, but I do think during the course of our working relationship, we developed a mutual respect, and I would say within the last three months we could work well together because he was prepared to take coaching and input and advice.
Mr Tracey: You’re aware that subsequent to your time at TechnologyOne Mr Roohizadegan’s employment was terminated?
Mr Thompson: Yes, I am aware.
Mr Tracey: If it were to be said that a reason for that termination was his inability to work well with you, what would you say to that?
Mr Thompson: I would disagree with that. I think he and I did work well together in the later stages of my tenure.
444 In cross-examination, Mr Thompson accepted that Mr Roohizadegan had challenged the achievability of what is described as the “stretch target” for additional sales over budget as Mr Thompson had proposed. Mr Roohizadegan had done so on the basis that he had a non-performing sales team. Mr Thompson explained what a stretch target was as follows:
Dr Spry: Now, I thought your evidence a little while ago was that that target was not imposed by you that was something that the individual manager put forward as their proposed target. So which one is it?
Mr Thompson: So – so the naming convention – one is a forecast, one is a target.
Dr Spry: Yes?
Mr Thompson: The forecast remains unchanged. So the forecast is the forecast which the individual owns.
Dr Spry: Yes?
Mr Thompson: The target is an annual number set for the year, and then the stretch target is “I think you can do more”.
Dr Spry: Yes?
Mr Thompson: “Why don’t we shoot for the 2.5 million?” There is no consequence on negativity associated with not hitting the stretch target. The forecast does not change. It is an aspirational number to achieve. So the forecast was not changed at all.
445 Mr Thomson agreed that some of Mr Roohizadegan’s sales team had been non-performing. Mr Roohizadegan had agreed to be mentored by him on developing his management skills. He had agreed to cut Mr Roohizadegan some slack and to enable him to hire more people and develop both those new individuals and his existing hires (T466, lines 7-12; T468, lines 9-11).
446 Mr Thompson agreed that Mr Roohizadegan had copied his email challenging the achievability of Mr Thompson’s “stretch target” to Mr Chung and Mr Di Marco, but denied that he had shaped his later conduct towards Mr Roohizadegan as a result of his wishing to avoid issues with Mr Di Marco. The relevant evidence is as follows:
Dr Spry: Now, I understand, Mr Thompson, that you don’t have that before you, but the email from Mr Roohizadegan was sent to you, CCd to Mr Chung and Mr Di Marco. Now, I want to ask you this: it was a common occurrence, was it not, for Mr Roohizadegan in responding to you – sorry, I withdraw that. When you first commenced employment with TechnologyOne – and I understand your evidence to be for the first three months you found Mr Roohizadegan to be a challenging person to work with?
Mr Thompson: That’s correct.
Dr Spry: And he was your – he was reporting to you?
Mr Thompson: Correct.
Dr Spry: And when you found him challenging, what do you mean by that?
Mr Thompson: I would say that he was set in his ways. Very – wanted to control things, and he wasn’t necessarily receptive to feedback.
Dr Spry: And did he see you as someone who was interfering in his running of the Victorian state region?
Mr Thompson: Potentially at the outset I could imagine he would think that.
Dr Spry: Now, it was a common occurrence that he would, throughout your tenure, when he would emailed you about issues on which you disagreed – for him to copy in at least Mr Di Marco; correct?
Mr Thompson: Yes, that’s correct.
Dr Spry: And you would agree during your tenure at TechnologyOne that he was close to Mr Di Marco?
Mr Thompson: Yes.
Dr Spry: And you would agree that if he had any issues with you he would escalate those issues to Mr Di Marco?
Mr Thompson: Yes.
Dr Spry: And in your later tenure at TechnologyOne you would agree that the way you managed Mr Roohizadegan was to try and first seek the support of Mr Di Marco; correct?
Mr Thompson: I don’t believe so.
Dr Spry: And you would agree that in your later months at TechnologyOne you tended to let Mr Roohizadegan run his – run the Victorian region much as he wanted to to avoid further issues with Mr Di Marco; correct?
Mr Thompson: No, I would disagree with that.
Dr Spry: Yes. There’s no further cross-examination. Thank you, your Honour.
447 The Applicant submits that:
7.11. The Court should accept Mr Thompson’s evidence as being objective and truthful.
7.12. In giving evidence, it was clear that Mr Thompson had no loyalty to either Mr Roohizadegan or the Respondents. Indeed, Mr Thompson makes concessions that for the first three months of his employment with the First Respondent, his relationship with Mr Roohizadegan was “contentious” (T458 at 22 to 23) and that he found Mr Roohizadegan “challenging” (T458 at 30). Mr Thompson does go on to say that in the last three months of his employment with the First Respondent, his relationship with Mr Roohizadegan was “very collaborative and respectful” (T458 at 23 to 24).
7.13. This evidence supports the proposition that the relationship between the Applicant and Mr McDonald would have improved over time.
448 The Respondents submit that:
The Applicant called Mr Lee Thompson. Mr Thompson confirmed that at least in the early stages of his relationship with the Applicant, the Applicant had difficulty working with Mr Thompson. Mr Thompson’s evidence supports the conclusion drawn by Mr Di Marco that the Applicant had difficulty working with his three (3) managers leading up to the termination of his employment – namely, Mr Thompson, Mr Harwood, and Mr MacDonald.
449 Mr Thompson was an impressive witness. I agree with Mr Tracey that there is no indication that Mr Thompson shaped his evidence to assist Mr Roohizadegan. I do not discount that Mr Thompson might once have harboured some bitterness towards TechnologyOne having regard to his having been dismissed by that company after less than a year. Dr Spry however does not suggest, and nor would I conclude, that his evidence should be discounted for that reason for want of credit.
450 Whilst not directly related to the issue of credit, I should mention that I am unpersuaded by Dr Spry’s submission that Mr Thompson’s evidence supports the conclusion purportedly drawn by Mr Di Marco that the Applicant had difficulty working with his three managers leading up to the termination of his employment: namely Mr Thompson, Mr Harwood, and Mr MacDonald. Mr Thompson’s evidence as to whether Mr Roohizadegan had had such difficulty in respect of their relationship, taken as a whole, was to the contrary.
451 In any event, what is material to the outcome of this proceeding is the mind and reasons of the decision maker. In that regard it is conspicuous that Dr Spry chose not to ask any questions in cross-examination to suggest that Mr Thompson had ever conveyed to Mr Di Marco the views he submitted (in my view implausibly) the Court should find him to have possessed with respect to Mr Roohizadegan’s ability to work with him..
452 Mr David MacDonald gave his evidence-in-chief by way of affidavit (Ex A50, CB199-203).
453 Mr David MacDonald’s evidence was that he had been employed in Melbourne by TechnologyOne from 2005 to July 2011 as its Customer Development Manager and, once Mr Roohizadegan had commenced with the company, had reported directly to him:
17. When Benham commenced as manager, it was a breath of fresh air, as we clicked immediately, and he was very fair in spreading opportunities among the business development team. For example, if a deal or opportunity came up that fell into an employee’s vertical market, Benham would give that deal to them. He did not seem to favour any employee in particular.
454 His evidence as to Mr Roohizadegan’s management style was that he had mentored new staff, and had been sympathetic to those with personal family difficulties. However, he accepted that Mr Roohizadegan was direct in his instructions to employees:
10. Benham could, at times, come across quite direct in conversation, but that was just his style. That is not to say that Benham was not polite, but he was direct in his instructions in his expectations [sic].
11. I do not recall any employees in the Melbourne office clashing with Behnam over something derogatory (that is, something Behnam had said or done that was not nice). More than anything, there were cultural differences between Benham and some employees. For example, employees might not have understood why Benham was approaching something in a certain way, or did not understand why he was communicating something in the way that he was.
23. Benham required the sales team to wear ties. Whilst the sales team complied with this, I recall over hearing comments about Benham being “old school”.
24. Benham did not allow any swearing or vulgar language in the office. He was quite old school and respectful in that regard.
455 Mr David MacDonald gave evidence that he had dreaded travelling to Brisbane because the head office was very “club like” and closed off, as if it were for local employees only.
456 In cross-examination by Dr Spry, Mr David MacDonald accepted that he and Mr Roohizadegan had become friends and that he had remained in contact with him. He accepted that Mr Roohizadegan may have lost a deal for TechnologyOne with City West Water because, at the time of his daughter’s illness, he had been on the phone for much of the time during a business meeting: which had been unusual for him. Mr David MacDonald was not otherwise cross-examined on his affidavit.
457 The Applicant submits that:
7.14. Mr MacDonald gave evidence that was consistent with his witness statement. The Court should accept Mr MacDonald’s evidence as being the truth.
458 The Respondents submit that:
Although Mr David MacDonald ceased employment with Technology One in July 2011, well before the Applicant’s exercise of any workplace rights, he said during cross-examination that he remained in regular contact with the Applicant since then, meeting up with him every six weeks or every couple of months, and that they have become friends (T489). Notwithstanding this, the Applicant chose to lead no evidence from Mr MacDonald as to the Applicant’s health before and after his dismissal. The Court should infer that any evidence from Mr MacDonald on this issue would not have assisted the Applicant, and it is not the role of cross-examination to draw this information from Mr MacDonald.
459 I do not take the Respondents to suggest that I should discount Mr David MacDonald’s credit by reason of his continuing friendship with Mr Roohizadegan. Mr David MacDonald was not cross-examined as to any material aspects of his evidence regarding his assessment of Mr Roohizadegan’s management style with his subordinates. I accept Mr Tracey’s submission that I am entitled to find him to have been a witness of the truth.
460 I accept however Dr Spry’s submission that with the exception of a reference to the immediate circumstance of Mr Roohizadegan’s conduct when his daughter became ill (which I infer related to the stress he was then suffering) Mr David MacDonald did not give any evidence as to Mr Roohizadegan’s health before and after his dismissal. Nonetheless, I do not draw the inference Dr Spry submits I ought to draw in respect of that circumstance. The fact that Mr David MacDonald gave no evidence as to Mr Roohizadegan’s mental anguish prior to his dismissal beyond a single instance when he had learnt of his daughter’s illness is entirely consistent with Mr Roohizadegan having been at pains to not disclose his subsequent circumstances to those with whom he worked. Beyond that, Mr Roohizadegan’s health status after his dismissal is not in dispute: the expert evidence called by both parties, notwithstanding some differences as to its aetiology, is entirely consistent with respect to his condition since that time. The expert medical witnesses are agreed that he suffers from a complete incapacity to work.
461 Mr Di Guilmi gave evidence-in-chief by way of an affidavit (Ex A51, CB288-294).
462 His evidence is that he was employed by TechnologyOne from September 2011 to November 2014 as an Account Manager in sales before leaving for a higher paid position with his current employer. While with TechnologyOne he had reported directly to Mr Roohizadegan “with dotted line reporting to Mr Pantano”.
463 He gave the following evidence of his experience of Mr Roohizadegan’s relationship with him and the TechnologyOne sales team:
7. Benham was a great mentor and I learned a lot from him from a sales perspective. A lot of what I learned I still apply today in my current job. For example, from Benham I learned to be professional 100% of the time by wearing a suit and tie every day. This is something that I still do today, even on casual Fridays.
8. Benham had a strong character and was the ultimate professional who respected the hierarchy of TechnologyOne more than anything else. Behnam was also a firm manager, in that he had standards that he expected his team to comply with. For example:
(a) if someone in the sales team was going to be late to work, Behnam required prior notice; and
(b) if someone did not dress professionally in a suit and tie, Behnam would warn them.
9. I would describe him as an alpha type character, in that he was an intelligent and highly successful man, who commanded respect due to his role as General Manager and leader of the Victorian office. However, at no point in time did I feel that he was offensive or as though he stepped outside the realms of a professional relationship.
11. During the time that I worked with Benham, I did not hear Benham make any racist or sexist remarks to anyone. I, along with other sales team members, attended numerous Australian Israel Chamber of Commerce luncheons held at Crown’s Palladium, and organised by Benham.
464 He further gave evidence of the culture of the Melbourne office:
Culture of Melbourne Office
15. The culture of the Melbourne office was generally quite good. I found most people got along at the Melbourne office and I did not observe any particular issues or unhappiness amongst people who worked there.
16. Friday night drinks were enjoyed each week by anyone who wished to attend. The fridges in the kitchen were stocked with alcoholic beverages every week.
17. I recall that Benham provided coffee and cakes from the café located in the Melbourne office at most sales meetings. I also recall cakes being provided and enjoyed in celebration of a team members birthday.
18. Being in the sales industry, I would say the culture was highly successful and high achieving, which was one that Benham promoted. I really enjoyed being part of a highly driven team. From my perspective, being part of the Victorian region, which was highly successful, was key to myself enjoying my time at TechnologyOne. I was able to learn a lot from many successful individuals at TechnologyOne and that came down to that successful culture driven by Behnam.
19. I did not notice any staff turnover in the Melbourne office that was out of the ordinary for the industry.
465 In brief cross-examination, Mr Di Guilmi denied recalling Mr Roohizadegan saying that certain women who were to be employed would not be a distraction because they were ugly. In re-examination, he clarified that he did not believe Mr Roohizadegan had made those remarks.
466 Dr Spry made no submissions regarding Mr Di Guilmi’s credit. I am satisfied Mr Di Guilmi was a witness of the truth. I accept his evidence as it relates to the period it covers.
467 Mr Pantano gave his evidence-in-chief by affidavit (A52, CB212-220). He was examined by video link. His evidence was that he had been employed in Melbourne by TechnologyOne from December 2010 to November 2013 as Senior Customer Account Manager. He had resigned to take up a substantially higher paying position with his present employer, Oracle Corporation.
468 Mr Pantano gave the following evidence about Mr Roohizadegan’s management style:
Benham’s management style
10. Behnam’s management style was directive, that is, he would say words to the effect of “do X, don’t do Y”. I would accept this for what it was, being some direction to help me do my job better, as his experience of what worked provided short cuts to success for others.
11. I do recall some employees taking offence to Benham’s directions. For example, Simon may have said to me words to the effect, “why is he telling me what to do? I know how to do this.” It was not uncommon for employees in the Melbourne office to voice the view that Benham was micromanaging, controlling, challenging or extremely detailed.
