Federal Court of Australia

Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407

ORDERS

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.

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

REASONS FOR JUDGMENT

KERR J:

Table of contents

Synopsis of this case

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.

History and background findings: things start well

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 [888] 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 [11] 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.

Mr Roohizadegan suffers personal crisis and ongoing Depression

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.

TechnologyOne remains unaware of the extent of Mr Roohizadegan’s distress

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 [40]-[45]). 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 [302]-[331].

Mr Roohizadegan’s performance at work does not materially decline notwithstanding his (later diagnosed) depressive disorder

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, [10]).

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.

The core of Mr Roohizadegan’s dismissal case

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:

340 Protection

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

(a)     because the other person:

(i)     has a workplace right; or

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

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

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

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

(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) [2014] FCA 271 at [640].

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 [2020] FCAFC 15 at [19]-[20]:

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.

The statutory presumption and the Respondents’ case

63    The terms of s 361 of the Fair Work act are as follows:

361    Reason for action to be presumed unless proved otherwise

  (1)     If:

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

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

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

(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 [2012] HCA 32; 248 CLR 500 (Barclay) at [50] 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 [2020] FCA 893 per Banks-Smith J at [12].

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 [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 (BHP Coal) at [7] (French CJ and Kiefel J), [85] (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 [56] per French CJ and Crennan J, citing Gibbs J in Bowling at 239.

72    In State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441 at [32], 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 [93] 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 [2018] FCAFC 83; 261 FCR 347 a Full Court of this Court held at [100]:

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 [62] (French CJ and Crennan J) and [104] (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.

Dramatis personae

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:

Chronology

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.

The evidence and the credit of the principal witnesses

Principles applied

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.

Benham Roohizadegan

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 [24]-[45] 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 [176]-[181], I identify nothing of significance in Mr Roohizadegan’s responses in cross-examination that would add to the picture to which I have referred above.

Applicant’s submissions

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).

Respondents’ submissions

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).

Consideration

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.

(Footnote omitted).

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 [31] 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.

Adrian Di Marco

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 [7]):

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.

(Emphasis added).

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.

Applicant’s submissions

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.

Respondents’ submissions

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.

Consideration

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 [77] 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.

(Emphasis added).

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).

(Emphasis added).

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 [214].

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):