12. I recall having a conversation with Simon [Dugina] and Mathew [Di Guilmi], and potentially others, where I said words to the effect, “Benham, he’s a different style of guy, but he’s well intentioned. Just listen to the intention and don’t get caught up in the words, his success is not an accident.”
13. I recall Benham saying to Simon, and other more junior sales employees, words to the effect, “before you send that email, make sure I see it first” or “I want Philip to read your email before you send it.” I never understood Benham to say this in a demeaning or belittling way, it was just his style. Benham did this with all employees, it was consistent behaviour across the team.
14. However, Benham was very open to receiving assistance, as much as he was to be giving it. For example, Benham would regularly share his emails with me and others, and say to me words to the effect, “run your eye over this, tell me what you think, I’m intending to convey “x” does this email convey that?”
15. I do not recall Behnam ever dictating an email to a sales employee. Behnam may have said words to the effect, “I would say this” or “I would say that” or “it would be better to say this”.
23. I recall an occasion where I made a comment in the open office to Behnam with words to the effect, “that’s when you get paid the big bucks.” Benham took immediate offence to this, and said words to the effect, “I work like a donkey. I work 18 hours a day, I dedicate my life to this place, no one words as hard as I do, I deserve to be successful because of all the sacrifices I have made for TechnologyOne.” Benham’s response gave me an insight into the type of person he is – he took pride in the fact that he work as hard as he did. He was also not aware that my words to him where [sic] a very common phrase and not intended to be an insult, it shaped how I worked with him going forward.
469 His evidence was that the Melbourne office had been a social place to work and that people regularly went out to coffee or lunch together and held regular Friday night drinks albeit without a relaxation of formality:
35. Whenever a weekly sales meeting was held on a Friday, Behnam always provided chips and drinks (soft-drinks), or provided a round of coffees.
36. I recall that Behnam did insist that everyone wear a tie, which was a standard he expected from his employees. Behnam also wore a tie.
37. I recall Mr Peter Sutching (Peter) coming to the Melbourne office in or about 2012, and Behnam saying to him words to the effect, “respectfully, this is my branch/office, I have expectations that everyone wears a tie when they come to work. Can you please wear a tie?” I recall hearing Peter muttering under his breath words to the effect of, “fuck off, what year do you think this is.”
470 His evidence was that notwithstanding the growth and the importance of the other regions to its financial success, TechnologyOne had remained a Brisbane-centric organisation:
44. TechnologyOne was a head office mandated organisation, in that all the key roles were in Brisbane, and there was no opportunity for career growth outside of Brisbane. The organisational structure was very flat.
45. There were also challenges in the way the organisation was set up. TechnologyOne had both product managers and branch (or state) managers. There was conflict between them, as a product manager would want to be actively involved in a deal, but a state manager would want to run the transaction, as it was in their state.
46. A classic example is student management services (SMS), which had its own business unit. The conflict arose because the SMS business unit was actively involved with a customer that may have been in Benham’s region and at times without his knowledge.
471 He instanced (at ) Mr Harwood becoming involved with his customer accounts without telling him, and Mr Roohizadegan having taken issue with that on his behalf. He gave the following evidence as to his understanding of the then relationship between Mr Harwood and Mr Roohizadegan:
55. It was common knowledge that Benham and Martin did not have a great relationship. Whilst their relationship was publicly respectful, it was clear that there was no real respect between the two. At a time when Martin lead the Product and Development team, I recall him saying words to the effect of, “you know what Benham’s like” or “you can’t even take him to a customer”.
472 In brief cross-examination, Mr Pantano accepted that he had viewed TechnologyOne as a good company for which to work and had applied for a position at a higher level within the company which he had not obtained. He rejected that he had been late in attending a meeting with a client that Mr Harwood had facilitated. He conceded that some people (I infer in the Melbourne sales team) had been offended by Mr Roohizadegan’s directive manner.
473 The Respondents do not submit that I should reject Mr Pantano’s evidence for want of credit. I am satisfied both that Mr Pantano was a witness of the truth, and that I am entitled to accept his evidence.
474 Mr Davey gave his evidence-in-chief by affidavit dated 3 October 2019 (Ex A53). He was examined by video link. His evidence is that he had been employed by TechnologyOne from November 2010 to September 2012. He had been responsible for a product called Customer Relationship Management (CRM). He was currently an account manager for Oracle Corporation and based in the United Kingdom
475 The thrust of Mr Davey’s evidence was there was no reason for incentives to be different in respect of CRM and another product which was also marketed by TechnologyOne: Student Management Services (which I have earlier abbreviated to SMS). They were competing products. That was because although SMS was aimed specifically at tertiary education, CRM systems were routinely sold into the same market where the “customer” was identified as students or alumni:
Dr Spry: Now, you were responsible for a product that you described as CRM, Customer Relationship Management; correct?
Mr Davey: That’s …
Dr Spry: And you understand, do you, that Student Management Services, SMS, is a complete system for universities and the tertiary education from the enrolment of students through to the end? Do you understand … ?
Mr Davey: Yes. I – I have a good understanding of SMS. Yes.
Dr Spry: Yes. And customer relationship management, as I understand it – well, correct me if I’m wrong – is about managing clients and the like. When someone comes in and buys something, that’s entered in and receipted and so on; correct?
Mr Davey: That’s – yes. I mean, in its very loose terms, absolutely, and in tertiary education it can mean student relationship management.
His Honour: Sorry. The line here is not absolutely precise. So it could mean …? Sorry. Could mean something. I didn’t hear you?
Mr Davey: Yes. So customer relationship management, it depends what is termed the customer. In tertiary education, you could argue that the – the customer was actually a – a potential student, a – a current student or, indeed, alumni. So that’s where CRM is often sold, and it’s sold as much in the UK, in the States and Australia into universities and academia as – as a different student management system. In fact, Oracle itself, we sell our CRM systems into universities quite widely.
Dr Spry: That’s now – we’re talking about 2010 to 2012. Now, I would suggest to you that at that time, at the very least, the SMS product was a different one to the CRM product; correct?
Mr Davey: Yes, it was a different product, yes.
Dr Spry: Now, you see you give some evidence that in paragraph 21 you don’t see any reason why state managers such as Mr Roohizadegan should not have been incentivised, paid in incentives on the sale of SMS in their region? You don’t see any reason why he should not have been paid incentives on the SMS product?
Mr Davey: Well, he was paid incentives. He was paid incentives on any product that was being sold.
476 Without asserting any direct awareness of Mr Roohizadegan’s individual compensation plan, Mr Davey had understood Mr Roohizadegan to have been incentivised on the same basis for both products: he expected that that would have been the case (T507, lines 1-20).
477 The Respondents submit that I ought to prefer the evidence of Mr Arnott who gave evidence for the Respondents to that of Mr Davey, and reject that CRM and SMS were comparable and competing products. I deal with that question later. However, Dr Spry does not submit that I should reject or place lesser weight on Mr Davey’s evidence for want of credit. I am satisfied that Mr Davey’s evidence was that of a witness of the truth as he understood it to be.
478 Mr Preston gave evidence-in-chief by affidavit (Ex R44, CB410-419). He is currently employed by TechnologyOne as an Associate Application Managed Services consultant. He had earlier worked for five years (from 2011) as a Recruitment Partner. His job had been to enable TechnologyOne to recruit the best talent in the market. He had managed all recruitment for the Sales and Marketing and Research and Development streams in every region for the business.
479 He gave the following evidence as to what that role had involved:
3. My role as Recruitment Partner was inward facing in that the managers were my customers because it was my job to find highly skilled, professional, talented people to fill any vacancies within their teams. My role involved engaging talent to get them excited and interested in TechnologyOne and then ultimately getting them in front of the managers to not only interview but to “sell TechnologyOne” by talking about their experiences, the company, the culture and the role. The messaging that we tried to get all our managers to convey was for the candidates to walk away wanting to work for TechnologyOne, regardless of whether the Manager wanted to hire them or not.
480 His evidence is that as one of his “customers”, Mr Roohizadegan was the subject of adverse feedback. In contrast to Mr Metcalfe, he had been challenging to work with:
8. On a number of occasions, I received feedback from candidates and from agencies giving me feedback from their candidates after interviewing for positions in the Victorian office of TechnologyOne. The feedback was that they loved the opportunity but that they did not want to work under Benham. Some examples of the feedback that I received about Benham included comments to the effect of ‘I just can’t work for that man’; ‘I couldn’t see myself working for him’; ‘you’ll be crazy to work with this guy’. He’s a chauvinistic pig’ [sic] and ‘I’ll work for the business, but I won’t work for the manager there’.
9. I found Benham to be a challenge to deal with because I would spend a lot of time sourcing talented people only to have them lose interest when they met Behnam. On the other hand, Behnam would not want to proceed with some candidates who had years of experience at reputable companies. To my mind, I also felt Benham would not want to proceed with particular candidates if he thought that they would be a threat to him …
10. By way of comparison, I recall that when Richard Metcalfe was in the Victorian region for a short time from April 2015 to March 2016 to temporarily fill the newly created role of Regional Sales Manager until Boris Ivancic was recruited, he would interview candidates to fill some of the vacancies in the region. The feedback from candidates who had been interviewed by Richard was really positive and the exact antithesis of what we would get about Behnam. However, after the candidates went on to meet Behnam and found out that Richard wasn’t going to be there indefinitely, they were no longer interested. Like for example Matthew Bennett whose feedback was ‘Richard was such a different guy to talk to. He’s a great guy. I was disappointed when I found out I wouldn’t be reporting to him. I told the recruiter ‘If Benham is the person I have to directly report to I won’t continue on. That would be disappointing though”).
11. I recruited successfully for all the other regions and there were no issues because they had good managers and I could sell them with confidence because I believed in the managers that we had. Conversely, with the Victorian region, unfortunately I didn’t feel that confidence, not only from the feedback that I had received, but from my dealings with Benham, how he talked to me (and other people in our team). Based on my experience, Benham wouldn’t be a pleasant guy to work for. Having interacted with Benham at functions I found him disingenuous. The other challenge was trying to sell the leadership under Behnam with confidence. When asked the questions what’s the manager like, I stepped around the question so candidates could make up their own impression. I had to recruit in the region regardless of leadership, but it is people’s careers so I would let candidates make up their own minds.
481 He had raised those concerns with Ms Gibbons and Ms Carr.
482 In or around October 2015, Ms Gibbons had asked him to create a spreadsheet of the feedback from potential candidates from the Victorian region (paragraph ). He had done so (Ex R45, KP-6, CB8046). His spreadsheet contained reports of a number of complaints he received during October and November 2015.
483 He had kept the spreadsheet on Google Drive, and shared it with Ms Gibbons and Mr Harwood (paragraph ). He did not produce the spreadsheet to facilitate a “witch hunt”. His assumption had been that it was to be used to provide “referenceable incidents of feedback so they could be addressed to improve the region” (paragraph ).
484 He did not give any “direct feedback” to Mr Roohizadegan. He had been reluctant to do so because on an earlier (unidentified) occasion when he had done so, Mr Roohizadegan had “bitten his head off and reacted defensively” (paragraph ).
485 On 9 November 2015, Mr Harwood asked him for his comments on the difficulties in recruiting in Victoria. He had replied to Mr Harwood’s email (Ex R45, KP-1, CB4500) to the effect that candidates for positions with TechnologyOne did not want to be put forward or apply if they would be working for Mr Roohizadegan (paragraph ).
486 On 10 November 2010, Mr Preston sent an email (Ex R45, KP-8, CB4502) to Mr Harwood. In that email he reported that a candidate had described his interview with Mr Roohizadegan as the worst he had ever had.
487 Mr Preston gave evidence in his affidavit that when Mr Roohizadegan had left, the position with respect to recruitment had improved (paragraph ).
488 In cross-examination, Mr Preston conceded that recruiting for any senior sales role was a challenging proposition throughout the TechnologyOne business nationally (T821, lines 38-40). He accepted that Mr Roohizadegan never told him that he viewed any candidate as a threat.
489 Mr Preston conceded that over the period 2013-15 he had received not only negative feedback but also positive feedback about Mr Roohizadegan. He conceded that he had omitted to mention any of the latter instances in his affidavit. He denied that it thereby conveyed an inaccurate picture (T825, line 13-T826, line 21):
Mr Tracey: You agree with me that in the period 2013 to ’15 you are receiving positive feedback about Behnam, aren’t you?
Mr Preston: We have all kinds of feedback, so – so, yes.
Mr Tracey: Yes. You don’t refer to that in your affidavit, do you?
Mr Preston: We don’t because it wasn’t something we needed to improve. Positive feedback is exactly what we want.
Mr Tracey: No, I’m talking about you. You don’t record that in your affidavit …?
Mr Preston: Yes.
Mr Tracey: … that there has been positive feedback about Behnam, do you?
Mr Preston: I don’t. No.
Mr Tracey: No. And that’s because you are seeking to paint a picture to the court, like you did in the spreadsheet, of a very negative situation with respect to the recruitment by Behnam, aren’t you?
Mr Preston: I don’t agree.
Mr Tracey: Well, surely you must agree with me that it’s completely inaccurate if you are – to paint the picture if you’re receiving positive feedback, and yet you’re not recording it alongside the negative feedback in your affidavit?
Mr Preston: The – the spreadsheet was designed so that we had referenceable feedback from the candidates that gave us negative feedback on Behnam so that we could address is [possible transcription error].
Mr Tracey: I’m not asking you about the spreadsheet at the moment. I’m asking you about your affidavit?
Mr Preston: Okay.
Mr Tracey: This is your affidavit to the court in which you are seeking to present a picture, are you not, of how Behnam was perceived by recruits; is that correct?
Mr Preston: Say that again, sorry.
Mr Tracey: In your affidavit, you are seeking to paint a picture to the court as to how Behnam was received, or perceived, by recruits, aren’t you?
Mr Preston: In my affidavit I’m expressing lots of different things, but – sorry, I don’t – I don’t get your question directly.
Mr Tracey: You’re trying to tell a story in here about how Behnam was perceived by recruits in the Victorian region; aren’t you?
Mr Preston: Some points in my affidavit highlight the feedback that we got from Behnam.
Mr Tracey: From Behnam? Do you mean about Behnam?
Mr Preston: Sorry, about Behnam.
Mr Tracey: Yes. And the feedback that you’re highlighting about Behnam is purely negative, isn’t it?
Mr Preston: What’s in the spreadsheet reflects the times we got negative feedback on him, yes.
Mr Tracey: No, I’m not asking you about – I’m talking about your affidavit. You in your affidavit have only chosen to refer to the negative feedback about Behnam. It’s a simple proposition, Mr Preston. You agree with it?
Mr Preston: Yes, I have highlighted those examples. Yes.
Mr Tracey: Yes. And you’ve deliberately omitted to include positive feedback about Behnam; that’s right, isn’t it?
Mr Preston: I haven’t included it in there.
Mr Tracey: No. And that’s because you want to advocate for the proposition that he was bad from the perspective of all recruits; that’s right, isn’t it?
Mr Preston: Say that again, sorry.
Mr Tracey: You want to advocate that he was bad from the perspective of all recruits, that’s why you’ve only included the negative feedback?
Mr Preston: So in my affidavit the examples I’ve given were for the negative feedback that we got. Positive feedback was expected from all regions.
490 He had no recall of receiving positive feedback about Mr Roohizadegan contained in email addressed to him dated 1 October 2013 (Ex A73).
491 Mr Preston accepted that there had been successful recruitments in the Victorian region in 2015/16 when Mr Roohizadegan was regional manager (T834, lines 22-23). He conceded that the spreadsheet he had prepared at Ms Gibbons’ request had been designed to capture negative feedback (T829, lines 17-18). He understood Ms Gibbons to have requested it on Mr Harwood’s behalf (T831, line 39).
492 He conceded that he knew that Mr Roohizadegan had complained about his conduct in not returning phone calls and emails from external recruiters (T832, lines 30-40).
493 His evidence in cross-examination regarding his describing Mr Roohizadegan as “disingenuous” was as follows (T833, lines 16-33):
Mr Tracey: And you also describe him as disingenuous?
Mr Preston: Yes.
Mr Tracey: And you base that comment which is a pretty serious comment, isn’t it …?
Mr Preston: Yes.
Mr Tracey: … to call someone disingenuous … ?
Mr Preston: Yes.
Mr Tracey: … you base that on having interacted with him at functions; is that your evidence?
Mr Preston: There’s – there’s more context to it than that if you would like me to elaborate.
Mr Tracey: Well, you’ve said in your affidavit:
But having interacted with Behnam at functions I found him disingenuous.
So are we to take it that you formed that view from interaction at functions; is that right?
Mr Preston: It was a magnitude of things. It was – it wasn’t just one isolated case. I didn’t build that in – just from one interaction.
494 The Applicant submits as follows:
7.24. Mr Preston was an unsatisfactory witness who was evasive in his responses to questions put in cross-examination. In particular, Mr Preston would not admit that he reported only negative feedback to Mr Harwood and Ms Gibbons in relation to Mr Roohizadegan, and that he had failed to give a complete and accurate picture by not reporting any positive feedback. It was only after lengthy cross-examination on this point that Mr Preston admitted that he had only reported negative feedback (T824-832).
7.25. In light of the above, the Court should not accept Mr Preston’s evidence and, in any event, give it very little weight. He, like many of the Respondents’ witnesses, had an agenda of seeking paint the Applicant in a negative light. Truth and objectivity came second to that goal.
495 The Respondents make no submissions concerning the credit of Mr Preston.
496 When giving his evidence Mr Preston presented as a highly confident and assertive individual: notwithstanding the concessions he was compelled to make.
497 In re-examination, asked why he did not follow up with Mr Roohizadegan at the end of 2015 regarding the negative feedback Mr Preston gave the following evidence:
There was a scenario where I had presented Behnam with feedback, and the way that he responded to me was really defensive and made me feel very uncomfortable, so I had spoken to my business partner – so we had presented this feedback, and it was all about positive improvement. It’s all – all I want as a recruiter is candidates to come away with a good experience. We’re not going to want to recruit them all. Some of them – they’re not going to be right for the company and they’re not going to have the right skills, but they can still have a good experience from that engagement. So I had presented that to Benham and that we need these people just to come away with a positive experience of Tech One, and it was – the way that it was – he responded to me was – as I said, made me feel uncomfortable. I took it to Rebecca to say, “This is the scenario. This is the response”, and she said, “You don’t have to be made to feel like that”, so she – as the HR person, she said, “You can bring the feedback to me and then we can address it from there” (T839).
498 Mr Preston’s explanation as to why he compiled a spreadsheet behind Mr Roohizadegan’s back at the request of Ms Gibbons and Mr Harwood without informing Mr Roohizadegan of what, on his evidence, had been said by potential recruits about his interviewing style is wholly inconsistent with the self-confidence and assertiveness he displayed when giving his evidence. That discrepancy leads me to be sceptical that Mr Preston did in fact undertake that task, as he gave evidence, assuming it was intended to provide referenceable incidents of feedback so they could be addressed to improve the region: not as part of any ‘”witch hunt” or, to put the matter more neutrally, to provide only adverse information about Mr Roohizadegan to Ms Gibbons and Mr Harwood.
499 His description of Mr Roohizadegan as having been “disingenuous” based on having interacted with Benham at functions was not given any substance by his condescending to particulars: notwithstanding Mr Tracey having opened the door to him taking that opportunity in cross-examination.
500 I accept Mr Tracey’s submission that in both his affidavit and his oral evidence, Mr Preston was seeking to paint the Applicant in a negative light rather than to provide a fair and rounded picture of his interactions with Mr Roohizadegan. It was with the greatest reluctance that Mr Preston accepted that others he had sought to recruit may have said positive things about Mr Roohizadegan.
501 I decline to characterise Mr Preston as other than a witness of the truth. However, it is clear that he disliked Mr Roohizadegan. That was not only demonstrated directly by his description of Mr Roohizadegan as being disingenuous and, in his view, not a pleasant guy with whom to work. It was also demonstrated by his being willing to lend himself to the collection of exclusively negative information about Mr Roohizadegan and sharing it, in that form, by Google Drive with Mr Roohizadegan’s immediate superior: Mr Harwood. I reject that it is credible that he undertook that task on the assumption that the material he was collecting was later to be drawn on to help improve Mr Roohizadegan’s performance.
502 Mr Di Marco (along with TechnologyOne) does not advance the proposition that Mr Roohizadegan’s manner of conducting interviews or recruiting staff was a reason for his termination. For that reason, Mr Preston’s evidence is of limited relevance in these proceedings. To any extent however that it may be thought otherwise, I am satisfied for those reasons that I should place little weight on the views he expresses and the facts he asserts: save when confirmed by contemporaneous evidence.
503 Mr Jarman gave the bulk of his evidence-in-chief by (a partially redacted) affidavit (Ex R48, CB385-390). He is employed as a presales consultant with TechnologyOne. His role in that regard is, inter-alia, to provide demonstrations of software and build solutions for customers. He had been employed by that company for 12 years. From August 2010 until May 2017 he had been a product customer service manager within the Victorian region. He and Mr Roohizadegan had had interacted on a daily basis at work.
504 He gave evidence regarding his opinion of Mr Roohizadegan’s management style:
4. I considered that Behnam displayed narcissistic personality traits and if anyone ever tried to contradict him, he would become very angry. Behnam took the credit for any successes but would shift the blame for any failure onto an individual employee, often a sales account manager.
5. I observed that there was a lot of political navigation that you had to take into account when dealing with Benham. Benham’s management style was very controlling and I often saw him bullying staff, specifically his own sales team.
6. I observed that Benham sought to control his sales team and involve himself in as many decisions as he could. The sales team were treated like children by Behnam in that if they did not follow his instructions, he would become very upset and would chastise them. I consider that many staff members feared these repercussions. Behnam did not reward based on merit, but instead on how far an employee would bend to his will.
505 He had observed Mr Roohizadegan make disparaging and mocking remarks or racist jokes behind employees’ backs (paragraphs  and ).
506 Initially there had been no female sales staff. When Mr Roohizadegan had finally hired two women, he had made the point that “we had nothing to worry about in regards to distraction as these women were ‘ugly’” (paragraph ).
507 He had humiliated one employee by calling out his sales staff individually in order of the worst to best performing member (paragraph ).
508 Customers had complained to him about Mr Roohizadegan:
28. I recall customers would often make negative comments about Behnam. These negative comments would usually be along the lines of not liking Behnam and not wanting to deal to him. These customers would complain that they perceived Behnam as being insincere and disingenuous.
29. It was part of my role as customer service manager to deal with those negative comments. Our approach would normally be to show empathy for the customers’ position and sometimes go as far as suggesting that the customer did not have to deal with Benham directly.
30. I did not raise those concerns about Benham with any of my superiors because I worried that if I elevated the concerns, then Behnam would find out. I feared that there would then be personal consequences and I felt personally vulnerable because I considered that there was a risk that my job was at stake. I observed that Benham was very good at instilling an atmosphere of fear and I considered Benham to be a revengeful person.
509 Mr Jarman’s uncontentious evidence was that there were 80-90 staff of TechnologyOne in the Victorian region and in the order of seven or eight sales staff who had reported to Mr Roohizadegan during 2015 to 2016 growing to around nine to ten towards the end of that period, although he did not know many exactly (T869, line 31-T870, line 24).
510 In cross-examination Mr Jarman conceded that he, Mr Finch and Mr Dugina (other witnesses for the Respondents, whose evidence I address below) had discussed their respective criticisms of Mr Roohizadegan. He denied however, contrary to the evidence given by Mr Dugina, that they had discussed those criticisms at the time of his preparing his affidavit in December 2017.
511 Mr Jarman then conceded that Mr Roohizadegan had both been generous and supportive of the staff in TechnologyOne’s Melbourne office (T865, line 24) and had assisted them if they had experienced personal difficulties (T865, line 42). He accepted he had not mentioned either of those matters in his affidavit.
512 Taken by Mr Tracey to notes of a 2015 focus group that had been conducted under the heading “Benham Roohizadegan” (Ex A16, CB9641) Mr Jarman then gave the following evidence:
Mr Tracey: Now, I will ask you to assume that these are notes taken by human resources in 2015 as part of a focus group, and if you could look, please, under the heading Behnam Roohizadegan, if you can have a read through the six points made under his name, please, and then I will ask you a question?
Mr Jarman; Yes.
Mr Tracey: Do you agree with me that that is a reasonable or accurate description of Behnam as a manager in 2015?
Mr Jarman: Which of these?
Mr Tracey: The whole lot?
Mr Jarman: The whole lot. No.
Mr Tracey: You agree with me that he provided staff with encouragement?
Mr Jarman: Yes.
Mr Tracey: And he got hands on with opportunities?
Mr Jarman: Yes.
Mr Tracey; He was very good in terms of helping with opportunities and closing deals?
Mr Jarman: Yes.
Mr Tracey: Getting his time would be challenging but he was very good?
Mr Jarman: Very good at closing deals.
Mr Tracey: And helping with opportunities?
Mr Jarman: Yes.
Mr Tracey: He was viewed by some people as a mentor?
Mr Jarman: Some, yes.
Mr Tracey: He has taught people the world of sales?
Mr Jarman: Yes.
Mr Tracey: He has helped to grow people’s markets …?
Mr Jarman: Yes.
Mr Tracey: … and to expand deals?
Mr Jarman: Yes.
Mr Tracey: He has given learnings to people?
Mr Jarman: Yes.
Mr Tracey: They have been invaluable for them?
Mr Jarman: Yes.
Mr Tracey: He’s great at his job?
Mr Jarman: Specifically those things you mentioned, yes, in that context, yes.
Mr Tracey: He can [possible transcription error] authoritarian in his management style. This may be a cultural thing?
Mr Jarman: Yes.
Mr Tracey: You just have to work around it. People had immense respect for him?
Mr Jarman: Some.
Mr Tracey: He had an element of control in the way he managed people described as the Kevin Rudd factor?
Mr Jarman: Yes.
Mr Tracey: Skipping the next one because it’s about Richard, he is motivating and supportive. He can also be tough; that’s accurate?
Mr Jarman: Yes.
Mr Tracey: Continuing:
He’s successful, so I can’t not respect that.
That’s true, isn’t it? He was very successful?
Mr Jarman: Yes.
Mr Tracey: And he had a lot of good qualities, didn’t he?
Mr Jarman: Yes.
Mr Tracey: Continuing:
And he tells it how it is, and that’s part and parcel of dealing with him.
Mr Jarman: Yes.
Mr Tracey: Continuing:
Some people get his attention; others don’t.
Mr Jarman: Yes.
Mr Tracey: Continuing:
For some people, he’s been great and very patient with them.
Mr Jarman: I never saw that.
Mr Tracey: Continuing:
Everyone wanted his knowledge and assistance.
Mr Jarman: No.
Mr Tracey: Continuing:
Some people were priorities over others.
Mr Jarman: Yes.
Mr Tracey: And that’s because he managed people differently depending on who they were, didn’t he?
Mr Jarman: Yes.
Mr Tracey: And he did that in order to best assist that person to be their best?
Mr Jarman: No.
Mr Tracey: Now, you’ve agreed with an overwhelmingly number of positive aspects of Behnam’s management, haven’t you?
Mr Jarman; I have agreed with most of it.
Mr Tracey: Most of it. And yet we see nothing of this kind in your affidavit, do we, Mr Jarman?
Mr Jarman: Correct.
Mr Tracey: You would have to agree with me, simply for that reason, wouldn’t you, that the court cannot rely on your affidavit as an accurate and rounded description of Behnam as a manager, can it?
Mr Jarman: That’s not correct.
Mr Tracey: These matters you raise in your affidavit, you didn’t raise them with Behnam, did you?
Mr Jarman: No.
Mr Tracey: That’s the cross-examination, thank you, your Honour.
513 In re-examination, Mr Jarman gave evidence that the reason he had not raised his concerns with Mr Roohizadegan had been because he had feared for his job. Mr Roohizadegan was authoritarian and did not like criticism (T868, lines 26-30).
514 The Applicant submits that:
7.29 Mr Jarman was one of the small handful of Melbourne office staff (a tiny percentage of the 80-90 staff in that office) whom the Respondents called. He gave evidence of his negative perceptions of the Applicant. Mr Jarman’s affidavit reveals him to be wholly concerned with attacking the Applicant’s character. He fails even to say one positive thing about the Applicant. His bias and, moreover, his irrelevance given that he was not a direct report of the Applicant and did not even report his alleged concerns to the First Respondent’s human resources manager, make him a witness whose evidence should be given little to no weight.
515 The Respondents made no submissions as to the credit of Mr Jarman.
516 I was initially puzzled by how the Court should assess Mr Jarman’s credit given the unusual mix in his evidence of frank concessions in cross-examination (to the effect that not only had Mr Roohizadegan had a lot of good qualities but also that there were many positive aspects of his management style) and repeated stubborn refusals to accept that his evidence-in-chief, which had mentioned not one positive thing about Mr Roohizadegan, was the result of his trying to convince the Court that Mr Roohizadegan’s management and behaviour were much worse than he knew them to be.
517 After reflection, I have concluded that the only plausible solution to that conundrum is that in giving his evidence Mr Jarman was prepared to be malicious but was not prepared to be wilfully dishonest in the context of the solemnity of giving his evidence in court. I reject that I should dismiss all of his evidence as that given by a witness careless of regard for the truth.
518 I therefore decline to accept Mr Tracey’s submission that Mr Jarman’s evidence should be accorded little weight.
519 To the extent that Mr Jarman’s evidence was adduced by the Respondents with the intention of it providing an objective basis for the Court to conclude that the Victorian region as led by Mr Roohizadegan was a team “in crisis” at the time he was dismissed, Mr Jarman’s fulsome concessions in cross-examination stand overwhelmingly as proof of the contrary.
520 I identify no reason why, to the extent the objective truth of that fact may be relevant, it would not be open to the Court to accept the concessions Mr Jarman made as standing against the acceptance of that proposition. It was given by a witness having knowledge of the relevant circumstances called on the Respondents’ behalf.
521 I note however that Mr Tracey’s submissions refer to Mr Jarman’s evidence that he had not reported his concerns to any of his superiors: not even to TechnologyOne’s Human Resources Manager. That assertion is in paragraph  of Mr Jarman’s affidavit. It has significance in these proceedings.
522 In that circumstance, whether I am right or wrong in my evaluation of the import of his evidence taken overall in the previous regard, it is not open to the Respondents to rely on Mr Jarman’s evidence as relevant to Mr Di Marco’s state of mind or the state of mind of anyone else within TechnologyOne involved in the decision to terminate Mr Roohizadegan, as at the time he or they made that decision.
523 Mr Dugina gave his evidence-in-chief by (a partially redacted) affidavit (Ex R46, CB392-398). His evidence is that he was employed by TechnologyOne as customer account manager from April 2013 until February 2018. He recommenced employment with TechnologyOne as sales manager in October 2018. That remains his position.
524 He was recruited by Mr Roohizadegan. He had taken the job despite his having been warned by an ex-employee that Mr Roohizadegan was difficult to work with. He then had reported directly to Mr Roohizadegan for two years, and then to Mr Ivancic. During that period however, Mr Roohizadegan had continued to micro-manage his work. He had found it frustrating to effectively work for two managers.
525 His evidence regarding Mr Roohizadegan’s management style was, inter-alia, as follows:
6. I observed that while Behnam could be generous and supportive, at times he could be manipulative, bullying and narcissistic. I recall that an example of this behaviour was when Behnam would ask you to dictate an email that you didn’t necessarily agree with and then he would make you send that email from your mailbox, sometimes standing behind you will dictating. This occurred multiple times, some examples that I can recall include the following:
a. On 30 October 2013, Benham told me to write an email to a customer, Corangamite, to decline sales negotiations and I recall that he stood behind me and dictated word for word what he wanted me to type. I did not agree with the email because I would not have declined to negotiate with the customer however, Benham told me to send the email directly to the customer. Ultimately, we did not secure the sale. Attached and marked ‘SPD-1’ is a copy of the email Behnam dictated and I typed to the Corangamite on 30 October 2013.
b. On 6 February 2016, Benham told me to write an email to him and other senior managers thanking Behnam for arranging a meeting with Yarra Ranges which he had not in fact arranged because I had instigated the meeting myself. At the time, I did not think I could say no to Benham because I thought that he would treat me less favourably if I refused his instruction. Approximately 40% to 50% of my income was commission and I considered that Benham had direct control over my livelihood, the commission I was earning, and the deals I was doing. I believed that if Behnam became disgruntled with me then he would negatively impact those thigs by reallocating customer accounts to other staff. Attached and marked ‘SPD-2’ is a copy of the emailed dated 9 February 2016 to Behnam, copying in Boris Ivancic, Richard Metcalfe, Peter Sutching and Marie Philips, about the Yarra Ranges meeting.
9. I observed that Benham would sometimes lie about people’s sales figures and pump them up to make other sales team members feel like they weren’t doing enough or they weren’t working hard enough. I considered that you never knew whether what Benham was saying was truthful or not. I recall that Behnam would often boast about his own accomplishments in meetings but he would downplay others’ successes, particularly interstate visitors and non-sales staff.
526 Mr Dugina gave evidence that he had observed that Mr Roohizadegan would “sometimes lie about people’s sales figures and pump them up to make other sales team members feel like they weren’t doing enough or working hard enough” (paragraph ). He recalled that in around February 2014 Mr Roohizadegan had threatened several staff (including himself) that they would be sacked if they did not meet 100% of their half year target. If needed, they would need to give up any extracurricular activities and work 16 hours a day to achieve that target (paragraph ).
527 He had decided to raise his concerns with Ms Gibbons in April 2016 because Mr Roohizadegan’s behaviour was more erratic than it had been:
19. … I discussed with Ms Gibbons some of the grievances that I had regarding him being so controlling and dictating emails. I also raised what I perceived as some of Behnam’s other negative traits such as his compulsive lying and manipulative behaviour. I recall that Ms Gibbons had agreed with me that Benham’s behaviour was not acceptable and she had told me that she was aware of what was going on.
528 In cross-examination he accepted that he had quite close friendships with both Mr Jarman and Mr Finch. They had discussed their opinions of Mr Roohizadegan amongst themselves, and had done so at the time of preparing their affidavits in December 2017. He further accepted that despite his criticisms of Mr Roohizadegan, he had been able to have a working relationship with him (T851, line 24).
529 The Applicant submits that:
7.3 The second of the small contingent of critics was Mr Dugina. He was the only one whose complaints were conveyed to Ms Gibbons (who then inaccurately conveyed them to Kathy Carr). His evidence was uncompelling and it is unreliable, especially given his collusion with Mr Jarman and Mr Finch, and the fact that he essentially reported to Mr Ivancic, rather than the Applicant.
7.31 Like Mr Jarman and Mr Finch, and as revealed in cross-examination, Mr Dugina sought to exaggerate the Applicant’s negative qualities, under-emphasise the Applicant’s positive qualities, and he had an agenda in that regard.
7.32 Mr Dugina’s evidence should be given little weight.
530 The Respondents made no submissions concerning the credit of Mr Dugina.
531 My impression of Mr Dugina as a witness was that he had a score of some kind to settle with Mr Roohizadegan. He required prompting during cross-examination to accept that there was another side to the story. That was so including in respect of his allegation that Mr Roohizadegan had told him he might have to sacrifice his running if he did not meet his sales targets, against which stood his prompted concession under cross-examination that Mr Roohizadegan provided him with personal support for the Medibank marathons in which he had run (T853, lines 23-24).
532 However, while I am satisfied that his evidence was that of a person incapable of impartiality I reject that Mr Dugina was entirely indifferent to the truth. He did not dispute that he and two other witnesses (Timothy Finch and Oliver Jarman) who gave critical accounts of Mr Roohizadegan were “quite close friends” and that they had all discussed their opinion of Mr Roohizadegan when preparing their affidavits in these proceedings. Similarly although his affidavit was wholly negative in respect of Mr Roohizadegan, in cross-examination he accepted that a 2015 focus group report containing more positive feedback was an accurate assessment of Mr Roohizadegan’s performance as a manager, and that the positive feedback he had himself provided about Mr Roohizadegan in a post-placement review had been accurate at the time it was given.
533 Mr Dugina also accepted that - contrary to the impression his affidavit might have conveyed -since Mr Roohizadegan had left TechnologyOne in May 2016 things had not gone smoothly in Melbourne. There had been multiple regional managers in that short time: initially Mr Ivancic on an acting basis, then Mike Inge, Mike Wilcox and, more recently, Sumal Karunanayake (T853, lines 26-47).
534 My overall impression however remained that notwithstanding such concessions, Mr Dugina implausibly resisted conceding that he was exaggerating Mr Roohizadegan’s faults as his manager. As an example, he deposed in his affidavit that Mr Roohizadegan “would sometimes lie about people’s sales figures and pump them up to make other sales team members feel like they weren’t doing enough or they weren’t working hard enough”. In his affidavit he also referred to his having complained about Mr Roohizadegan’s “compulsive lying”. However, in cross-examination he accepted that it was not possible for Mr Roohizadegan to have lied about his team’s sales figures because their figures were routinely placed on a projector at meetings for everyone to see. I reject that Mr Dugina’s original account in this regard may be accepted on the basis that in re-examination he stated that on “one occasion” Mr Roohizadegan had told the sales team that they should “look up to Amit [Sion] and Simon [Dugina]” as they were achieving their sales targets, when in fact Mr Dugina knew that was not the case. In my view this aspect of Mr Dugina’s evidence simply demonstrated his antagonism towards Mr Roohizadegan and his willingness to exaggerate the significance of what might be thought to be, at worst, a passing error.
535 I do not dismiss all of Mr Dugina’s account. I accept that Mr Dugina resented Mr Roohizadegan’s “micro-management”. I accept that the instances about which he gave evidence entitle me to find that Mr Roohizadegan did employ that style of management.
536 However, I otherwise discount the weight I am entitled to give Mr Dugina’s evidence regarding Mr Roohizadegan’s management style by reason of his willingness to exaggerate and his manifest want of objectivity.
537 Mr Finch gave his evidence-in-chief by way of a (partially redacted) affidavit (Ex R52, CB379-383). His evidence is that he had left TechnologyOne’s employment at the end of 2017. He was later employed by Salesforce. He had been employed with TechnologyOne for some 13 years. He had had the role of Pre-sales Consultant from May 2008 until July 2015, when he was promoted to Principal Pre-sales Consultant. He had always been based out of the Melbourne office.
538 His evidence as to Mr Roohizadegan’s management style was that he had displayed a lot of trust in him, and had allowed him to run his own show. He had not micro-managed him (paragraph ). Generally however, he was a micro-manager:
15. My observation of the way that Behnam managed the sales team was that it was harsh, controlling and inappropriate. I understand that Behnam had to drive the sales team, but I considered that he would often over step the line and resort to bullying behaviour.
18. I observed that Benham would undermine the sales team in front of others or talk negatively behind their backs. I was often appalled by Behnam’s behaviour. For example, Amit Sion did very well under Behnam. However, he would talk about him behind his back and saying things like ‘he’s weak’, ‘he’s United Nations’, ‘he doesn’t want to confront people’ and those sorts of things. Another example would be Tony Kishazi. Behnam used to tell me he was a horrible salesperson and I could be a much better salesperson.
19. Behnam used to regularly denigrate salespeople to me or even in groups when those people weren’t there. It was common enough that it was never shocking when he made negative comments it was more like par for the course. It was just his personality.
539 He gave evidence that in early 2015 Mr Roohizadegan must have been told about what he had said about his own and others’ concerns in a focus group, which was meant to be confidential. The next day Mr Roohizadegan had made a comment which in Mr Dugina’s perception suggested that he did not take those focus groups seriously but did reflect what had been said (paragraphs -). He had raised concerns with Ms Gibbons that Mr Roohizadegan had come to know information given in confidential sessions.
540 In cross-examination, Mr Finch conceded that he had discussed his complaints with Mr Dugina and Mr Jarman and it was possible he had done so around the time he had prepared his affidavit. However, in re-examination he explained that he thought that unlikely as they had been specifically instructed not to do so.
541 He conceded that he himself had spoken negatively about TechnologyOne’s Victorian sales team to Mr Roohizadegan:
Mr Tracey: No. It’s, in fact, the case that you spoke negatively about sales reps to Behnam, didn’t you?
Mr Finch: I would – Behnam and I would have conversations about the performance of the sales team and I – yes.
Mr Tracey: You would say things like, “Your sales reps do not get it, Behnam. They do not understand what they are selling.” You said that to him, didn’t you?
Mr Finch: Yes.
Mr Tracey: And you would say, “These sales people do not know how to sell, but are also not willing or cannot learn the product that TechnologyOne is selling.” You also said that, didn’t you?
Mr Finch: It’s possible.
Mr Tracey: And you had a focus, in particular, on Amit Sion as someone who you said was not doing his job properly; that’s right, isn’t it?
Mr Finch: No.
Mr Tracey: You criticised Mr Sion to Behnam, didn’t you?
Mr Finch: Yes.
542 He accepted that feedback about Mr Roohizadegan was not entirely negative. It had been mixed (T902, line 32). After denying recalling that there was a lot of positive feedback, he gave the following evidence when taken to the notes for the 2015 Victorian Sales Focus Group prepared by Ms Gibbons:
Mr Tracey: Well, let’s go through them. If you look at the first one:
He provides encouragement and gets hands-on with opportunities.
Is that true?
Mr Finch: Some – yes and – yes and no.
Mr Tracey: Continuing:
He was very good in terms of helping with opportunities and closing deals.
Mr Finch: I would say that’s fair, yes.
Mr Tracey: Yes. And he’s:
Getting his time can be challenging, but he’s very good at helping with opportunities and closing deals.
Mr Finch: Yes.
Mr Tracey: He was seen by some people as a mentor?
Mr Finch: Yes.
Mr Tracey: Continuing:
He taught people the world of sales and helped them to grow their market, expand in deals.
Mr Finch: Yes.
Mr Tracey: And:
There have been learnings that he has provided to people that have been invaluable.
Mr Finch: Yes. That’s there, yes.
Mr Tracey: Yes. He’s great at his job?
Mr Finch: I don’t agree with that.
Mr Tracey: Continuing:
He can be authoritarian in his management style, but this may be a cultural thing.
Mr Finch: I agree with that.
Mr Tracey: Continuing:
…you just have to work around it.
That was the way to deal with it?
Mr Finch: Yes.
Mr Tracey: And:
People had an immense respect for him.
Mr Finch: No.
Mr Tracey: Continuing:
…an element of control in his management –
referred to as the “Kevin Rudd” factor?
Mr Finch: No.
Mr Tracey: You don’t agree with that?
Mr Finch: No.
Mr Tracey: Skip the next one which is about Richard:
He is motivating and supportive. He can also be tough.
That’s true, isn’t it?
Mr Finch: I – sometimes yes, sometimes no.
Mr Tracey: He’s successful; that’s right, isn’t it?
Mr Finch: Early on, yes.
Mr Tracey: Yes. You say “early on”. If I put it to you that he was a very successful manager throughout his employment with TechnologyOne, you don’t disagree with that, do you?
Mr Finch: I think in terms of the – I think the region was very successful.
Mr Tracey: That’s right and it was very successful under his management, wasn’t it?
Mr Finch: Yes.
Mr Tracey: And he has a lot of good qualities; do you agree with that?
Mr Finch: In – in his role; it’s a – it’s some yes, some no.
Mr Tracey: And he tells it how it is, but that’s accepted by people as being part and parcel of dealing with him?
Mr Finch: Yes.
Mr Tracey: Continuing:
Some people get his attention and others don’t.
Mr Finch: Yes.
Mr Tracey: Continuing:
Great for some people and very patient.
Mr Finch: Say again.
Mr Tracey: Continuing:
He’s great for some people and he’s also very patient.
Mr Finch: I don’t know about patient, but he was good for some people.
Mr Tracey: Continuing:
Everyone wanted his knowledge and assistance.
Mr Finch: I – I guess, as a manager, that was what he was there for.
Mr Tracey: Yes:
…although they weren’t always a priority for him.
Mr Tracey: I will put it this way: some people were prioritised over others, according to this, by Behnam?
Mr Finch: Yes. I agree with that.
Mr Tracey: And you’ve given evidence, as I understand it, that Behnam’s management style towards you was very hands-off?
Mr Finch: Yes.
Mr Tracey: Yes. Whereas you witnessed that he was a much more detailed manager, I think you referred to “micro-management”, in relation to other staff; is that right?
Mr Finch: Yes.
Mr Tracey: So you would agree from that that he dealt with staff differently, depending on who they were?
Mr Finch: Yes.
Mr Tracey: And he did that because he was trying to bring out the best in each of his staff members?
Mr Finch: I guess that was his intention.
543 The Applicant submits that:
7.33 Mr Finch was called as the last of the disgruntled Victorian employees. His collusion with his friends, Mr Jarman and Mr Dugina, undermines his reliability and credibility. Like them, he had an agenda of seeking to criticise the Applicant. His evidence is unreliable and should be given little weight.
544 The Respondents advance no submission with respect to the credibility of Mr Finch.
545 I reject that Mr Finch’s evidence should be afforded no weight on the basis that it was the product of collusion. Of Mr Jarman, Mr Dugina and Mr Finch, only Mr Dugina gave evidence of their having discussed their evidence at the time of preparing their respective affidavits. Mr Jarman denies that that took place, and Mr Finch gave evidence that he thought it unlikely. I would not draw an adverse conclusion in those circumstances. It is however clear that having regard to the terms of his cross-examination as I have set out above, Mr Finch was prepared to criticise Mr Roohizadegan for allegedly speaking adversely about his sales team: notwithstanding that he himself had made strong criticisms of them, behind their backs, to Mr Roohizadegan.
546 Given that in the end Mr Finch accepted that there were mixed views of Mr Roohizadegan’s management style within the region, that Mr Roohizadegan had not micro-managed all of his staff, and that his intention in dealing with individuals differently had been to bring out the best in each of them, I decline to characterise his evidence as wholly unreliable.
547 However, I accept Mr Tracey’s submission that Mr Finch commenced his evidence with an agenda of seeking to criticise the Applicant. I am satisfied that that agenda shaped his testimony and, for that reason, I should give only modest weight to his evidence insofar as it is adverse to Mr Roohizadegan.
548 Mr Metcalfe gave his evidence-in-chief by way of a partially redacted affidavit (Ex R50, CB373-377). An annexure to that affidavit (an email chain between Mr Metcalfe, Mr Roohizadegan and others) was also tendered (Ex R51, CB4265A-4265B). Mr Metcalfe’s evidence is that he is currently employed by TechnologyOne as State Manager Sales and Marketing for Tasmania. From 16 March 2015 to 8 February 2016 he had taken on the additional position of Regional Sales Manager for Victoria. He had spent three days a week in Victoria and two days in Tasmania. His affidavit states that the Regional Sales Manager managed the sales team and reported to Mr Roohizadegan (paragraph ).
549 He had been appointed to the Regional Sales Manager position by Mr Harwood. He explained the circumstances at the time of his appointment as follows:
9. Martin Harwood was the Operating Officer at that time and it was Martin who had placed me into the Victorian Regional Sales Manager role. Martin set me the objective to bring stability to the Victorian sales team. I can’t recall the specific numbers but sales team turnover in Victoria was extremely high. There were only six people in the Victorian team at the time of my appointment to the Victorian Regional Sales Manager role but there should have been nine. There had been resignations and no ability to satisfactorily fill the availabilities.
550 He was told by Mr Harwood that the business was having trouble recruiting someone for the position, and there had been no internal applications (paragraph ).
551 Mr Metcalfe knew that Mr Roohizadegan was not happy with him working in the Victorian office. There was a lengthy delay in confirming his appointment, which Mr Metcalfe attributed to delaying tactics on Mr Roohizadegan’s part and his concern not to have someone on his “patch” who could see what he was doing (paragraph ). He described the culture he discovered in Victoria as follows:
5. I could best describe the culture in the Victorian TechnologyOne office as dreadful. There was no chatter in the office, no-one was interacting with each other and this concerned me.
6. I observed that there was invisible line across the office where staff did not cross because they were sales people and Behnam was the boss. In other offices, the sales people and their associates (pre-sales, PCSMs, consultants, consulting director) would freely interact with stand-up ad hoc conversations, bouncing ideas etc. The atmosphere in the Victorian office was that sales staff sat quietly at their desks with no ‘banter’ or chat.
7. The Human Resources (HR) department conducted focus groups with teams without their manager being present, to discuss how things could be improved. A number of Victorian office team members told me that they were nervous about saying anything in the focus group because they felt that Joanne and Amit would report what they said back to Behnam and that would have negative consequences for the Victorian sales team. I believe it was Simon Dugina who made the comment – others did too but I can’t recall names. Joanne was Benham’s personal assistant and Amit was Benham’s favourite sales person.
552 During his time as the Victorian Regional Sales Manager, he had had great difficulty recruiting people to the team. He had heard feedback from candidates that they had heard that Mr Roohizadegan was difficult to work with. When he had put candidates forward, Mr Roohizadegan had typically rejected them (paragraph ).
553 Mr Metcalfe’s evidence is that shortly after he had commenced in Melbourne he had formed the view that there were performance issues with two of the sales staff, Mr Loler and Mr Tsalkos, who he considered were not suitable to remain at TechnologyOne. He had discussed his observations with Mr Roohizadegan, who had given him clear verbal instructions “to get rid of them”. He had been surprised to receive an email from Mr Roohizadegan on 18 June 2015 stating he did not know what was going on with respect to Mr Tsalkos, and referring to him as being part of a “fifth column” (Ex R51, CB4265A-4265B). He understood that to mean that Mr Roohizadegan saw him as someone who was causing destruction from within. He had been offended, and had taken Mr Roohizadegan to task about the use of that expression. Mr Roohizadegan had responded to the effect that he had not meant to cause offence by the use of that term. English was not his first language. Mr Metcalfe had not believed him. Mr Roohizadegan had used that excuse before. In his experience, Mr Roohizadegan spoke and wrote English very well (paragraphs -).
554 He had been very concerned at the effect of Mr Roohizadegan’s behaviour on the Victorian business and had asked Mr Harwood “to do something about the situation”. He had expressed the view that for the good of the business Mr Harwood should consider a “different management approach” towards Mr Roohizadegan (paragraph ). In his view Mr Roohizadegan had done a good job in building the business but “he was not the right person to expand the Victorian business” because he could not delegate responsibility (paragraph ).
555 In cross-examination, Mr Metcalfe’s evidence was that he did not know that Mr David van den Brule had been an internal candidate for his position as Regional Sales Manager for Victoria that Mr Harwood had offered him. Nor did he know that Jesse Edwards and Mr Pantano had both applied for the role. He had understood that there were no such candidates because that was what Mr Harwood had told him (T876, line 14).
556 He had not known that Mr Roohizadegan had wanted Mr David MacDonald, Mr van den Brule or Mr Pantano to take the role. He accepted that Mr Roohizadegan may have wanted someone full-time rather than part-time (T876, line 40), but nonetheless asserted that Mr Roohizadegan “got the best person for the job” (T877, line 41).
557 He made that claim notwithstanding his concession that his own evidence was that licence fee growth in Tasmania showed a seesaw history, with a number of years of negative growth (T878-879). He did not accept that Mr Roohizadegan might have wanted somebody who had a better performance record in the role.
558 Mr Metcalfe accepted that his having decided that two of the sales staff, Mr Mark Loler and Mr Con Tsalkos, were not suitable to remain was not consistent with the objective of bringing stability to the Victorian sales team (T882, lines 5-15). However, he maintained that neither had the attributes and skills for the job (T882, line 24). Cross-examined as to his assertion that Mr Roohizadegan had verbally instructed him “to get rid of them”, he gave the following evidence:
Mr Minson: And you say that Behnam gave you verbal instructions to get rid of them. He never told you to get rid of them, did he?
Mr Metcalfe: No. No. He very clearly told me to get rid of them.
Mr Minson: Well, he actually told you to put them on performance management, didn’t he?
Mr Metcalfe: No.
Mr Minson: He never told you to put them on performance management?
Mr Metcalfe: No. He told me to get rid of them.
Mr Minson: So he never told you – and by – so you say his words were “get rid of them”?
Mr Metcalfe: Yes.
Mr Minson: And by that you took him to mean terminate their employment?
Mr Metcalfe: Yes.
Mr Minson: And he never told you to put Mark on performance management?
Mr Metcalfe: Not at all to my memory, no.
Mr Minson: And he didn’t tell you that about Con?
Mr Metcalfe: No.
Mr Minson: Well, can I take you to volume 8 of the court book at page 4230 – 4230. You see about halfway down the page there there’s a date 25 May 2015 at 12.13 am?
Mr Metcalfe: Yes, see it.
Mr Minson: Do you recognise that as an email from Behnam to you?
Mr Metcalfe: Mmm.
Mr Minson: Do you see in the third paragraph it says:
And as for Mark you need to start putting him on performance management. This may assist him to improve.
Mr Metcalfe: Yes, I see that.
Mr Minson: Do you stand by your evidence that you just gave that Behnam never told you to put Mark on a performance management?
Mr Metcalfe: As I said to you, not to my recollection. But the timing of this and the other conversations that took place I – I can’t tell you which one occurred first.
559 It was later established that Mr Roohizadegan’s email directing Mr Metcalfe to put “Mark [Loler] on a performance management plan which might assist him to improve” (Ex A32, CB4230) was sent in May 2015, and thus well before 18 June 2015: the date on which Mr Roohizadegan had complained about not knowing what was going on. To this, Mr Metcalfe responded: “I do not take an email at a quarter past midnight as a firm instruction…” (T884, lines 18-19).
560 The following exchange reflects the tenor of Mr Metcalfe’s evidence in cross-examination:
Mr Minson: So he’s telling you in May 2015, isn’t he, (a) to put him on performance management, and (b) that he at least is doing that with a view to assisting to improve, isn’t he?
Mr Metcalfe: Yes.
Mr Minson: And that’s contrary to the evidence you gave just before I took you to this document, isn’t it?
Mr Metcalfe: No, I think there’s three weeks have taken place between that email and …
Mr Minson: The question I put to you was he never told you to put Mark on performance management and you said, “Yes”?
Mr Metcalfe: I said to my recollection he did not ask me to put him on performance management …
Mr Minson: So is …?
Mr Metcalfe: … and I do not take an email at a quarter past midnight as a firm instruction on it. I would have had a follow up conversation with him. And in the three weeks
Mr Minson: Well – well …?
Mr Metcalfe: … that went on since that email it was made very clear …
Mr Minson: … your follow up email is actually just above. You respond at 2.21 in the morning two hours later saying, “Understand. Will do”. That’s your email, isn’t it?
Mr Metcalfe: Yes.
Mr Minson: And Behnam responds to you the following morning at – this is the same day – at 8.52 am, he says, “Thanks, Richard”?
Mr Metcalfe: Mmm.
Mr Minson: That’s not a firm instruction, is it?
Mr Metcalfe: I think your – things move quite – quite a lot and I don’t know that …
Mr Minson: Well, a question …?
Mr Metcalfe: … that exchange is – would have been the final and definitive set of conversations that we had about that.
Mr Minson: What exchange?
Mr Metcalfe: This email exchange.
561 In re-examination Mr Metcalfe explained there had been subsequent discussions about going down either the performance management route or the deed of settlement route. Mr Roohizadegan had been “well across exactly those conversations” (T869, lines 28-36).
562 Mr Metcalfe however accepted that some decisions were made by him and Mr Harwood without consulting Mr Roohizadegan (T886, lines 10-15).
563 As to who he had regarded as his “boss”, Mr Metcalfe gave the following evidence:
Mr Minson: You called Martin [Harwood] – you say that you typically called Martin from the Melbourne Airport as you were flying home back to Hobart; is that right?
Mr Metcalfe: Most weeks, I would – I would check in with him, yes. He was my boss.
Mr Minson: Well, Behnam was your boss, wasn’t he?
Mr Metcalfe: No. Sorry, let’s be clear. So my direct reporting line was to Martin and I was – for the period of 11 months, I was – yes, look, I was working for Behnam …
Mr Minson: Well, you had …?
Mr Metcalfe: … so for those three days a week …
Mr Minson: You had two roles, didn’t you?
Mr Metcalfe: Yes. Correct.
Mr Minson: In your role as manager for Tasmania, you reported to Martin, but in your role as regional sales manager for Victoria, your direct report was Behnam, wasn’t it?
Mr Metcalfe: Yes. Yes. I’m – yes, happy with that.
Mr Minson: But you did actually, as you’ve just said, see Martin as your real boss, didn’t you, in both those roles?
Mr Metcalfe: I was very respectful of Behnam, very respectful of Behnam.
Mr Minson: But you were calling Martin, weren’t you, when you had had your few days in Victoria to update him on the situation in Victoria, weren’t you?
Mr Metcalfe: Yes. Periodically, yes.
Mr Minson: Well, you say “typically”. Was it typically or periodically? Typically, as in each week …?
Mr Metcalfe: Well, how …
Mr Minson: … when you fly home, each week when you fly home to Hobart?
Mr Metcalfe: I wouldn’t say it was every week, but regularly, yes. Every week, every couple of weeks, I – I – I don’t think it would have been every single week.
564 Mr Metcalfe denied giving misleading evidence that he had liked Mr Roohizadegan, notwithstanding his having sent a note to Ms Gibbons on 16 February 2016 saying “I’ll try not to get squiffy and say something nasty about Benham” (Ex A76, CB4978). He did not recall telling Ms Gibbons that he had felt undermined by Mr Roohizadegan (T891, lines 27-40).
565 In cross-examination, notwithstanding the more positive views that had been expressed in staff focus groups he remained unshaken in his evidence that the culture in Victoria had been “dreadful”. When confronted in cross-examination with evidence from a focus group conducted in the first half of 2015, to the extent that it suggested otherwise his explanation was that his joining the Victorian region in March 2015 had improved the survey results. He had had a positive impact on the culture.
566 The Applicant submits that:
7.34 Mr Metcalfe’s oral evidence revealed him to be a partisan critic of the Applicant. He did, however, shed some light on the matter of licence fee revenue growth and how it varied from year to year in each region including his region of Tasmania. In this respect, his evidence undermined the Respondents’ attempt to use two years of reduced licence fee growth in the Victorian region as being indicative of some downward trend which justified the Applicant’s dismissal.
567 The Respondents make no submissions with respect to the credit of Mr Metcalfe.
568 Taken as a whole, the evidence of Mr Metcalfe shows he lacked self-awareness. It may be accepted that Mr Metcalfe did not know that Mr Harwood had engineered his appointment against Mr Roohizadegan’s wishes, but his evidence about who he had viewed to be his “boss” and his weekly reporting to Mr Harwood demonstrates a complete lack of insight into why he might have come to have been seen by Mr Roohizadegan as working for Mr Harwood rather than in his interests and thus acting as a “fifth column”. That said, I accept that Mr Metcalfe was understandably offended by Mr Roohizadegan’s use of that expression: notwithstanding that on my reading of Mr Roohizadegan’s email the “sting” of his observation (assuming it was not merely an infelicitous choice of words by a person for whom English was a second language) was not really aimed at him. It may be better understood as Mr Roohizadegan (I accept in a manner likely to be viewed as provocative) pushing back against Mr Harwood’s making decisions about his region which he had opposed without consulting him.
569 I specifically reject Mr Metcalfe’s evidence that Mr Roohizadegan gave him oral instructions to “get rid of” both Mr Loler and Mr Tsalkos. That is entirely inconsistent with the established documentary record, at least in respect of Mr Loler, which establishes that Mr Roohizadegan had instructed Mr Metcalfe to put “Mark” [Loler] on a performance management plan to give him a chance to improve. Having rejected his credit in that regard, I do not accept Mr Metcalfe’s evidence in re-examination that Mr Roohizadegan had subsequently been well across the conversations he had (I infer with Mr Harwood) prior to Mr Roohizadegan sending his email of 15 June 2015 (Ex R51, CB4265A-4265B). I am satisfied that Mr Metcalfe made those arrangements with Mr Harwood leaving Mr Roohizadegan no choice but ultimately to accept the outcome at which they had arrived.
570 I also reject Mr Metcalfe’s evidence that his arrival in Melbourne in March 2015 explained the positive findings of the focus group in respect of which he was cross-examined. The focus group document (described as a quantitative survey conducted by email) had Mr Roohizadegan as its subject. It had nothing to do with Mr Metcalfe.
571 Mr Metcalfe’s evidence that he “really liked” Mr Roohizadegan not only must be rejected: it also diminishes any residual credit to which his evidence might be entitled. In re-examination Mr Metcalfe sought to maintain that the words he used in his message to Ms Gibbons might have been merely “banter” of a kind that he would regularly exchange with her (T897, lines 1-9). If it were banter, it nonetheless clearly revealed his true state of mind. His evidence that he had really liked Mr Roohizadegan is wholly implausible.
572 It is sufficient that I record, having regard to the above considerations, that I am satisfied that Mr Metcalfe 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.
573 Mr Irwin gave his evidence-in-chief principally by affidavit (Ex R54, CB364-366). His evidence is that he had been employed by TechnologyOne as State Manager for Western Australia from March 2011 until October 2018. He is now General Manager of Strategic Sales with that company.
574 His evidence is that on 12 May 2016 he and Mr MacDonald were walking out of a room (I infer in Brisbane during TechnologyOne’s State Managers’ meeting of that date). Mr Roohizadegan had called over to Mr MacDonald. Mr MacDonald had gone over to him - about 6 to 10 feet away - and they had spoken for about 20 seconds. He had not heard what was said. Whatever was said had not been said loudly or he would have heard it. He had not asked Mr Roohizadegan what it had all been about.
575 He had then gone to Mr Pye’s office with Mr MacDonald to discuss some matters with Mr Pye. He had seen Mr Roohizadegan come in when he was about to leave. He had not heard anything about which they spoke.
576 Mr Roohizadegan had telephoned him on Sunday 15 May 2016. Mr Irwin’s evidence is that the effect of that conversation was that Mr Roohizadegan was trying to get him to agree with his version of his interaction with Mr MacDonald, including that he must have heard Mr MacDonald say “Screw you Benham” in the conversation he had witnessed. He had told Mr Roohizadegan that there were processes for dealing with issues like that and he should speak to HR. His impression of that phone call had been that Mr Roohizadegan was playing the victim and trying to get his support for a complaint against Mr MacDonald.
577 He further recalls having a second conversation with Mr Roohizadegan on the evening of 17 May, the day before Mr Roohizadegan was dismissed:
8. Benham then rang me the night before he was dismissed, on 17 May 2016. During this call, Behnam said words to the effect of:
(a) he had some communication from Adrian Di Marco and was being asked to come up to Head Quarters (HQ); and
(b) he was happy about going up to HQ and he thought that everything between him and Stuart was going to be resolved.
9. The impression I got from the phone call was that Benham thought they were going to move on from this issue following the meeting.
578 In cross-examination, he accepted that on 18 April 2016 he had sent an email to Mr Roohizadegan congratulating him on Victoria being the top region for sales for the half year.
579 He remained insistent that he had not heard any of the words spoken as between Mr MacDonald and Mr Roohizadegan on 12 May 2016. He accepted that he had had a house, mortgage and a sick child in 2016 but denied having upbraided Mr Roohizadegan for involving him in his complaint on those bases:
Mr Minson: And he said to you, “I’ve given your name to TechnologyOne as my witness”. Is that right?
Mr Irwin: No.
Mr Minson: And you said to him, “Why have you done that? Why did you bring me into it? Why did you bring me into your complaint?” didn’t you?
Mr Irwin: No.
Mr Minson: And you said to him that you’ve got a new house?
Mr Irwin: No.
Mr Minson: That you’ve got a large mortgage?
Mr Irwin: No.
Mr Minson: That you have a sick child?
Mr Irwin: No.
Mr Minson: That you – if you mention his name again, he would deny – you would deny that you ever heard Stuart saying, “Screw you”?
Mr Irwin: No.
Mr Minson: Nothing further, your Honour.
580 The Applicant submits that:
7.35 Mr Irwin’s evidence was direct and in fact he was one of the Respondents’ most impressive witnesses. It is submitted, however, that he was protecting his position as an employee of the First Respondent, like he did when he failed to back up the Applicant in relation to matters Mr Irwin had witnessed.
7.36. The Court should accordingly prefer the Applicant’s evidence to Mr Irwin’s evidence where that evidence conflicts, because there is a strong basis to accept the Applicant as witness of truth (for the reasons set out above), and Mr Irwin had a motive for not being accurate in his recollection.
581 The Respondents advance no submissions with respect to the credit of Mr Irwin.
582 I need not address the Applicant’s submissions as to motive.
583 It is sufficient to observe that Mr Irwin’s evidence in cross-examination was entirely to the effect that he had heard nothing of what was said during the exchange between Mr MacDonald and Mr Roohizadegan on 12 May 2016. Accepting that evidence does not undermine the Applicant’s case. His failure to hear what was said provides no basis for the Court to revisit its earlier expressed conclusion that it should prefer Mr Roohizadegan’s account, supported by his contemporaneous notes in that regard, over that given by Mr MacDonald.
584 While it might seem curious that Mr Irwin’s affidavit does not suggest that he told Mr Roohizadegan during their phone call of 15 May 2016 that he had not heard what had been said by Mr MacDonald at that time, given he was not cross-examined on the premise that his omission to include that matter in his statement was significant I decline to draw an adverse conclusion with respect to his credit in that regard.
585 Mr Orchard gave his evidence-in-chief principally by affidavit (Ex R53, CB360-362). His evidence is that he had commenced his employment with TechnologyOne as Financial Controller in 1994 when it was still a quite small company. He had been appointed Chief Financial Officer in 1999 and had remained in that position until December 2009. He had also served as Company Secretary from 10 August 1995 until he resigned on 8 July 2011. There is a lacuna in the evidence but I infer he was subsequently re-employed by TechnologyOne and, as at the time of his giving evidence, held the role of National Finance and Commercial Manager.
586 His evidence is that between 2006 and the end of 2009 he had interacted with Mr Roohizadegan a couple of times a month in his role as Chief Financial Officer. His recollection of Mr Roohizadegan was that he was extremely driven by remuneration and self-promotion. A common theme of his phone calls was that he thought he should be earning more money.
587 His evidence was that he had no recall of any specific discussions with Mr Roohizadegan regarding incentive payments for SMS products. However, he was confident he would not have said to Mr Roohizadegan that he would arrange for him to receive an incentive payment for a SMS deal. That was because the SMS products were not incorporated into the State Managers’ remuneration and incentive package. He would therefore have had to seek approval from either Mr Chung or Mr Di Marco before making such an arrangement, and he had no recollection of ever having done so.
588 As to the SMS products, he gave the following evidence:
9. … the SMS product had only been developed in the early 2000’s. The SMS product was starkly different from the TechnologyOne Financials product because SMS was a large and complex product that required specialist knowledge of the higher education sector to sell and implement. As such, the personnel who were responsible for selling the SMS product were a National team, based in Brisbane, managed centrally by head office.
10. In 2009, Theresa Murphy headed up the SMS team in Brisbane. The only expectation from State Managers, like Benham, was for them to create introductions between existing clients and the SMS team where appropriate. For example, if the Victorian team had previously sold a financials product to a University, then Benham was expected to make an introduction if it would create an opportunity for the SMS team to sell the SMS product to that customer. However, this was the extent of Benham’s (or any other State Manager’s) involvement in the SMS deal.
11. Benham would have been unlikely to be involved in the product scoping, demonstrations, pre-sales or contract negotiations for the SMS product deals because those functions were handled by the central SMS team, in conjunction with the risk management committee. Therefore, there were no commissions or incentives payable to Behnam, or any other Regional/State Manager, for SMS deals, as they played no part in the contract or implementation.
589 In cross-examination, Mr Orchard conceded it was possible that Mr Roohizadegan had raised with him his entitlement to incentives on sales of SMS products including in respect of the implementation of those services at Melbourne University:
Mr Tracey: Now, you say in paragraph 6 as well that you recall a common theme of Benham’s phone calls was that he thought he should earn more money. Do you see that?
Mr Orchard: Yes.
Mr Tracey: And that included him referring to incentives based upon student management services?
Mr Orchard: No, I don’t recall that being the reason.
Mr Tracey: You say in paragraph 7 under the heading Student Management Services that you don’t recall specific discussions with Behnam about – or regarding incentive payments for SMS products, but you would agree with me that it’s possible that there were such discussions?
Mr Orchard: It is possible, but I don’t recall any.
Mr Tracey: And the – because what – I withdraw that. Because what Behnam’s evidence has been is that between 2006 and 2009, he raised concerns with you about SMS revenue not being put into business unit 03. Do you recall that?
Mr Orchard: No, I don’t.
Mr Tracey: Possible that he raised those concerns with you?
Mr Orchard: Possibility, yes.
Mr Tracey: And he also has given evidence that he raised a particular concern or a specific concern about revenue generated from the implementation of services at Melbourne University. Do you recall that?
Mr Orchard: No, I don’t.
Mr Tracey: He says that he raised with you the matter of whether the revenue from the implementation of services at Melbourne University had not been put into business unit 03. Does that ring a bell?
Mr Orchard: No, it doesn’t.
Mr Tracey: Is it possible that he raised that?
Mr Orchard: It’s possible.
590 Mr Orchard accepted that creating an introduction between a client and a potential client of TechnologyOne for SMS services was an important first step for a Regional Manager to complete (T914, lines 1-36). He conceded that Mr Roohizadegan was involved in those sorts of introductions. He could not gainsay that Mr Roohizadegan may have been involved in product scoping, demonstrations and contract negotiations regarding SMS products with Melbourne University (T914, line 37-T915, line 9).
591 He conceded that being involved in the making of a contract or its implementation was not a requirement of Mr Roohizadegan’s KPIs or his entitlement to remuneration, although he did not believe that SMS revenue went to “Business Unit 03”. If that was not correct, then his evidence was that it would not matter if Mr Roohizadegan had or had not played a part in the transactions leading to those sales (T914, lines 23-34).
592 In re-examination Mr Orchard gave the following evidence:
Dr Spry: Mr Orchard, you were asked some questions about Mr Roohizadegan raising with you incentives for Melbourne University; do you recall that question? You said, well, it was possibly raised with you?
Mr Orchard: But I have no recollection of it.
Dr Spry: And had he raised it with you, what could you have done? Would you have been in a position to – well, do what? What could you have done if he had raised it with you?
Mr Orchard: My action would have been to discuss it with my – the person that I reported to because it would have been outside the scope of the – the net profit definition as well as the – that it related to a product that wasn’t under the domain of the Victorian business unit, and I would have discussed it with my – the person that I reported to and – and possibly others.
Dr Spry: And who did you report to at that time?
Mr Orchard: Edward Chung.
Dr Spry: And when you say it wasn’t within the domain, why do you say that, of business unit 03?
Mr Orchard: Business unit 03 was largely responsible for the sale and implementation of the financials products which was the original product started by TechnologyOne. Student Management Systems was run as a national product, and there was a central team based in Brisbane, and they were responsible for all facets including sales, consulting and support.
593 The Court then sought to clarify the import of that evidence:
His Honour: You’ve referred to SMS as being outside the domain of business unit 03. And you’ve explained that in part, as I understand it, by saying that it was because the generation of sales and the like was [the] responsibility of the Brisbane office. But as I apprehend the evidence in this proceeding there were also other – I think Dr Spry has described them as lines that were run out of Brisbane. In evidence they’ve been referred to, I think, as verticals.
Dr Spry: Verticals. Yes.
His Honour: Verticals which were run out of Brisbane and sold by Brisbane, but as I apprehend, it attributed to the state-based regions. Now, that’s as I apprehend the evidence, but I’m subject to correction?
Mr Orchard: Would you like me to …
His Honour: Is that correct? I mean, is that understanding correct or can …?
Mr Orchard: Yes. When those words were being used a few moments ago what – what’s my recollection is that it might have been one product, but there were three business units within that product. And so, student management, as the example, would have had a consulting business unit, a research and development unit, and the core sales unit. So it didn’t mean that one product meant one business unit. And it’s also not the same as a geographical business unit because the – the sites that were implemented for student management were all around Australia. So it wasn’t – it wasn’t a Brisbane thing or a Queensland thing; it was a – it was managed at the corporate office in Brisbane.
His Honour: Was there any other excluded product – sorry, was there any other product which was centrally managed, if I could put it that way? You said it wasn’t exclusively out of Brisbane, but it was …?
Mr Orchard: Another example I can recall is what – it was originally called project services, and I think …
His Honour: Yes, I think that’s exactly – project services?
Mr Orchard: And it then became custom developments, I think.
His Honour: Yes?
Mr Orchard: So that would be another example where it was a team run centrally, but they did have projects in different locations around Australia.
His Honour: So with project services, was the revenue attributable to regions, or was that not …?
Mr Orchard: No, that would have all …
His Honour: No?
Mr Orchard: … been retained by them, albeit with probably a small percentage going to fund the corporate teams.
594 The Applicant submits that:
7.37 Mr Orchard’s evidence during cross-examination is of some use in understanding the matter of how the Applicant was remunerated and his role as a regional manager in supporting the SMS product, Mr Orchard also conceded that the Applicant’s raising with Mr Orchard of his entitlement to incentives based upon SMS revenue. Mr Orchard’s evidence is otherwise of little weight or relevance in the proceeding.
595 The Respondents advanced no submissions with respect to the credit of Mr Orchard.
596 I am satisfied that Mr Orchard was a credible witness. The concessions he made in cross-examination, including that Mr Roohizadegan may have raised with him his entitlement to incentives with respect to SMS services, enhance rather than detract from his credit. Subject to the correctness or otherwise of the assumptions he had made regarding Mr Roohizadegan’s entitlement to incentives for particular sales achieved by TechnologyOne in Victoria, I accept his evidence.
597 Mr Arnott gave his evidence-in-chief by way of an affidavit (Ex R55, CB368-371). His evidence is that he joined TechnologyOne in January 2009 as the Research and Development Manager for SMS. In February 2011, he had become SMS General Manager. In February 2017, he had become TechnologyOne’s Sales Director for Education. His evidence with respect to the history of the SMS product was as follows:
6. When I first joined TechnologyOne in 2009, the SMS product was sold by a separate business unit which I ran. The SMS business unit had its own profit and loss statement (P&L) and it was centralised rather than operating through the regions. It had its own sales team, consulting team as well as research and development team.
7. The reason for this separation from the other products which were run through regional P&Ls, was because the SMS product is unique. The SMS product is targeted to the education sector and effective engagement in that sector requires specific knowledge to generate sales, which the regional sales teams did not have until recently.
8. In 2009, the regions were not involved in the SMS product sales whatsoever because they were not trained in how to sell the SMS product. Whilst there were SMS consultants who were based in the regions to roll out the software when the SMS business unit won a deal, those consultants continued to report back to the SMS business unit and not to the Regional Manager. For example, there were a few SMS consultants who were based in Victoria because a number of the bigger universities are in that region however, all SMS consultants reported to Liam MacNamara, Consulting Director, who reported to myself.
9. In October 2010, TechnologyOne restructured the incentives for SMS product sales so that the sales team in the regions started to get commission on SMS product deals that were won by my team in their regions.
10. I recall that, for the first few years, this did not change the way that the regions contributed to those SMS product deals. This is because the SMS consultants and pre-sales team members who reported to the SMS business unit continued to run the SMS product sales from engagement through to demonstration with very little involvement, if any, from the regional sales teams and the salaries for these team members continued to be costed to the SMS business unit’s P&L.
11. After 1 October 2016, an additional royalty came out of the SMS business unit’s P&L on a monthly basis for the regional sales teams incentives even though they did not do any of the work to win the SMS product deals. I recall feeling disgruntled by this at the time because my incentive payments were reduced because there was an extra cost running through the SMS business unit’s P&L. This is because my incentive was based on the profit of the SMS business unit.
12. From in or around 2014, the SMS business unit engaged a lot more with the regional sales teams to ensure that they were trained to sell the SMS product and the larger regions now have full time team members who only sell education products.
598 His evidence also included some observations on Mr Roohizadegan’s involvement in SMS deals. He stated that Mr Roohizadegan had played no part in securing a 2009 deal with Victoria TAFE. When Mr Roohizadegan had later become involved, his inappropriate negotiating tactics (writing a number on the back of a piece of paper which he had slid across the table) had lost TechnologyOne an opportunity in 2014 to upsell more software to that client (paragraphs -). He had considered Mr Roohizadegan’s behaviour to have been unprofessional and embarrassing because he “did not understand the product we were selling well enough to effectively engage with the education customers”. He also did not seem to understand that those customers had clear procurement processes they had to follow. He had often hassled them inappropriately (paragraph ).
599 In cross-examination Mr Arnott conceded that the Electronic Contents Management system offered by TechnologyOne was, similarly to SMS, run through the Brisbane head office and not through the regions: and that it had its own profit and loss account in TechnologyOne’s books.
600 He conceded the same was the case with respect to TechnologyOne’s Property and Rating product and its Assets Management System.
601 He accepted that he did not know whether Mr Roohizadegan had been paid an incentive in respect of sales of those products, but conceded:
All our – all regional managers get some incentive in – from the sales of products, but student management wasn’t the case back then – back then as I’ve set out in my affidavit.
602 His evidence was then as follows:
Mr Tracey: So you say that SMS was not like other products because it targeted a particular sector, namely, education; is that your evidence?
Mr Arnott: It targeted a specific area of unique knowledge and skill set that you required. Yes.
Mr Tracey: And in that sense it’s absolutely no different, is it, from property and rating which targeted the unique area of Local Government?
Mr Arnott: There’s a lot of – well, you could say that.
603 However, he resisted accepting that SMS was a competing product with CRM:
Mr Tracey: So Mr Arnott, customer relationship management is another product of TechnologyOne, is that right, known as CRM?
Mr Arnott: Mmm.
Mr Tracey: And you agree that CRM is a competing product with SMS?
Mr Arnott: No.
Mr Tracey: Well, I put it to you it is in that CRM if purchased by a tertiary education institution, that institution would not often need to purchase the SMS product?
Mr Arnott: Incorrect.
Mr Tracey: Because CRM would do things that that institution would need?
Mr Arnott: CRM plays a place in any organisation including the university, but it – it does not – it’s not an SMS. It integrates to a SMS.
Mr Tracey: Well, Mr Davey’s evidence – do you know Nick Davey? He was previous GM for CRM. For CRM. Yes?
Mr Arnott: Yes.
Mr Tracey: His evidence is that CRM was a competing product with SMS?
Mr Arnott: That’s incorrect.
Mr Tracey: I suggest to you that the only thing that seems to make SMS unique, to use your word, is that SMS is larger some other products of TechnologyOne; that’s what you’re saying, isn’t it?
Mr Arnott: No. It takes many years to understand SMS. It takes years to train consultants and sales staff on the solution, so it is different to other solutions. The sheer size of it, the uniqueness of it that is why …
Mr Tracey: Like other products it’s sold throughout all of the geographical regions of TechnologyOne?
Mr Arnott: Correct.
Mr Tracey: Sold to customers that have their head offices in those geographical regions?
Mr Arnott: Sorry, can you repeat that?
Mr Tracey: It’s sold to customers that have their head offices in those geographical regions?
Mr Arnott: Yes. So universities are in different states. Yes.
Mr Tracey: And there’s in fact quite a number of universities in Victoria which are customers of the SMS product?
Mr Arnott: Correct.
604 He conceded that he could not be confident that it had been Mr Roohizadegan’s conduct that had caused TechnologyOne to lose the upgrade deal with Victoria TAFE:
Mr Tracey: I’m asking you to give honest evidence to the court about why you think the deal fell through?
Mr Arnott: I – at the end of the day, they – I mean, the customer goes away and we weren’t explained exactly why we lost the deal, okay. The price …
Mr Tracey: At the end of the day, you have absolutely no idea, do you?
Mr Arnott: Well, the price could be wrong, I’m not sure …
605 In re-examination, Mr Arnott expanded on why SMS was a unique product:
Dr Spry: Now, you were asked some questions about CRM and SMS, and you were saying SMS is unique. Just in relation to CRM, how is SMS different to CRM?
Mr Arnott: So Student Management is a records system for students in the curriculum. It manages the lifecycle of the student. The CRM is a Customer Relationship Management tool, and most universities and TAFEs have those – actually all of them probably do – and they integrate into and SMS. So CRM is more around your marketing, about external engagement which then feed into the SMS.
Dr Spry: And you’ve said SMS was a unique product, how is it unique?
Mr Arnott: It’s unique in the respect that it is – it’s a large product. It – it’s not – there’s five vendors across the globe that actually build the Student Management System. There’s not many that build a Student Management System that’s enterprise level. It – it’s unique in the fact that it’s very large from the first engagement of a student all the way through the lifecycle of that student while they’re at the university. Everything to do with their results, their engagement, their day-to-day assessment is maintained by the student system.
Dr Spry: And where does CRM – you were saying it fits in – how does – or universities can have CRM as well, that product, how does it fit in or relate to SMS?
Mr Arnott: So the CRM will engage if it’s doing any marketing around alumni or engagements with prospective students or items like that and typically run by the marketing teams within universities or TAFEs. That information is fed back into the student system once that student maybe applies, enrols into the university or TAFE and then Student Management System looks after it from that point.
606 I then permitted Mr Tracey to further cross-examine regarding that evidence. It is not necessary to set out the quite lengthy discussion that followed. While initially resistant, Mr Arnott ultimately conceded that TechnologyOne’s CRM product could be used as an alternative to its SMS product in order to manage alumni (T937, lines 31-34).
607 The Applicant submits that:
7.47. … Mr Arnott initially denied that Customer Relationship Management (CRM), a product for which Mr Roohizadegan received incentive payments, was a competing product of SMS (T929 at 30 to 44). However, during re-examination Mr Arnott agreed that CRM could be used for alumni of tertiary institutions (T934 at 18 to 20). Notwithstanding this, Mr Arnott repeatedly failed to admit to the Court, in further cross-examination, that CRM and SMS were competing products for, at the very least, alumni of tertiary institutions (T935 at 4 to 47; T936 ay 1 to 46; T937 at 1 to 32). Accordingly, the Court should take the view that Mr Arnott was an unsatisfactory witness and that he was unreliable.
7.48. In so far as the Respondents rely upon Mr Arnott to assist them in their defence to the contract case, the Court should give his evidence little weight. He could not even accept simple and what should have been uncontroversial propositions that were put to him. This makes him very unreliable and unconvincing as a witness.
608 The Respondents advance no submissions with respect to the credit of Mr Arnott.
609 The impression I formed of Mr Arnott was that he was - understandably - genuinely very proud of TechnologyOne’s SMS product. As a result however he appeared very reluctant to accept that from a commercial perspective, notwithstanding SMS’s many virtues, it was just another product offered by TechnologyOne in the marketplace. Only after extensive pressure in cross-examination did he accept that “[t]he CRM product of TechnologyOne can be used as an alternative to the SMS product of TechnologyOne in order to manage [alumni]” (T937, lines 32-34).
610 His evidence that SMS was different from other products offered by TechnologyOne because it was run out of Brisbane and had its own profit and loss account did not survive cross-examination.
611 With respect to his allegation regarding Mr Roohizadegan’s responsibility for losing a sale prospect, I accept Mr Arnott’s evidence that he had been unimpressed by Mr Roohizadegan pushing a note with a figure on it across the table to his negotiating counterpart. I infer that Mr Arnott had thought that to be crass. I note however that Mr Arnott ultimately conceded that the software’s price, rather than the manner of the conveyance of that price to the client, may well have been the decisive factor in that particular sale not being made.
612 Mr Arnott had good reason not to have welcomed Mr Roohizadegan’s involvement in SMS. Mr Arnott’s evidence-in-chief was that once TechnologyOne had changed the way SMS was sold in the regions, his own remuneration had gone down because his incentive payments had been reduced in light of the extra cost running through the SMS business unit’s profit and loss accounts. He had felt disgruntled about regional managers such as Mr Roohizadegan, lacking entirely any of the detailed knowledge of the SMS product he had devoted himself to acquiring, henceforth getting a share of the profits as were the basis of his incentive payments.
613 With that in mind, I reject that I should draw an adverse conclusion about Mr Roohizadegan in respect of Mr Arnott’s evidence that in many instances he hassled customers by calling them to follow up negotiations. Such pushiness may well have been regarded by Mr Arnott as “unprofessional and embarrassing”. However, from the beginning it had been part of Mr Roohizadegan’s job to sell TechnologyOne’s products to educational establishments. The evidence in these proceedings confirms that Mr Roohizadegan well knew how to do that.
614 For those reasons, while I reject that Mr Arnott was in any respect dishonest I accept Mr Tracey’s submission that at least in those regards the Court should find him to have been an unreliable and unconvincing witness.
615 Mr Pye gave his evidence-in-chief by way of a partially redacted affidavit (Ex R59, CB400-408). His evidence was that since 22 July 2014 he had been employed with TechnologyOne as its Company Secretary. At the time of Mr Roohizadegan’s dismissal he had also held the position of Operating Officer - Corporate Services. He reported directly to Mr Di Marco. His evidence was that Mr Roohizadegan had mentioned his daughter’s illness to him on approximately three or four occasions and they had discussed the challenges of having a sick daughter. He did not recall Mr Roohizadegan ever having said that his daughter’s illness was impacting on his ability to perform his role.
616 He gave evidence-in-chief regarding certain aspects of the events of 12 May 2016 as follows:
4. The State Managers' meeting takes place once a quarter in Q2, Q3 and Q4 and is across two days. There was a State Managers' meeting on 11 and 12 May 2016 in Brisbane.
5. At the end of the second day of the State Manager's meeting, being 12 May 2016, Stuart MacDonald came into my office and said words to the effect 'I would like you to witness a conversation'. Stuart had started with TechnologyOne in about mid-April 2016 and Behnam reported to him.
6. Stuart then asked Behnam to come into my office.
7. Stuart said to Behnam words to the effect 'I want to go over the discussion we had earlier today about La Trobe. Did I or did I not ask you to not negotiate with La Trobe, and if you needed to speak to them, to come and speak to me before going back to them?'
8. Behnam responded to Stuart's question with words to the effect 'yes you did and I have not negotiated with La Trobe'.
9. Stuart then responded with words to the effect 'Let me read to you this email you sent' and Stuart proceeded to read a part of an email that Behnam had sent at 14:50 on 12 May 2016. I particularly recall Stuart repeated the following part of the email 'and I have got him back to a more reasonable number of $1 million over 5 years'. Attached and marked 'GP-1' is a copy of the 12 May 2016 email from Behnam to Adrian and copied to me and Stuart, about La Trobe University's discount request.
10. Stuart then said words to the effect 'the way I interpret this is that you have negotiated with the customer'. Behnam responded again that he did not negotiate with La Trobe.
11. Stuart reread the email from Behnam and then asked 'does it sound like you are negotiating?'.
12. Behnam responded with words to the effect 'No, he asked for that, I said I would need to get approval, I did not negotiate as you requested'.
13. I saw that Stuart was getting frustrated by Behnam's unwillingness to acknowledge that he had engaged in negotiations with La Trobe University against Stuart's instructions. Stuart said words to the effect 'for fucks sake Behnam'. In my view, Stuart did not swear at Behnam, but rather at the situation. The meeting was heated but in my opinion Stuart was not bullying Behnam.
14. Stuart and Behnam were loud during the discussion and those in close proximity would have heard at least raised voices. I suggested to both parties that we keep the conversation civil and calm.
15. This interaction went on for about 5 minutes, during which time they continued to go over the same ground. My observation was that Behnam was angry with Stuart. Behnam said words to the effect to Stuart of 'I do not appreciate this discussion, I do not appreciate you swearing at me, I did not negotiate with the customer. I did what you asked'.
16. Stuart responded with words to the effect, 'yes I did swear, but not at you'.
17. Behnam then left the office to catch a plane to Melbourne. I recall that Behnam was visibly angry when he left Stuart's office.
617 Mr Di Marco had asked him what had happened, and he provided an overview of those events by way of an email on 16 May 2016 (Ex R60, CB6671).
618 Mr Pye gave extensive evidence-in-chief in his affidavit (paragraph ) as to the detailed attention Mr Roohizadegan gave to the Victorian region’s profit and loss statements. I do not take the detail of that evidence to be material to these proceedings, but the thrust of that aspect of his evidence was that Mr Roohizadegan had always been astute to question those statements if he had thought there was an error in the attribution of costs and if he considered that he in any way was missing out.
619 Mr Pye’s evidence is that he had been responsible for preparing Mr Roohizadegan’s termination package. He had not been involved in the drafting of the communications plan. He had prepared options for Mr Di Marco and Mr Chung to choose between as to what might be offered by way of a draft deed of release. The arrangements for share options were very different in respect of what might be offered. I infer that those different options had allowed the company, should it have so decided, to provide more value to Mr Roohizadegan on termination (paragraph ).
620 His evidence as to Mr Roohizadegan’s seeking to be paid an incentive on sales of SMS in Victoria was as follows:
29. Prior to 1 October 2010, Student Management Services (SMS) were set up as an independent business unit and were separate from the State based regions because SMS did not form part of regional budgets and it did not go through the regions.
30. On 8 April 2011, Behnam and I had a telephone conversation in which Behnam raised the fact that he was not happy with only receiving 10% of the SMS revenue generated in Victoria. Behnam was the only Regional Manager who had benefited from a SMS licence fee prior to 1 October 2010 with the agreed 10% and any changes to this would need to be approved by Adrian. Behnam requested a copy of the commission policy for Regional Managers but I reiterated that the policy did not have this detail. Behnam knew, based on the conversations I had with him, and no doubt he had with Edward and Adrian that the 10% allocation for the Victoria TAFE SMS deal was a special arrangement for him that applied prior to 1 October 2010 and therefore would continue for the life of the licence.
31. I do not recall having any conversation with Behnam on l6 January 2014 about SMS incentives.
33. While Behnam queried his incentive payments regularly, I do not recall him ever saying to me that he thought he was contractually entitled to SMS incentives prior to 1 October 2010.
621 In oral evidence-in-chief Mr Pye stated that he had been a member of the Executive Team. He had not attended the meeting on 26 April 2016, but he had been present at an impromptu meeting of the Executive Team that Mr Di Marco had called around a week before Mr Roohizadegan had been dismissed:
Dr Spry: And who was at the meeting?
Mr Pye: Mr Adrian, Ed – Edward Chung, Stuart MacDonald, Martin Harwood and myself.
Dr Spry: And what did – the meeting was called by Mr Di Marco, did you say?
Mr Pye: Yes.
Dr Spry: And did he say what the purpose of the meeting was?
Mr Pye: Only when we were in there.
Dr Spry: Yes?
Mr Pye: So when we were in there he said it’s – as part of the termination with Benham, he wanted to ask everyone in the room if there was any reason why he should not terminate Benham. So he asked how it would impact the Victorian region, how it would impact the company, were there any things that we should consider and he asked us the upcoming La Trobe – the La Trobe deal, what would we do to ensure that we were able to close that opportunity as well.
622 He had also met with Mr Di Marco and Mr Chung on the morning of 18 May 2016 to review the termination package he had finalised. It had been approved. It had been a very quick meeting.
623 In cross-examination, Mr Pye accepted that during the discussion with Mr MacDonald which he had witnessed Mr Roohizadegan had said he had not agreed to or given any discount to La Trobe.
624 He gave the following evidence:
Mr Tracey: And he [Mr Roohizadegan] also said “I actually” addressing Stuart he said:
I actually approached you and I said, “Peter Nikoletatos wants to talk with us at 2 o’clock and you just told me to screw you and you left.”
That’s what he said to Stuart, isn’t it?
Mr Pye: I don’t recall.
Mr Tracey: Possibly he said that?
Mr Pye: Don’t know.
Mr Tracey: Well, you were there. Is it possible Benham said those words?
Mr Pye: Could have been.
Mr Tracey: And then he also said, “It’s because you” – as in addressing you again:
It’s because you, by going and seeing them, that is La Trobe, on 6 May, the week before, that’s why we are in this position.
Benham said words to that effect to Stuart?
Mr Pye: Yes.
Mr Tracey: And that made Stuart pretty angry, didn’t it?
Mr Pye: Stuart was already angry.
Mr Tracey: He’s already angry. And so that point he said:
Fuck you, Benham. You don’t get it. You don’t understand.
Is that what he said, isn’t it?
Mr Pye: No.
625 Mr Pye accepted that Mr Roohizadegan had said to Mr MacDonald that he had very clearly told Mr Nikoletatos that he had no authority to give a discount. He further accepted that Mr Roohizadegan had also claimed that Mr MacDonald had never told him not to negotiate (T1008, lines 6-12). However, in re-examination Mr Pye clarified that only the first of those things had been said. His recall of what Mr Roohizadegan had said in response was “Stuart, you asked me not to negotiate. I have not negotiated with La Trobe” (T1020, lines 32-33).
626 Mr Pye later gave the following evidence:
Mr Tracey: And then Stuart said in response, “Why did” – addressing Behnam, “Why did you send that email to Adrian?” That’s what Stuart said?
Mr Pye: Don’t recall.
Mr Tracey: Possibly he said that?
Mr Pye: Don’t know.
Mr Tracey: I’m sorry?
Mr Pye: I don’t know. Yes, I can’t recall.
Mr Tracey: Well, therefore, it is possible?
Mr Pye: It is possible.
Mr Tracey: And then Behnam said, “This is the biggest deal” – or words to this effect: “This is the biggest deal for the company we’ve ever done, $23 million, and Adrian wanted to be across it. Adrian has said to me during the last few weeks and including at that time, ‘I want the deal closed’, so Adrian needs to be across it”. That’s what Behnam then said?
Mr Pye: Yes.
Mr Tracey: And then Stuart replies, “You don’t get it. Fuck you, Behnam. You don’t get it. You don’t get it”. That’s what he said, isn’t it?
Mr Pye: No.
627 Mr Pye then answered a number of questions put to him by Mr Tracey to the effect that Mr MacDonald had not sworn at Mr Roohizadegan during that discussion. Taken by Mr Tracey to a passage in his affidavit, he gave the following evidence:
Mr Tracey: Well, perhaps – would you be assisted by looking at paragraph 13 of your affidavit. That’s – if you could be taken to volume 1 of the court book, please, at page 403. You say, in the middle of paragraph 13:
Stuart said words to the effect, “For fucks sake, Behnam.”
Then you say:
In my view, Stuart did not swear at Behnam but rather at the situation.
Surely you agree with me that that’s – that’s just not a case of swearing at the situation. It’s a case of swearing at Behnam?
Mr Pye: No.
Mr Tracey: Well, I suggest that – that you’re putting it that way, namely that swearing at the situation, as a way of trying to downplay the gravity of the way Stuart was behaving?
Mr Pye: No.
Mr Tracey: And that’s why you also volunteer at the end of 13 that Stuart was not bullying Behnam. That’s right, isn’t it? Behnam didn’t swear once during that meeting, did he?
Mr Pye: Correct. He didn’t.
Mr Tracey: And Behnam is not the kind of person, in your experience, who would receive that kind of yelling and swearing well, would he?
Mr Pye: Don’t know. Don’t know. Yes.
Mr Tracey: Yes, he would not receive it well? No? I suggest to you that what you’re trying to paint in your affidavit, Mr Pye, is a picture of two equals having a heated discussion when, in fact, it was very much a case of Mr MacDonald bullying Behnam?
Mr Pye: No.
628 Mr Pye was then cross-examined as to his statement in his affidavit (at paragraph ) that when Mr Roohizadegan had asked for a copy of TechnologyOne’s commission policy for regional managers for SMS, he had reiterated that the policy did not have that detail.
629 Mr Tracey asked Mr Pye where one could have found the detail of or the policy about the percentages of revenue sharing between business units. His answer was: “There wasn’t a policy then. There is no policy on that” (T1012, lines 18-19). His evidence continued:
Mr Tracey: And what is it – what is the policy that refers to royalties at this time?
Mr Pye: Would have been the royalty rules.
Mr Tracey: Right. Where do you find the royalty rules?
Mr Pye: They were published with the budget and were available for access.
Mr Tracey: So let’s just break that down. They were published with the budget. Where do – where would an employee of Technology One access the budget?
Mr Pye: He can – in our – in our – in our ERP system.
Mr Tracey: Is your ERP system like an intranet?
Mr Pye: No. It’s our accounting system.
Mr Tracey: An accounting system?
Mr Pye: Yes.
Mr Tracey: And who has access to that within the business?
Mr Pye: The various business unit managers and – would have access to their business unit budget.
Mr Tracey: So these – you refer to royalty rules – are they changed annually?
Mr Pye: They change very rarely.
Mr Tracey: They change very – you say they change very rarely. Are they …?
Mr Pye: They’re …
Mr Tracey: Yes. Are they published annually, though, in the budget?
Mr Pye: They are – they are now, yes.
Mr Tracey: They are now?
Mr Pye: Yes.
Mr Tracey: When did they start getting published annually in the budget?
Mr Pye: I think – I think 12. FY11 or FY12 – around there.
Mr Tracey: So is that why you said in 2011 to Behnam that the policy did not have the detail because it wasn’t then published?
Mr Pye: No. That was the commission policy which is different to the royalty rules.
Mr Tracey: So the royalty rules are a separate document …?
Mr Pye: Yes.
Mr Tracey: … from the commission policy?
Mr Pye: Correct.
630 Mr Pye then conceded that as at 2010 there also was nothing in TechnologyOne’s summary of royalty rules 2010-2018 (Ex A79) specifically dealing with the SMS product (T1014, lines 24-26).
631 In re-examination Mr Pye gave evidence that the information at page 20 of the confidential court book (containing more sensitive information relating to TechnologyOne) was more detailed and correct in respect of TechnologyOne’s royalty rules than was the information in Ex 79. He accepted however that even in that document, SMS was not mentioned. His evidence was that it would not have been appropriate to include it at that time: