What follows is a very (yes, very) lengthy extract from a judgement of the Federal Court dealing with a claim under the general protections alleging inter alia multiple instances of adverse action. The reasons for decision published here are only a portion of the court’s published reasons and when read should be understood as such. I have endeavoured to extract the section of the judgement which best deals with the legal rather than factual issues.
“16.1 Termination adverse action claims: The right to make complaints
633 Once each of Behnam’s allegations is established by Behnam’s evidence as an objective fact, Technology One carries the onus at s 361 to discharge the statutory presumption that arises that it took the action of terminating his employment for one or more of the grounds that Behnam alleges and has objectively established. That is because he had and exercised his workplace rights to make complaints, that he had a leave workplace right (or to prevent its exercise), his temporary absence from work due to illness or injury, his physical or mental disability or the proposed exercise of the right to bring a legal proceeding under a workplace law. I put aside for the moment the distinctly different safety net contractual entitlement which is logically addressed after resolution of his contract claim. There are multiple issues to resolve.
634 The Full Court very helpfully summarised the principles that apply in Alam v National Australia Bank Ltd [2021] FCAFC 178; (2021) 288 FCR 301 at [14] (White, O’Callaghan and Colvin JJ):
Several matters bearing upon the application of s 361 in relation to s 340 are settled:
(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];
(b) the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 63; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];
(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ);
(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];
(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];
(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
(g) the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Gold at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; Technology One Ltd v Roohizadegan [2021] FCAFC 137 at [105]-[106];
(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Territory Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, (2020) 274 FCR 225 at [154] (Snaden J);
(i) the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and
(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).
16.1.1 Who made the termination decision?
635 The overwhelming evidence is that Adrian Di Marco is the person who made the termination decision and, despite the management hierarchy, was the only person with authority to terminate Behnam. By the point of closing submissions, Mr Hyde Page accepted that and amended the applicant’s reply pleading accordingly (T 2021).
636 I do not engage in unnecessary fact-finding by referencing the evidence on this issue, but there is some evidence that is relevant to my overall assessment of Adrian Di Marco and which is one of the reasons why I have accepted his reasons for the termination decision. His evidence-in-chief when addressing the Rebecca Gibbons Email was (CB 2797):
Up until this point, I had been in Mr Roohizadegan’s corner. For so long as I was a supporter of Mr Roohizadegan, his position in the business was secure no matter what anyone else said or thought. But now that he no longer had my confidence, for the reasons set out above, he had to go.
637 This evidence was not traversed in cross-examination.
16.1.2 When was the termination decision made?
638 It follows from my extensive findings in Part 15.14 that Adrian Di Marco made the decision between receipt of the Rebecca Gibbons Email on 25 April 2016 and conclusion of the meeting with the senior executives on 26 April 2016. Certainly, Adrian Di Marco communicated his decision at the meeting. He delayed implementing it until he could be confident that terminating Behnam would not imperil the La Trobe University deal.
639 This notwithstanding, Mr Hyde Page submits that though the termination decision may have been made on 26 April 2016, it was affirmed and confirmed thereafter, and it would have been “possible” for complaints thereafter to have contributed to the decision (T 1933). That submission was taken further: Adrian Di Marco “may well have … considered changing his mind” (T 1934). By the last submission I was invited to consider all of Adrian Di Marco’s subjective reasons prior to the termination meeting on 18 May 2016.
640 I reject those submissions. The pleaded adverse action case is that Technology One breached s 340(1)(a)(ii) by dismissing Behnam because he exercised one or more of the complaint workplace rights pleaded at [64] of the Further Amended Retrial Statement of Claim. The taking of adverse action for the purposes of that provision is, relevantly, dismissing an employee: s 342(1). The statutory presumption at s 361 applies to an allegation that a person took action for a particular reason or with a particular intent and if taking that action would constitute a contravention. As is well understood and summarised by French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [5]:
The task of a court in a proceeding alleging contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.
641 The reasons for taking the action of terminating Behnam’s employment pre-date the fact of termination on 18 May 2016. The termination decision was made and communicated by the close of the 26 April 2016 meeting. It was not put to Adrian Di Marco in cross-examination that he was prepared to change his mind thereafter and which, in any event, cannot be reconciled with his firm statement at the meeting on 26 April that: “Behnam has to go”. Whilst Adrian Di Marco did raise at the executive meeting on 3 May 2016 how Behnam’s termination could be best managed, and in that context whether he could be given an alternative role where he was not required to work with other employees, that is hardly evidence that Adrian Di Marco then considered reversing his termination decision. In addition, there was some cross-examination by reference to what Adrian Di Marco had said in the first trial on 17 October 2019, when he was taken to his evidence that although the decision to terminate Behnam had been made he still “had a soft spot” for him and “I just wanted one last chance just to make sure we have not overlooked something, or there was an alternative for Behnam, another place” (T 1768). In this trial, when Adrian Di Marco was asked about his earlier evidence, he could not even recall the meeting referred to. The questions were not taken further. The context for this answer was not exposed, for example, by producing earlier or later pages from the transcript at the first trial. This submission is speculative.
642 Moreover, this is not how the case was pleaded, opened on or conducted where the focus was always on the contention that the termination decision was made for prohibited reasons. Technology One was not required to answer a case that, having made the decision to terminate, it was not thereafter revised because prohibited reasons were considered.
16.1.3 Did any person materially influence the termination decision?
643 Behnam’s case as finally refined maintains that one or more of Martin Harwood, Stuart MacDonald, Kathryn Carr or Rebecca Gibbons materially influenced the decision to terminate his employment. That pleading is at large for each individual, save for Stuart MacDonald, where the contention is that his prohibited reasons were limited to the 13, 20 and 25 April 2016 complaints to him, the 25 April 2016 complaint to Adrian Di Marco, the 13 May 2016 complaints to Edward Chung and Adrian Di Marco and the 15 May 2016 complaint to Adrian Di Marco. I have left one out of the pleaded list, being the 20 April 2016 verbal complaint to Rebecca Gibbons, as I have not found it to have been made out.
644 This rolled up plea opens a very large field of inquiry about whether each of these individuals did materially influence Adrian Di Marco to make the termination decision, and then if so whether at the time they subjectively did so for one or more of the pleaded complaints or conduct (amounting to the prohibited reasons).
645 Technology One makes the, necessarily formal, submission that I should adopt the approach of Snaden J in Wong v National Australia Bank Ltd [2021] FCA 671 at [84]-[96] and Serpanos v Commonwealth [2022] FCA 1226 at [112] and [122]. That is, as summarised by his Honour in Serpanos at [122]:
The search for the reasons animating particular conduct—especially corporate conduct—is (or can be) notoriously difficult. Nonetheless, adverse action inures in conduct—in acts or omissions—in which natural persons engage; and a person (or group of people) can engage in conduct (and, thereby, visit adverse action) because of a reason proscribed by s 340(1) of the FW Act only if that reason operates upon the state of mind with which that person (or group of people) engages in that conduct.
646 However, as his Honour immediately acknowledged at [123]:
But that is not the law as it currently stands. The case law emerging from this court, even after Barclay, BHP Coal, Endeavour Coal and Hall leaves no room for doubt: in assessing the reasons for which conduct amounting to adverse action was engaged in, the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level. That threshold level has been described as “indispensable” (Kodak), “material” (Clermont Coal, Qantas) and “‘significant’, ‘plainly important’, ‘major’, ‘substantial’ or ‘essential’” (Wong).
647 Like Snaden J, I am bound to follow the law as determined by the Full Court in a number of decisions, including the appeal in Wong, Wong v National Australia Bank Ltd [2022] FCAFC 155; (2022) 318 IR 148 at [25]-[26] where Katzmann, Charlesworth and O’Sullivan JJ observed:
As the decisions in Wood, Voigtsberger and Roberts demonstrate, the word “because” as it appears in s 340 of the FW Act directs attention to the reason for an action, which is to be found in the state of mind of the person alleged to have taken the adverse action. Where (as here) that person is a corporate entity, it will in all cases be necessary to examine the state of mind of the human actor or actors who (alone or together) caused the corporation to take the action that it did or, to adopt a phrase from Wood, who “played the decision-making part in the joint administrative activities” culminating in the actual act that constitutes the adverse action. It may be convenient to refer to the person whose conduct directly visited the adverse action on the employee as the “decision-maker” but his or her decision-making process may incorporate the state of mind of other people, including by adopting facts or opinions asserted by them.
The authorities show that in asking whether an adverse action was taken by a corporate entity, the Court should remain alert to the possibility that the answer may reside in the mind of more than one natural person. The state of mind of the human actor who said or did the thing that bound the corporation to the action will of course be important, and in many cases determinative. However, the cases illustrate that a person who does the act or thing constituting the adverse action may act on information or advice the provision or content of which is actuated by a prohibited reason. The adoption of such information or advice may necessitate the conclusion that the corporation’s reasons for the adverse action include that prohibited reason. In such cases, it matters not that the person providing the information and advice does not formally possess the authority or power to effect the decision based on the information and advice. Whether the person performing the act constituting the adverse action is aware that he or she is acting on information or advice given for a prohibited reason may not be relevant in cases of that kind.
648 Adrian Di Marco’s evidence was that he had been informed by Martin Harwood that he did not believe that Behnam could lead the Victorian region into the future which in turn caused him to believe that Behnam “was not showing the leadership needed as he seemed not to be taking responsibility and would blame others for problems with performance in the Victorian region” (CB 2793). Further, that he believed the content of the Rebecca Gibbons Email as accurate and considered it the “final straw” (CB 2793, 2796) and when he communicated his decision that Behnam had to go at the meeting of 26 April 2016, his recollection was that none of the other attendees spoke against his decision.
649 On that evidence, I find that, at least in part, Adrian Di Marco’s decision was influenced by Martin Harwood, Rebecca Gibbons and each of the additional attendees at the meeting being Edward Chung and Stuart MacDonald. A more difficult question is the threshold of influence, summarised by Snaden J in Wong as within the range from essential or indispensable to material. This is not the occasion to spend more time in what is already a long judgment in analysing which is the correct adjective. I will assume favourably to the applicant’s case that no more is required than a threshold of materiality.
650 Which leads to determination whether there was material influence.
651 There is plenty of evidence that Martin Harwood considered that Behnam should be terminated and communicated that opinion to Adrian Di Marco more than once. His evidence-in-chief as to his reasons was extensive. As early as 2014 he had concluded Behnam was not the right leader to take the Victorian region forward (CB 3049). He concluded Behnam was not a team player and he lacked the skills to build and lead the sales team. He did not then move to have Behnam terminated because of Adrian Di Marco’s protective view of Behnam (CB 3049). In the written closing submissions of Technology One at [738] there is a detailed chronology of adverse assessments of Behnam made by Martin Harwood between late 2014 and 21 April 2016, where the correct submission is made that none of that evidence (largely documentary) was challenged. None of it included a consideration of any of the prohibited reasons on which Behnam relies.
652 Martin Harwood refuted each allegation of Behnam that he was of the opinion that he should be terminated, for reasons which included any of the pleaded prohibited reasons: For example, CB 3049 [249]-[252], 3063 [317], 3070 [335]-[336], 3072 [346]-[351], 3074 [353], 3081 [377], [379], 3088 [403], 3089, 3103 [452], 3110 [480], 3116 [494], 3120 [501], 3123 [507], 3130 [529], 3142 [565], 3162 [628]. This evidence was not directly challenged in cross-examination. His evidence was convincing, and I accept it.
653 Furthermore, Adrian Di Marco in re-examination said that, despite Martin Harwood’s view, he procrastinated (T 1776):
I should have done it when Martin suggested it, or offered it. I should have backed Martin. Martin is a mature, highly trained executive and I overrode him, and I didn’t do the right thing by Martin. You know, I didn’t do the right thing. I – I overrode Martin and – and I knew I was overriding him, and I knew I hadn’t done the right thing by him and I – and I respect Martin because he – he didn’t argue. He accepted my call and he let it pass to me and he wore the brunt of my decision. The decision I made, he had to live with and he had to wear the brunt of it, and now the company has worn the brunt of it. So I made a bad decision. I overrode an operating officer and I never should have done that.
654 I accept that evidence. I conclude that Martin Harwood did not materially influence Adrian Di Marco to make the termination decision for any of the prohibited reasons that Behnam identifies.
655 It was pleaded that Edward Chung was a material influence, but this was abandoned in the Amended Reply; doubtless because his evidence-in-chief, to the effect that he considered Behnam an unsuitable regional manager for perfectly valid reasons, was not challenged.
656 Rebecca Gibbons’ email was a material influence on Adrian Di Marco’s decision. The attack on her credibility, motivation and the accuracy of her account utterly failed. She was not motivated to author the email by any of the contended prohibited reasons.
657 As to Kathryn Carr, she gave clear evidence in cross-examination that she never expressed the view that Behnam should be terminated (T 1323). Her evidence was convincing, and I accept it.
658 Finally, there is the Stuart MacDonald material influence contention. Stuart MacDonald accepted in cross-examination that during the meeting of 26 April 2016, he expressed the view that he could not work with Behnam, which view was also held by Martin Harwood (T 1212). He denied that this view was related to the Bass Coast Shire presentation or Byron Collins issues, but he did accept that they were “subcomponents” (T 1213). The question which produced that answer was quite general in that it did not focus on the pleaded case: that is the making of a complaint about these issues, rather than the underlying behaviour of Behnam being his inability to accept decision-making by a more senior manager, which I have dealt with extensively above. When pressed further as to that answer he emphatically denied that Behnam’s complaint about the Bass Coast Shire presentation influenced his view (T 1213) and similarly denied the Byron Collins incident (T 1215). In re-examination, he explained that his concern was that Behnam was a micromanager; not that he should be terminated because of his right to escalate complaints (T 1264, 1267). I accept that evidence and it follows that Stuart MacDonald’s view was not influenced by one or more of the prohibited reason contentions.
659 Accordingly, I conclude that to the extent that Martin Harwood, Stuart MacDonald, Kathryn Carr and/or Rebecca Gibbons did materially influence the decision-making of Adrian Di Marco to terminate Behnam’s employment, none of them did so for one or more of the pleaded prohibited reasons.
16.1.4 Adrian Di Marco’s reasons for the termination decision
660 In Part 15.14.1 I have set out some of Adrian Di Marco’s evidence as to why he made the termination decision following receipt of the Rebecca Gibbons Email, which decision he communicated at the meeting of 26 April 2016. In summary, the email was “decisive” as evidence of behaviour on the part of Behnam. When permitted to elaborate, Adrian Di Marco’s evidence was to the effect that he had no difficulty with the fact that Behnam would escalate various matters by way of complaint to him, but what did concern him was the underlying behaviour that Behnam could not work with his peers, that as a senior executive he should be able to sort out issues in the Victorian region that arose on a day-to-day basis himself, a lack of collaboration with his team members, there was a team crisis in Victoria and of which many members were a flight risk. Behnam was not exhibiting the leadership skills required of a senior executive on a salary package of approximately $1 million per annum. The Rebecca Gibbons Email was “the last straw” in Adrian Di Marco’s thinking.
661 I now address this evidence in more detail.
662 Prior to receipt of the Rebecca Gibbons Email, Adrian Di Marco’s evidence-in-chief was that he “had been losing confidence in Mr Roohizadegan” because of concerns with his performance, for the following reasons (CB 2792).
663 First, in his view, Behnam was not meeting the licence fee growth expectations for the Victorian region. This was a “major concern” for him, as licence fee growth is critical to the success of Technology One. The goal of Technology One was to consistently deliver to their investors a 10% to 15% annual profit growth. To achieve this, the focus was on licence fee growth and Adrian Di Marco required the sales teams to grow licence fees by 10% to 15% each year. To deliver this growth, he expected the senior staff to work hard and deliver the results. He described licence fee growth as “the magic that made our business successful”, as it would also result in increased consulting and annual support fees and increased profits. He expected all his regional managers, including Behnam, to grow licence fee sales in their region.
664 Until the 2012 to 2013 financial year, Behnam delivered the licence fee growth he expected. In Victoria, there was no licence fee growth in the 2013 to 2014 financial year. In the 2014 to 2015 financial year, Victoria “went backwards”. In the first half of the 2015 to 2016 financial year (being the period of 1 October to 31 March) in the Victorian region the total sales were down by 41% compared to the first half of the previous year. It was of significant concern to Adrian Di Marco that Victoria was in a period of non-growth. Accordingly, he was losing faith in Behnam’s ability to grow the business in Victoria. As a result, he was concerned that Behnam was not the right person to consistently deliver strong licence fee growth in Victoria going forward.
665 Second, there were staffing issues in Victoria which he believed were impacting the regions’ ability to deliver licence fee growth. He gave an example of an email he sent to Behnam and Martin Harwood on 26 June 2015 (CB 6513), in which he said the following:
Guys ..this revolving door in Vic has got to stop. It is now at a point where I have recruiters telling me they will not put good sales staff up to us in Vic…
The past is the past, so lets draw a line, but it has to stop.
a> recruit the best
b> support them
c> stop the reputationa (sic) damage
Martin I am holding you accountable to stop this
666 Adrian Di Marco also received feedback about Behnam in relation to recruiting new staff. He provided two examples. The first example was an email sent to him on 1 August 2014 (CB 6082) about recruitment issues in Victoria. The second, an email Adrian Di Marco sent on 17 June 2015 (CB 6455) in relation to the negative feedback Technology One received from a female job applicant, concerning inappropriate statements made by Behnam.
667 Third, Martin Harwood told him that he did not believe Behnam could lead the Victorian region in the future, on multiple occasions. An example is an email of 21 January 2016 (CB 2835-2836), which I have set out above in Part 15.5, where Martin Harwood noted the lack of growth in Victoria and was explicit in his assessment that Behnam was not delivering and would not accept responsibility for the poor performance.
668 By that time Adrian Di Marco stated that he was that he was coming around to the view that Behnam was not showing the leadership needed, as he did not take responsibility and would blame others for the performance of the Victorian region. He wanted Martin Harwood to mentor and help Behnam, but it was becoming apparent that they were not working well together.
669 Another issue, which applied to the whole business and not just the Victorian region, was that Technology One was receiving negative feedback in online forms about whether it was a good business to work for. He was quite concerned about this issue and became proactive in trying to manage it. Whilst he believed it was only a small minority using the online forums to “attack” Technology One, he found it hard to read because it did not represent what he believed to be the Technology One culture. He wanted Technology One to have a reputation as a good place to work and it highlighted to him the importance of ensuring the staff had a positive work environment.
670 He explained that in light of these concerns, the Rebecca Gibbons Email was the final straw when it came to Behnam’s future with the company.
671 In cross-examination, Adrian Di Marco maintained his evidence regarding the reasons for Behnam’s termination. He confirmed that the Rebecca Gibbons Email “was important” in his decision to terminate Behnam (T 1625).
672 Many other reasons for Behnam’s termination were put to Adrian Di Marco during cross-examination.
673 He confirmed that the 13 April 2016 complaint and the 25 April 2016 complaint did not play any part in his decision to terminate Behnam (T 1630, 1631). He confirmed that things going “pear shaped” between Behnam and Stuart MacDonald did not inform his decision (T 1645).
674 Adrian Di Marco was asked a series of questions, though not in sequential order, about the possibility of Behnam’s remuneration being a reason for his termination. He was asked whether, at any time prior to terminating Behnam, he considered whether Technology One would save money by terminating Behnam, which he denied (T 1648). He confirmed that he had no concern about how much money Behnam was making, and that the amount of money was no part of his motivation in terminating Behnam (T 1645). It was put to Adrian Di Marco that as Technology One grew as a business, Behnam’s incentive arrangements which were uncapped, had the potential to produce “strange outcomes”, which he denied (T 1649-1650):
It’s correct, isn’t it, that in late 2014, you came under quite a bit of criticism for Technology One’s arrangements for remunerating senior staff?—I don’t remember which year, but there were many years I got criticised for that, yes.
If it’s possible, please, to go to document 265 of the court book, page 6354?—Three-six-five-four.
- The court officer will bring it up for you, Mr Di Marco?—Thank you.
Mr Di Marco, would you like to see the preceding email that gives some context to this email that you see in front of you?—I would just like to read that closely. Thank you, yes. I see that.
Do you recall learning at about – – -?—Sorry, is there a page before that you mentioned?
We can look at it if you would like the context?—Yes, please. I would like to, yes.
Court officer, it’s possible to scroll down, please, and scroll down to the next page, please, which is 6355.
MR WOOD: I think you have to go further down to see the first one.
THE WITNESS: Thank you for that. So if you can scroll back up – now I can see that, just scroll back up so I can see the prior one. Sorry, a bit slowly. That’s good.
MR HYDE PAGE : So you’re now looking at page 6355, having previously looked at page 6356?—Yes. Yes, I can see all that. Thank you.
Now that you have seen the context for that email, do you recall learning in – at some point in March 2015, or shortly before that, that Technology One was the only person that provided uncapped incentives for somebody in Mr Roohizadegan’s position?—I’m not sure when I found out but I was told, yes, we were – if the only one or one that provided uncapped incentives.
And this didn’t cause you to conclude at some point in the 2015 year that a set of remuneration arrangements for regional managers that had been put in place many years previously had the potential to produce strange outcomes in terms of remuneration now you that were a much bigger company?—No, not at all.
Mr Di Marco, in this proceeding, the court has seen financial modelling which shows that Mr Roohizadegan continued to receive a percentage of the Victorian region’s profits – he was earning seven per cent at the time – while at the same time the
Victorian region grew at 20 per cent per year. The consequence would be that long before Mr Roohizadegan reached retirement, he would be earning incentives of around 4 or 5 million dollars a year. Do you agree that that would be a strange outcome for Mr Roohizadegan as a sales regional manager to be earning 4 or 5 million a year?—Not for me, not at all. I was more than happy to pay. Finding good regional sales managers is almost impossible. If they can grow the business, I’m happy to pay.
And it’s correct, isn’t it, that 4 or 5 million dollars a year is twice what the CEO of Technology One is earning?—I would expect the CEO of Technology One to – today to be earning a lot more than that, because, again, it’s uncapped for him as well. Everyone shares in the growth.
675 He denied that there was a discussion between him and Martin Harwood about cutting costs at Technology One by changing the basis on which the regional managers received incentives (T 1654). He denied asking the accounts department to model the financial savings that would result if Behnam was terminated and replaced with somebody whose incentive rights were calculated on a different basis (T 1654). He denied being told that Technology One could save more than $500,000 in the 2016 financial year by terminating Behnam (T 1655).
676 It was directly put to Adrian Di Marco that he sacked Behnam as a cost cutting measure and that the Rebecca Gibbons Email was “a ruse, a cover story”, to which he responded “No, definitely not.” (T 1662). That answer is consistent with my earlier finding that Rebecca Gibbons was not a co-conspirator in a scheme to mask the true reasons for the termination and her account of her meetings with members of the Victorian team was accurate. Nor was she motivated by malice towards Behnam.
677 The questions then turned to the meeting of 3 May 2016, and whether there was any discussion of the possibility that if Behnam was terminated, he would then commence a legal proceeding. Adrian Di Marco could not recall the discussion, and in any event that was not a matter that concerned him (T 1665-1666).
678 The next series of questions simply confirmed Adrian Di Marco’s earlier evidence that Behnam’s “poor performance on licence fees was a crucial reason” for his termination (T 1676), though he reasonably conceded that one or two poor years would not of itself justify termination before understanding the underlying reasons. He denied that meeting a budget was evidence of satisfactory performance; in his assessment the key metric was achieving licence fee growth (T 1677). He confirmed that in his assessment the Victorian region was entering its third year of stagnation by early 2016. He distinguished between the numbers prepared as part of the “countdown process” and the figure that he would take it to the board, which was between 20% and 30% less. His attention was directed to Martin Harwood’s operating report for sales and marketing prepared for the board meeting on 13 May 2016 (CB 7642). That document noted that in Victoria sales for the first half of the year were down 41% or $2.5 million on the previous year. It included the observation that Victoria:
continues to be below sales headcount which has a direct impact on both revenue and pipeline generation. The other major contributor to the poor result was the fact that this year, the Victoria sales pipeline is skewed to the second half when the business normally delivers most of its license revenue in the first half in previous years.
…
The second half of Victoria will be much stronger than the first half.
…
The major risk I need to manage in Victoria for the second half is the size of the supporting pipeline. We feel confident about most of the deals above but the poor supporting pipeline must be addressed quickly to ensure we have adequate cover should any of these fail to close.
679 The deals referenced included, as the most significant, the La Trobe University deal with an estimated revenue of $2.8 million. Adrian Di Marco said that he did not necessarily regard this assessment as credible in early 2016, and when permitted gave a detailed explanation about the difference between the numbers in that forecast and the reality of delivery, which was ordinarily between 20% and 30% less (T 1681).
680 He later explained why Martin Harwood would not be privy to the forecast figures as adjusted by himself and Edward Chung (T 1686). When it was directly put to him that when terminating Behnam he didn’t have “a genuine concern” about licence fee performance, Adrian Di Marco emphatically answered: “I definitely did. I mean, the numbers speak for themselves” (T 1689).
681 He confirmed his earlier evidence that he decided to implement the termination decision only when he was confident that it would not adversely affect the La Trobe University deal (T 1688). General questions were put to him to the effect that reasons which informed his decision were that there was a bad culture in the Victorian region, which Adrian Di Marco accepted (T 1690). He explained that there were people issues and allegations against Behnam that were of concern to him. He said that prior to receipt of the Rebecca Gibbons Email he already had “compelling reasons” to terminate Behnam, and continued (T 1691-1692):
I had procrastinated, to my detriment, and Rebecca Gibbons’ email, as I’ve said in the past, was the straw that broke the camel’s back. It was very clear I could no longer procrastinate. I needed to make the decision, and whether the bullying allegations were correct or not were irrelevant because I had all the evidence to terminate him, all material, okay, that was there. Investigating the bullying allegations would serve no purpose because if there was proven not to have been bullying, he was still going to be terminated. Okay. It had to be done now. I mean, there was no way I could not proceed because of the evidence I had. I had a team in crisis. I had a team that – one staff member said, “How can Technology One allow this to happen?” I mean, that’s the level of crisis, and the report said I had a team now that was a flight risk. I mean, I had to act. So the allegations of bullying, whether they were true or not, played no part ultimately in that decision, because there was all that material that I had procrastinated on and now I needed to do something about it. That’s the situation. So – and I didn’t want to put the team through any more angst. I mean, this was a team that was already under enormous pressure and angst, and I was concerned about retribution as well, that Behnam may do to the team as well. So there was no point in putting the team under any further angst and possible retribution. I just had to face up that this was a decision now that I needed to make.
682 Next, Adrian Di Marco was questioned whether he believed the allegations in the Rebecca Gibbons Email, which evidence I have addressed in Part 15.14.1. For the present analysis, he was closely questioned about whether he made the termination decision because Behnam was considering a legal proceeding, as stated in the Rebecca Gibbons Email. He said that this did not contribute to his decision and that he would be disappointed but not concerned if Behnam did commence a legal proceeding (T 1703). He maintained that evidence despite what he had said in earlier email correspondence about a possible complaint by a job applicant, concerning how she was treated by a Behnam during an interview (T 1703-1705).
683 The next series of relevant questions probed Adrian Di Marco’s knowledge as to whether he was aware that Behnam was unwell, and certified as medically unfit to attend work, when the termination decision was implemented. Behnam did provide a medical certificate to Technology One by email on 15 May 2016 at 11:21 pm (CB 8507) which certified that he was unfit to attend work until 17 May 2016. Adrian Di Marco could not recall when he became aware of that fact (T 1708), although he accepted that he was one of the recipients to the email. As was his usual practice, he only skim read the email. He could not recall whether he was aware at the time that Behnam was “physically unwell” (T 1714), but later said he “was happy to accept” that was the fact (T 1715). The questions moved to evidence that is relevant to the misrepresentation claim, which I separately address.
684 Returning to the reasons for Behnam’s termination, Adrian Di Marco was taken to a document prepared by Kathryn Carr in September 2015 titled: Draft – Regional Manager exits For discussion (CB 6618). Behnam’s name appears on the exit list. He had no idea what the document was, he did not direct its creation and was not aware of its purpose (T 1722).
685 He was questioned about Behnam’s agitation of unpaid entitlements for SMS revenue from as early as 2010. Adrian Di Marco could not recall but speculated if the matter had been raised: “I would have put him straight because he was not entitled to it, and he would have known he was not entitled to it” (T 1731).
686 Towards the end of the cross-examination, Mr Hyde Page returned to the general topic that the complaints (the escalations) made by Behnam in his emails were not “part of the reason” which informed the termination decision (T 1736). Adrian Di Marco confirmed that was so, and once again emphasised the distinction between the fact of a complaint in an email which he “couldn’t care less about” and the underlying behaviour which was “inappropriate for an executive”. He was challenged as to whether that distinction was drawn in his 2023 affidavit, and it was put to him that this was a recent invention to justify the termination (T 1737). Adrian Di Marco denied that proposition stating: “no, not at all… I have struggled with this for nine years. And for nine years, you know, it has been the behaviours. But, yes, it has been difficult to enunciate it. It has been very difficult to enunciate it, okay, because it’s all mixed together”. That last answer was not further pursued in cross-examination.
687 A series of questions were put to Adrian Di Marco about a request that he made to Gareth Pye on or about 16 May 2016, to provide an email detailing his recollection of the interaction between Stuart MacDonald and Behnam which is the subject of the 13 May 2016 complaint. An allegation was put to him that he was “trying to create a paper trail” to justify the termination decision, which Adrian Di Marco convincingly denied, explaining that he simply wanted Gareth Pye’s version of the facts (T 1747). Adrian Di Marco further denied the proposition that he well knew what would be contained in the email.
688 Next, he was questioned to the effect that he was “motivated by a desire” in the days prior to Behnam’s termination to limit the exposure of Technology One to a subsequent legal proceeding, which he also convincingly denied (T 1748-1749). Questions were also put to him to the effect that he always sought to give “open answers that preserve your flexibility in this litigation”, which Adrian Di Marco also denied (T 1750-1751).
689 The discursive cross-examination then returned to a number of earlier themes; being whether Behnam was terminated because Adrian Di Marco thought that he would become entitled to an incentive after the La Trobe University deal was finalised, which he denied (T 1752), what he thought of the Rebecca Gibbons Email and the allegations contained in it, where he maintained his previous evidence (T 1752-1754), that he did not terminate Behnam because of the potential bullying complaint against Peter Suchting (T 1755) and nor did he terminate Behnam because of earlier complaints that he had made (T 1756-1761). At that point there was an objection that the cross-examination had become repetitive, which I upheld. The cross-examination continued during which Adrian Di Marco sometimes denied or could not remember that “in the lead up” to the termination he was concerned that it might “blow up” and cause significant loss to Technology One (T 1762), the matter of the countdown sheets was returned to and again explained by Adrian Di Marco conformably with his earlier evidence (T 1763-1765) and he could not recall a meeting of the executive leadership team which discussed the impending termination approximately one week before it was effected (T 1768-1769). The cross-examination then concluded.
690 In re-examination (from T 1769), Adrian Di Marco reconfirmed his evidence about the difference between the figures in the countdown process and the discounted figures that he would take to the board for the licence fee projections, the importance of locating and retaining high performing regional managers (T 1772-1773) and when asked to return to his evidence about procrastinating in making Behnam’s termination decision, he said (T 1776):
I had all the facts. They had been presented to me one way or the other. It was a decision, I should have made, but I put it on the too-hard basket, I procrastinated, and – and then finally when Rebecca Gibbons’ email arrived, it was – you know, I couldn’t procrastinate. I had a team in crisis. You know, how could Technology One allow this to happen. I was going to lose the team. I needed to now make the decision. But I had all the evidence. I was just procrastinating on it.
When you say you should have done something, what time period are you talking about there?—I should have done it when Martin suggested it, or offered it. I should have backed Martin. Martin is a mature, highly trained executive and I overrode him, and I didn’t do the right thing by Martin. You know, I didn’t do the right thing. I – I overrode Martin and – and I knew I was overriding him, and I knew I hadn’t done the right thing by him and I – and I respect Martin because he – he didn’t argue. He accepted my call and he let it pass to me and he wore the brunt of my decision. The decision I made, he had to live with and he had to wear the brunt of it, and now the company has worn the brunt of it. So I made a bad decision. I overrode an operating officer and I never should have done that.
691 What is demonstrated by this summary of the evidence given by Adrian Di Marco is that he was not materially undermined in his evidence-in-chief. I have found my assessment of Adrian Di Marco as a witness was overall positive. His evidence is consistent with the documented contemporaneous facts that well-supported his decision to terminate Behnam’s employment. Those reasons were Behnam’s poor performance in later years as the regional manager for Victoria; evidenced by stagnating licence fees, the failure to deliver the tender 15% revenue growth in each year, his fractured relationship with his team members, his inability to work cooperatively and constructively with his senior managers (in particular Martin Harwood and Stuart MacDonald), the fact that he was assessed as lacking the necessary management skills to take the Victorian region forward and then, as the final straw, the damning assessment of him described in the Rebecca Gibbons Email.
692 Technology One is correct to submit that Behnam’s deteriorating performance as a manager and the respective assessments that he was not the right person to take the Victorian region forward were not seriously challenged in the cross-examination of any of the witnesses called by it.
693 There is also the medical evidence to the effect that Behnam was suffering from a Major Depressive Disorder prior to his termination, which had first been diagnosed as early as 9 November 2015 by Dr White, and as set out in the joint medical expert report. The psychiatrists were in agreement that prior to Behnam’s termination of employment:
The applicant’s mental state would likely have impacted upon his capacity for employment as described by the applicant himself, as he used compensatory mechanisms such as working longer hours and at times his symptoms resulted in his being distracted and needing to take some sick leave.
694 That opinion is consistent with the contemporaneous assessments of Dr Latimer (SCB 6771), Dr White (CB 227), Dr Ainsworth (SCB 9078) and the report of the Medical Panel (SCB 9071).
695 Although the experts were also in agreement that prior to May 2016, Behnam remained “functioning at work to a large extent because of his obsessive compulsive personality traits”, that says nothing about the assessments made by Martin Harwood and Edward Chung, that Behnam was simply not performing as an effective regional manager for the Victorian region and was unsuited to the task of taking the region forward.
696 On multiple occasions in his cross-examination Behnam demonstrated that he was not a team player, consistent with numerous contemporaneous emails that I have referenced above. I do not traverse all the cross-examination passages that I have earlier referenced. However, I particularly mention his fifth column evidence, his multiple references to the Victorian region as being “my business”, his complaints that more senior managers were and did not have the right to interfere with his management of his business, his inability to accept decision-making and direction from Martin Harwood and Stuart MacDonald and his denial that he was required to work collaboratively with other members of the team (T 506). Many other examples are given in the closing submissions of Technology One at [783]-[807], which I accept.
697 For these reasons, I am well satisfied that Technology One has rebutted the presumption at s 361 in that, to the extent that Behnam has established that complaints were made and has contended that such complaints or conduct amounts to adverse action within the meaning of ss 340 and 341, when led to his termination of employment, it did not do so for any of those prohibited reasons. I am also satisfied that none of those prohibited reasons were the substantial or operative reasons within the meaning of s 361: Barclay at [103]. In so concluding, I am well-satisfied that there were multiple reasons relating to Behnam’s performance that were considered by Adrian Di Marco in deciding to terminate Behnam’s employment, all of which was brought to a head, by the matters contained in the Rebecca Gibbons Email.
16.1.5 The balance of the termination adverse action claims
698 That leaves for separate consideration the adverse action termination claims concerning Behnam’s physical or mental disability, the leave workplace right issue, his right to bring a legal proceeding and the safety net entitlements or incentives.
16.2 Was Behnam terminated contrary to s 351 or 352?
699 Section 351 relevantly provides that an employer must not take adverse action by dismissing an employee because of a physical or mental disability. Section 352 provides that an employer must not dismiss an employee because of a temporary absence from work because of illness or injury.
700 There is no doubt that Behnam suffered from a Major Depressive Disorder with physical sequalae prior to his termination. He contends that s 351 was contravened in that his termination was because of that and/or because he was temporarily absent between at least 16 and 17 May 2016, with the consequence that s 352 was contravened.
701 To contravene s 351, it must be concluded that Adrian Di Marco (or again any one of the material influencers) were aware that Behnam had a physical or mental disability at the time: Railpro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 at [128], Perry J. And, Behnam has the advantage of the presumption at s 361.
702 Section 352 requires that dismissal must be because of the temporary absence: it does not prohibit dismissal during a period of temporary absence: Buckeridge v Littlepay Pty Ltd [2023] FCA 1036 at [141], O’Callaghan J. Further, as His Honour stated at [142] the inquiry is not whether it was unreasonable to require an employee to attend work during a period of temporary absence – procedural or substantive unfairness questions do not arise.
703 There is an issue about what is included in these aspects of Behnam’s claim and admitted. The pleaded case at [5G] is that Behnam suffered from a mental disability, which was ongoing, due to his daughter’s hospital treatment in 2010 and 2011. That is admitted, to an extent. In the defence to the Amended Retrial Statement of Claim filed 8 April 2025, it is admitted that from about late 2011, Behnam suffered a psychiatric injury in the form of a Major Depressive Disorder or chronic Adjustment Disorder as a result of his daughter’s illness and his personal feelings of guilt and associated anger therewith. There is a detailed pleading of the conclusions of the various psychiatrists, including the Medical Panel, in support. The history as given by Behnam to the medical practitioners is extracted, in part. Otherwise, the pleading is denied.
704 Much later in his Further Amended Retrial Statement of Claim, at [63] Behnam pleads that between 12 and 18 May 2016 he suffered from severe stress, anxiety and depression; “the mental disability”. That allegation is admitted at [63] with the further contention that Behnam “continued to suffer from the same psychiatric injury that he had been suffering from about late 2011”. The point for present purposes is that I accept the Technology One submission that they do not, and have never, admitted that Behnam suffered from two separate mental disabilities, although they accept that the termination exacerbated his pre-existing Major Depressive Disorder.
705 The extent of Behnam’s mental disability has been addressed in my consideration of the expert opinion evidence in Part 7.1 of these reasons. It is not an issue on the pleadings that Behnam was absent from work on 16 and 17 May 2016, and that such absence was temporary within the meaning of s 352. As I have noted, Behnam provided to Technology One a medical certificate certifying his unfitness to attend work for the period 16 to 17 May 2016.
706 Behnam’s pleaded case at [5H] is that employees of Technology One were aware of the health issue that had affected Behnam’s daughter and “the subsequent impact it was having” on him. That allegation is admitted to the extent of awareness of his daughter’s health issues but is otherwise denied. There are two periods to consider. The first being to 13 May 2016. Behnam told Dr Latimer during his consultation on 4 November 2015, that one coping mechanism that he had then employed was to minimise and ignore his symptoms, to continue with his work and that he did not feel comfortable to discuss his condition with, amongst others, his work colleagues (SCB 6771). I have accepted that as an accurate record of what was said. Similarly, when Behnam consulted Dr White on 4 November 2015, he stated that his employer did not know about his suicidal tendencies (CB 225).
707 He did not tell Technology One that he had been assessed by the Medical Panel in January 2016 (T 153). None of the emails that he relies upon at [5H] of his pleading as establishing knowledge of his disability do so. Eventually, he accepted in cross-examination, that he did not tell “anyone [at] Technology One” that he was unwell because of his daughters’ illness, nor did he disclose his suicidal ideation (T 196). He gave some contradictory evidence on that point, which I simply do not accept as truthful because it is inconsistent with the contemporaneous medical records and the multiple denials by Technology One employees that, although some were aware of his daughters illness, none were aware of his mental or physical disability: Martin Harwood (T 1011, 1135); Stuart MacDonald (T 1261); Edward Chung (CB 2987), Kathryn Carr (CB 2903) and Rebecca Gibbons (CB 2705). As for Adrian Di Marco as the decision-maker, in evidence-in-chief, he said (T 1614):
I want to now ask you about a conversation that happened around that time, but not dealing with the applicant’s contract claim, but another topic. You’ve given evidence that you knew in 2010 or 2011 that the applicant’s daughter was unwell, and there’s no dispute on the evidence that you and the applicant discussed the daughter’s illness around that time. The applicant says in broad terms that in one or more of these conversations around that time, he made you aware that he was suffering from a mental disability or was unwell because of the issue with his daughter’s illness. What, if anything, have you got to say to that?—Definitely not. Behnam always came across as very strong, very self-assured, to such an extent that I commented and said to other executives about how well he was handling the situation with his daughter. We had a very clear policy that even though people were expected to work hard to deliver results, family always came first, as did their personal health. Behnam was aware of that. He was told on numerous occasions about that. It was part of a culture of the company. So, no, he never said that, never gave any indication that he was suffering from mental illness.
708 He also said, in answer to a question from me, that he was not aware that Behnam was working 18 or more hours per day and: “I would say that that is not something he should have been doing” (T 1615). That evidence was unchallenged, and I accept it.
709 From 13 May 2016, there is, as detailed above, emails sent by Behnam on 13, 14 and 15 May 2016 (CB 8510, 8673, SCB 8668, 8502 and CB 8507) in which he made statements to the effect that he was suffering anxiety, stress, was distraught, was not well and on medical advice was taking medication. In the last of those emails, which dealt with the incident concerning Stuart MacDonald, he emphasised that he was stressed to the extent that he required medical treatment and he attached a medical certificate for the period until 17 May 2016. Accordingly, the recipients of those emails, Adrian Di Marco, Edward Chung and Kathryn Carr were aware that Behnam was unwell to the extent then disclosed.
710 The issue, however, is whether those individuals were aware that Behnam suffered the pleaded mental disability, being severe stress, anxiety and depression? In Flavel at [126], Perry J accepted a submission on the facts of that case that a disability within the meaning of these provisions “does not include ordinary human responses to particular circumstances, such as nervousness”. In this case, Behnam’s descriptions of his illness or disability went considerably further. For example, in his email of 15 May 2016 sent at 11:21 pm to Adrian Di Marco (CB 8507), he included this sentence:
The abuse that I have received from Stuart is unprofessional and unnecessary, it has been witnessed by a large number of people within the business and has caused me an enormous amount of stress, anxiety, humiliation and I feel belittled, to the point I had to see a doctor on Friday evening as I was extremely depressed and stressed as a result of this interaction.
711 That is direct evidence of depression, though not that Behnam was then suffering from his Major Depressive Disorder syndrome. Adrian Di Marco had a poor recollection in cross-examination of the extent to which he was, immediately prior to the termination, aware of Behnam’s illness (T 1708). What is incontrovertible is that Adrian Di Marco responded by email on 16 May 2016 at 7:38 am, where he referenced Behnam’s “long and emotional email” acknowledged “how upset you clearly are” and that he expected Behnam and Stuart MacDonald “both to go back to work”. Faced with that email, Adrian Di Marco maintained his evidence that he did not remember whether he knew that Behnam was physically sick but was “obviously happy to accept that statement that I saw that he was not well” (T 1715). Thus, Adrian Di Marco was aware from 15 May 2016, that Behnam was suffering from enormous stress, anxiety and affiliation to the extent that he was, on his subjective assessment, depressed.
712 Each of Edward Chung (CB 2987), Stuart MacDonald (CB 2770) and Kathryn Carr (CB 2903) denied knowledge that Behnam was suffering from a mental or physical disability from 13 to 18 May 2016. Their evidence was either not challenged or not effectively challenged, and I accept each of their accounts.
713 The next issue is whether Adrian Di Marco decided to terminate Behnam because of his knowledge of his mental or physical disability. The termination decision was made and communicated between 25 and 26 April 2016. At that time Adrian Di Marco was not aware of Behnam’s mental or physical disability and it follows that the s 351 case is not established: that is, the presumption at s 361 is displaced. It matters not that I have found that from 15 May 2016, Adrian Di Marco did have knowledge of Behnam’s physical and/or mental disability, to the extent disclosed in Behnam’s email of 15 May 2016. However, I am satisfied that Technology One has displaced the presumption at s 361: the termination decision had been made before Adrian Di Marco acquired the knowledge and it follows that the pleaded adverse action was not taken because of Behnam’s then known physical or mental disability.
714 In so concluding, I acknowledge an argument that potentially favours Behnam to the effect that it is the act of termination that constitutes the adverse action, and on that basis, knowledge acquired between when a decision is made to terminate and when a decision is implemented is relevant. However, even on that broad case (which is not distinctly pleaded), I remain satisfied that the implementation of the termination decision was not taken because of Behnam’s mental or physical disability, in that none of the reasons that I have found that Technology One took into account were concerned with Behnam’s illness or disability.
715 I must also resolve whether any of the contended material influencers took Behnam’s mental disability into account.
716 Martin Harwood had no knowledge of Behnam’s email which attached his medical certificate, was not aware that Behnam was absent from work due to temporary illness and Behnam’s disability was a complete surprise to him (CB 3165-3166, 3172 and T 1135-1136). I have no hesitation in accepting his evidence. Stuart MacDonald had “no idea” what Mr Hyde Page was talking about when questioned as to whether Behnam was terminated because of the exercise of his right to take temporary illness leave, and in in any event, stated that his support for the termination had “nothing to do” with Behnam’s health (T 1261-1262). I accept his evidence. I similarly accept the unchallenged evidence-in-chief of Edward Chung (CB 2987-2988) and Kathryn Carr (CB 2903). So too was Rebecca Gibbons unaware of Behnam’s disability at the time (CB 2713).
717 As to the s 352 case, it fails for several reasons. First, although Behnam was in possession of a medical certificate certifying his unfitness to attend work for the period of 17 to 24 May 2016, he does not contend that he provided it to Technology One. To the knowledge of Technology One, his certification expired on 17 May 2016. Second, although I have accepted that during the telephone discussion with Adrian Di Marco on 16 May 2016, Behnam disclosed that he was unwell, he did not disclose the seriousness of his condition. He did not disclose the fact that he was in possession of a medical certificate covering the period of the scheduled meeting on 18 May 2016. He did not disclose that he was suffering from depression. He did not say that he was too unwell to travel to Brisbane for the meeting.
718 Thirdly, and more importantly, the termination decision was not taken because Behnam was temporarily absent from work because of illness or injury: rather, the decision was implemented for all of the perfectly lawful reasons that Technology One relies on, and which I have accepted.
16.3 Was Behnam terminated because of a leave workplace right?
719 Relatedly to the ss 351 and 352 claims is the separate contention that Technology One terminated Behnam’s employment because he had a leave workplace right or to prevent its exercise. This is pleaded as the benefit of a workplace law being an entitlement to take leave due to personal injury: s 341(1)(a).
720 It follows from my findings on the ss 340 and 341 claims, that Technology One has established Behnam was not terminated because of this right.
16.4 Was Behnam terminated because he had a right to bring a legal proceeding?
721 This is separately pleaded as Behnam’s ability to initiate a process or a proceeding under a workplace law: s 341(1)(b). The focus of this claim is the contention that Behnam made that claim to Rebecca Gibbons during their meeting on 20 April 2016, which was then noted as a potential bullying claim against Peter Suchting in the Rebecca Gibbons Email.
722 His pleaded case is that when he met with Rebecca Gibbons on 20 April 2016, he stated that Technology One owed him a duty of care to protect him from bullying and if it did not intervene, he would be forced to bring a legal proceeding against it.
723 This claim fails for multiple reasons. In Part 15 I have determined that I am not satisfied that the pleaded claim has been made out. I am however, satisfied, in accordance with the Rebecca Gibbons Email that Behnam said he was considering a bullying claim against Peter Suchting. In any event, Technology One accepts in closing submissions that Behnam complained to Rebecca Gibbons about Peter Suchting and “quite possibly” also Marie Phillips.
724 Rebecca Gibbons did not make the decision to terminate Behnam, and to the extent that she materially influenced Adrian Di Marco to do so, her email speaks for itself. There is no mention of a contemplated legal proceeding against Marie Phillips. There is no evidence which supports a finding that any of Adrian Di Marco, Martin Harwood, Kathryn Carr, Edward Chung or Stuart MacDonald as attendees at the meeting on 26 April 2016, were made aware of what Behnam had said to Rebecca Gibbons beyond the content of her email, and her oral elaboration of it during the 26 April 2016 meeting Indeed, each denied any extended knowledge: Adrian Di Marco (CB 2849), Martin Harwood (CB 3157-3158, T 1009), Kathryn Carr (CB 2873), Edward Chung (CB 2933) and Stuart MacDonald (CB 2749. None of that evidence was seriously challenged or undermined in cross-examination.
725 Thus, this aspect of the claim is limited to a foreshadowed claim against Peter Suchting. Adrian Di Marco in evidence-in-chief said, in relation to this part of the Rebecca Gibbons Email (CB 2849):
I cannot remember if I read that particular paragraph or if I was told about it. However, I did not decide to terminate Mr Roohizadegan’s employment because he was considering legal action in relation to a comment made by Mr Suchting, or in relation to anything else. I was not going to sack a person because that person was being bullied or because that person was considering their legal options as a result of being bullied. Sacking a person in those circumstances would not solve anything and would only create more problems. Rather, the reason I decided to terminate Mr Roohizadegan’s employment was because of the other matters that Ms Gibbons reported in the Carr/Gibbons email dated 25 April…
726 In cross-examination, he maintained that he could not recollect whether he knew about this threat to bring legal proceedings before 18 May 2016 but conceded that it was “possible” (T 1702-1703). In answer to the next question to the effect that it was his evidence that Behnam’s contemplated legal action “did not contribute in any way to your decision to terminate” he answered firmly that it did not, he would be disappointed if such legal proceedings commenced but not concerned. Then the questions were framed in a different way, and more broadly, as the possibility of taking legal action against Technology One (T 1705). He accepted that Behnam had the right to take legal action. He maintained this denial, in various forms, that he was not concerned that Behnam may commence a legal proceeding following his termination (T 1705, 1748). What this reveals is that his evidence-in-chief was not undermined, and I accept it together with his evidence in cross-examination.
727 As to the other attendees at the meeting of 26 April 2016, similarly to the above, each of Martin Harwood (CB 3157-3158, T 1137), Stuart MacDonald (CB 2749, T 1258, Edward Chung (CB 2988-2989, T 1801, 1805) and Kathryn Carr (CB 2873, T 1330-1331) convincingly denied that a threat to commence a legal proceeding against Peter Suchting formed a component of their reasoning that Behnam should be terminated.
728 Accordingly, this claim fails.
- MISREPRESENTATION CLAIM
729 This claim relies on s 345 and is pleaded at [72C]-[72K] of the Further Amended Retrial Statement of Claim. Stepping through those paragraphs, the claim may be reduced to the following essential elements.
730 Behnam had a workplace right, founded in statutory occupational health and safety laws, to take reasonable care for his own safety while at work. Technology One does not dispute this in that a workplace right is defined to include responsibilities arising under a workplace law: s 341(1)(a).
731 Behnam then contends that he “exercised” that right, or attempted to do so, by; first, telling Adrian Di Marco that he was unwell during telephone calls on 13 and 16 May 2016, second by emailing a doctor’s certificate certifying his unfitness to work within the period 13 to 17 May 2016, third by “expressing reluctance” to Adrian Di Marco about his attendance at the meeting in Brisbane during the telephone discussion on 16 May 2016, fourth by telling Adrian Di Marco that he was unwell at the commencement of the meeting in Brisbane and, fifth by reluctantly attending that meeting.
732 Despite those matters, and “with knowledge” of each of them, Adrian Di Marco during the telephone discussion with Behnam on 16 May 2016 expressly represented that the purpose of the meeting was to “in a positive manner, discuss and resolve the recent issues” between Behnam and Stuart MacDonald; in particular by having Stuart MacDonald apologise; impliedly represented that the meeting “would be held in a safe environment and conducted safely” and “was silent as to his intention to use the meeting to summarily terminate” Behnam’s employment. These matters are pleaded as amounting to representations.
733 The pleading continues that Adrian Di Marco expected Behnam to rely on the representations in deciding whether to attend the meeting, and knew that each was false or misleading, or was reckless (limited to the implied representation).
734 The representations in fact were false or misleading because the purpose of the meeting was not that it be conducted in a positive manner in order to resolve issues between Behnam and Stuart MacDonald, was not held in a safe environment and was for the purpose of summarily dismissing Behnam’s employment.
735 In reliance on the representations Behnam “reluctantly attended” the meeting.
736 Section 345 provides:
Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
737 Justice Jagot provided a summary of the relevant principles in Australian Municipal, Administrative, Clerical and Services Union v Commissioner of Taxation [2022] FCA 1225 at [453]-[459] which Horan J summarised and distilled in Australian Nursing and Midwifery Federation v St Vincent’s Private Hospitals Ltd [2025] FCA 18; (2025) 187 ALD 311 at [40], which I gratefully reproduce and adopt:
(1) section 345 is intended to protect the rights given to workers by the FW Act and ensure that neither an employer nor any other person misleads workers about their rights under that Act;
(2) the particular group to whom the representations are alleged to be directed must be identified;
(3) in order to be about a workplace right, there must be some connection or relationship between the representation and the workplace right or its exercise;
(4) a representation is misleading if it has a tendency to lead a person into error, as opposed to a tendency to create mere confusion;
(5) the state of mind required by s 345 attaches to the false or misleading quality of the representation, and not the act of making the representation;
(6) a false or misleading representation is made knowingly where the maker of the representation does so purposely or deliberately or intentionally while knowing that the representation is untrue; and
(7) a representation is made recklessly when the maker of the representation either closes their eyes to the obvious as to truth of the representation, or, knowing that it is likely that the representation is not correct, chooses to make it, not caring whether or not it is correct.
738 It is a necessary element that Behnam must establish that the identified representations be “about” the identified workplace right. It is not sufficient that the representation be made in the context of the employment relationship. As explained by Mortimer J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091 at [254]:
In this context, the word “about” in s 345 means “in relation to” or “concerning”: that is, it contemplates some degree of connection or relationship between the representation and (relevantly) the exercise of a workplace right: see generally Gold Coast City Council v Satellite Wireless Pty Ltd [2014] FCAFC 51; 220 FCR 412 at [38]- [39], [43] (the Court); R v Le [2002] NSWCCA 186; 54 NSWLR 474 at [59] (Heydon JA, Dunford and Buddin JJ agreeing). The connection must be sufficient for the operative false or misleading conduct to occur. That is not to say there must be a causal connection: rather it is to recognise that the core purpose of the prohibition is to protect the exercise of the identified workplace rights in the FW Act from conduct which could undermine, frustrate or otherwise adversely affect the exercise of those rights.
739 It follows from my findings in Part 15.25 that Adrian Di Marco placed the call to Behnam on 16 May 2016 for the purpose of inviting him to attend the meeting in Brisbane on 18 May 2016, at which time Adrian Di Marco intended to terminate his employment. He did not disclose that purpose to Behnam. Adrian Di Marco also said words, to the effect, that there would be a discussion at the meeting of the issues recently raised by Behnam concerning Stuart MacDonald, that such discussion would be constructive and there was mention, at least by Behnam, of a requirement that Stuart MacDonald should provide an apology. There was also discussion about whether Kathryn Carr would undertake an investigation of Behnam’s allegations that he had been mistreated by Stuart MacDonald. Behnam was told that the meeting was scheduled for a period of five hours.
740 I am not satisfied that Adrian Di Marco impliedly represented that the meeting would be held in a safe environment and conducted safely, for the reason that I am not satisfied that Behnam made statements to the effect that he wished to work in a safe, mutually respectful work environment that was free of bullying and mistreatment.
741 Thus, I am satisfied that Adrian Di Marco expressly misrepresented the purpose of the meeting to Behnam and impliedly misrepresented, by his silence, that the true purpose was to personally deliver his termination decision and to give effect to it. As is well-established, silence may amount to misleading or deceptive conduct where the circumstances are such that there is a reasonable expectation that a fact would be disclosed. That is so in this case, where on any view scheduling a summary dismissal meeting for five hours masked its true purpose in combination with the statement that there would be a discussion of the Stuart MacDonald issue: cf Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 at [159], Logan, Bromberg and Katzmann JJ.
742 I also find that Adrian Di Marco knew at the time that these representations were false, which is demonstrably clear from the undisclosed reason for Behnam’s attendance.
743 This leads to consideration of the more complex issues. First, were the representations about the contended workplace right? To engage the statutory provision, Behnam must establish that Adrian Di Marco knowingly (or recklessly) made those representations about his right to take reasonable care for his own health and safety while at work. As Wheelahan J observed in Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 at [344]:
The state of mind required by s 345(1) of the Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth.
744 Behnam did not say in his evidence that he told Adrian Di Marco that he had a responsibility, a duty or some other form of obligation to take reasonable care for his own health and safety while at work. Adrian Di Marco did not address this in his evidence-in-chief and was not cross-examined about his state of mind of the existence of that duty at the time. The statutory presumption at s 361 does not apply to this claim. Behnam has failed to prove that either of the representations made by Adrian Di Marco was knowingly false (or that he was recklessly indifferent to truth or falsity) about Behnam’s statutory workplace right.
745 Second, I am not satisfied that either representation was about Behnam’s responsibility to take reasonable care for his own health and safety at work. The representations that were made were expressly false as to the purpose of the meeting and were silent as to its true purpose. They were representations about inducing Behnam to attend the meeting. They were not about Behnam’s separate responsibility to take reasonable care for his own health or safety. What is missing on the facts is “a clear connection between the subject matter of the representation and the existence of the workplace right”: Australian Postal Corporation at [251]. The representations did not “undermine, frustrate or otherwise adversely affect” the exercise by Behnam of his workplace right: Australian Postal Corporation at [254].
746 Third, for a representation to be misleading it must induce, or tend to induce, error in the representee: BHP Coal at [159]. Even if I am wrong in my conclusion that there was no misrepresentation about the workplace safety right, there is no evidence that Behnam was induced into error. Nothing said by Adrian Di Marco during the telephone discussion disabused Behnam of his asserted belief.
747 For these reasons this claim fails.
- ADVERSE ACTION NON-TERMINATION CLAIMS
748 Contrary to how Behnam’s case was pleaded, opened and intensely focused during the trial, by closing submissions the emphasis shifted to the “manner” of the termination which Mr Hyde Page characterised orally as the “quickest way home” for Behnam to succeed (T 2022). That requires more explanation.
749 The submission was developed as follows. The psychiatric evidence supports a finding that the representations made to Behnam about the purpose of the meeting on 18 May 2016 and the timing of the termination is the major reason for Behnam’s incapacity. Technology One misled Behnam about his future, misrepresented the purpose of the meeting and the consequence was that the termination “came as the greatest possible shock and occurred while Mr Roohizadegan was physically sick”. This is referred to as the “pre-termination conduct” which is specified as the three forms of adverse action “associated with the termination but separate from the termination itself” comprising two emails sent by Adrian Di Marco on 16 May 2016 and his oral representations during the telephone discussion that day. Additionally, the contended contravention of s 345 is also relied on, but as I have just explained it may be put to one side as not established.
750 The end point of the submission as framed in writing is:
The Applicant’s basic contention is that the three adverse actions were taken because Mr Di Marco wanted to procure a deed of release and also wanted to sack Mr Roohizadegan as soon as possible. He was concerned about the consequences that might follow if Mr Roohizadegan was not terminated as soon as possible, such as Mr Roohizadegan accruing incentive rights in respect of the La Trobe deal, and consequences that might follow from Mr Roohizadegan’s complaints about Mr MacDonald’s bullying. The desire to sack Mr Roohizadegan as soon as possible explains why Mr Di Marco pressed Mr Roohizadegan to come to Brisbane while he was sick, rather than waiting until Mr Roohizadegan had recovered his health.
Mr Di Marco also wanted to maximise the possibility that Mr Di Marco could procure a deed of release at the termination meeting. He thought this could more easily be achieved if he terminated Mr Roohizadegan under circumstances where Mr Roohizadegan was physically sick, emotionally distressed, isolated from friend and support, and had no expectation he was about to be terminated.
751 What is relied on is the dismissive response to Behnam’s complaint made to Adrian Di Marco on 16 May 2016 (in the form of his email response: CB 8506), the deceptive meeting request and the direction to attend work whilst on medically certified leave. The direction to attend work whilst on medically certified sick leave claim is not made out in accordance with my findings in Part 15.25. In summary, Behnam failed to disclose to Technology One that he was in possession of a medical certificate certifying that he was not fit for work on 18 May 2016 and, although he did tell Adrian Di Marco during the telephone discussion on 16 May 2016 that he was unwell, he did not say that he was too unwell to travel and if he had said that, Adrian Di Marco would have postponed the meeting.
752 That leaves for analysis the dismissive response to the complaint and the deceptive meeting request. It was not made clear in submissions how the first relates to the manner and method of termination, taken from the expert report of Professor Dennerstein of 4 May 2024 (CB 2134), which is contended to have been a cause of Behnam’s incapacity. The particular opinion relied upon from the report is, commencing with the final question for her opinion (CB 2154):
(l) View on the extent that the manner and method of terminating and informing Mr Roohizadegan of his termination as described in paragraphs 48 to 62 of the Retrial Statement of Claim impacted Mr Roohizadegan and/or contributed to his psychiatric condition(s).
Mr Roohizadegan should have been offered a support person. It is reprehensible that the Chairman Mr Di Marco had insisted that his employee travel to Brisbane for a meeting while on sick leave and profoundly distressed by the bullying he had experienced. He was then not given the opportunity to discuss what had occurred. Further the nature of the meeting was dishonestly represented to Mr Roohizadegan. The manner and method of termination was a betrayal of the trust and faith that Mr Roohizadegan had in his Chairman. This betrayal has had a major impact on his mental health and also led to distrust of employers generally.
753 The fundamental difficulty with how Behnam’s case is now sought to be cast in closing submissions is that it departs from the pleaded case. There is no contention in the Further Amended Retrial Statement of Claim about breach of trust, a betrayal of trust or a lack of procedural fairness. Nor, returning to the submission of Mr Hyde Page is there any pleading that Adrian Di Marco acted as he did on 16 May 2016 for the purpose of procuring a deed of release to extinguish Behnam’s prior complaints, any financial incentives he may be entitled to on closure of the La Trobe University deal or any other accrued incentive rights pursuant to his contract of employment. To the extent that I permitted questions in cross-examination (over the objection of Mr Wood) concerning why Adrian Di Marco (or others) wanted Behnam to sign the deed of release and to accept the termination package, the questions were confined to matters of credit (T 1668). At the time Mr Hyde Page expressly acknowledged that he could go no further than posing his questions on the credit issue. But now in closing submissions, he seeks to fundamentally recast the case to raise a serious issue without notice. Self-evidently the submission must be rejected.
754 And all this notwithstanding, the credit attack wholly failed on this issue. Adrian Di Marco convincingly denied the alleged improper purpose, as did Kathryn Carr (T 1751, 1348). Procuring a deed of release was standard procedure (CB 2996).
755 There are other aspects of the submission that are within the pleaded case, being the contention that the conduct of 16 May 2016 occurred because Behnam had exercised or proposed to exercise his safety net contractual entitlement (that is the asserted contractual right to incentive payments calculated in accordance with SMS revenue), the dismissive response to complaint and the separate deceptive meeting request.
756 It is also the case that the emphasis of the submission altered when developed orally to a broad contention that the medical evidence supports the finding that the conduct of 16 May 2016 was a cause of the aggravation of Behnam’s pre-existing Major Depressive Disorder, and now his total incapacity. This was developed as the manner and method of the termination in reliance on the opinion of Professor Dennerstein, set out above. Reliance is also placed on some evidence given by her during the expert conclave.
757 During the conclave, I invited the panel members to express their respective opinions on whether Behnam would likely have suffered the same or similar aggravation to his pre-existing Major Depressive Disorder, even if he had been lawfully terminated. That is, I invited the drawing of a distinction between the fact of termination rather than his perception that he had been unlawfully treated. My exploration of this topic commenced at T 1426. The conclave evidence given by Professor Dennerstein is at T 1430. Some context is therefore required.
758 Dr King answered first. In his opinion Behnam “would be in a much better position now” in the event of a lawful termination. He also emphasised that the manner of termination was “awfully cruel”, expressed on the assumption that Behnam had been bullied and “coaxed from his home to go up into Brisbane” and then summarily terminated (T 1427). I then refined my question and sought the expression of opinions on whether Behnam’s incapacity is due to his belief that he has been unlawfully terminated and unlawfully treated before then, in the form of bullying and humiliation, as distinct from the fact that he was terminated. Dr King considered that question too difficult to answer. Dr White believed the termination was the final straw and that even if it had been lawfully effected his opinion was (T 1428):
I don’t know that we tackle that particularly, except I would say perceptions are important and if the individual perceives that they’ve been unlawfully terminated, even if they were lawfully terminated, they’re still going to be very distressed.
759 Dr Dharwadkar expressed the next opinion, which was extensive. Omitting his preamble, he said (T 1429):
I think, presuming that it was only a lawful termination, that was the main trigger for the exacerbation in May of 2016, I think termination itself carries with it multiple levels of losses, so the loss of – not just loss of the financial aspects, but the loss of face, the loss of identity, especially now that they we are almost a decade over, so there’s chronic underemployment and loss of, like, occupational identity, loss of – there’s social activation and, of course, sociocultural losses associated with that.
And I’m not going to get into the realm of whether the termination caused the family breakdown, but certainly the relationship breakdown, estrangement from children and the cumulative kind of demoralisation as a result of the termination itself, even if it was completely lawful, is a big bearing on all of that happened. Along with the fact that that has now led to a stage where the litigation is like a secondary stressor. And loss of work itself, loss of structure to the week itself and loss of not having to go to work is in itself another stressor.
760 Professor Dennerstein followed (commencing at T 1429). She commenced by relevantly opining that:
In my opinion, the problem with the termination was that it was carried out when this man was on sick leave given by his GP, who recognised that he was in an acute distressed state following whatever happened in Sydney with his manager, and was in no fit condition to go to meetings with his CEO, chairman, and was told that by his doctor.
He nevertheless obeyed his chairman because he trusted him, and the biggest factor, I think, was not – or that I think – I agree, termination has terrible effects on all sorts, because of all sorts of meanings and parameters. But what hasn’t been talked about is the betrayal of trust. He really did trust this man and he was lured, from his account – and that’s all I had, that he was lured to something on the basis of, you know, “Please come and that we will – we’re going to talk about expanding, not contracting our duties, not terminating you”, and even he was – he said he was unwell and he had a certificate to say that he shouldn’t be travelling.
HIS HONOUR: All right. I understand your point.
PROF DENNERSTEIN: So there’s a real betrayal of trust. I think that’s the biggest thing for him, and often it’s the very biggest thing in the traumas that I see, which are often more in the area of abuse, it’s a betrayal of trust by a person in authority.
761 That is the passage emphasised by Mr Hyde Page. Associate Professor Phillips then expressed his opinion (T 1430-1431):
To go back to the original question, we were talking about unlawful versus lawful dismissal. I think it’s important to think about the hierarchy of stress, and, in my view – and I think the literature would back me up – that unlawful termination is probably of a greater stressor than lawful termination. Both, however, are major stressors for a person, and I would join my colleagues who have stated that.
762 This topic was returned to when counsel asked questions of the experts. Mr Hyde Page sought the expression of opinion by contrasting two scenarios: a surprising termination that “comes out of the blue” with a termination that is anticipated, even if regarded as unfair (T 1437). Professor Dennerstein responded (which is emphasised in the submission of Mr Hyde Page):
So I think that he would have managed it differently, albeit that he was already depressed and had considerable symptoms as we know. I think that he – he would have managed it differently. I think there would have been certainly an aggravation at the time, but I don’t know that it would have been permanent as what has happened. And also if it had taken place in that way, he wouldn’t have got involved in this perpetual litigation which we’ve already described as being in itself traumatic for him. So I think there would have been a big difference if it had been managed in the way – the second scenario that you put.
763 Dr Dharwadkar disagreed. He emphasised Behnam’s pre-existing mental ill-health, which was first diagnosed in 2010 or 2011, his obsessive personality or excessive compulsive personality traits which in his opinion “is a predisposing and perpetuating factor” (T 1437). He continued, in part:
Here is a man who values – who sees his work as himself. He sees his work – there’s so much association or enmeshment of his ego and identity with work, with his role. And on top of that we have to see – understand that he has never really been well. He was already unwell. You know, I can see the reports of Dr White from, I think, end of 2015, and he had the full hand of mainly depressive symptoms. So we have to see him in that situation. And then if we see him in that situation, I accept that if the termination was surprising, the immediate effect of that would be more than if the termination was more expected.
However, that effect would go away after around six to 12 months. We are now almost a decade from that time. And we have to realise that all the other factors which I mentioned earlier – I can mention them again – the loss of a job, which is not just loss of a job and unemployment, but loss of status in the community, loss of occupational identity, loss of the relationship from the family, the fact that he now sees himself as nothing or worthless because he associated the job with his identity.
764 Dr White’s opinion was (T 1438):
I think, in my experience, being asked to take a support person with you to a meeting with an employer is terrifying, and so the acute stress would be greater, I suspect, in that situation, than being asked just to come along and have a chat about some of the issues. But I’m not sure that the end result would be different. I mean, in both cases he would be terminated and he might ruminate slightly differently about different scenarios but in terms of the actual depression, I’m not sure it would have had a major difference.
765 Dr King opined that he was largely in agreement with Professor Dennerstein, adding (T 1438):
I think to be summoned out of your sick bed interstate away from all your supports to be, you know, let’s cut to the chase, you’re terminated, which I think is extremely brutal, I mean, fairly obviously you have to be much worse and it will cause a much greater embitterment. I would think if it was done in the second way, there – there certainly would be some prospect that he was would go through a difficult period, but he might get things together and start to – to move forward.
But I think that the – I just think the trauma. It’s – to me, it seems heartless, really, to terminate somebody in that way, and I think it’s – it’s almost engineered to cause the greatest psychiatric harm, I think.
766 Finally, Associate Professor Phillips was of the opinion (T 1439):
I think I can be fairly brief. Each scenario is a tough one. However, we know we need to go back again to the issue of personality. It’s – an obsessional person responds very poorly to what that person believes is breach of trust, and the second scenario with summary dismissal or something close to that, he would have perceived as a major breach of trust, and, therefore, his reaction would have been more significant than if the first scenario had applied.
HIS HONOUR: Yes, Mr Hyde Page .
MR HYDE PAGE: Associate Professor Phillips, if I can just ask you to clarify, you referred to the first scenario and the second scenario. The first scenario was the scenario where everything comes as a terrible surprise, and the second scenario is the scenario with the performance improvement plan and the support person.
ASSOC PROF PHILLIPS: Yes, it’s late at night, and I got the – them the wrong way round. But from what I said, it’s obvious that the more significant scenario is the one which happens very quickly and without warning.
767 I do not accept the characterisation of the medical evidence, where reliance is placed on the opinions of Professor Dennerstein, as founding a finding of fact that the deceptive request to attend the termination meeting aggravated Behnam’s pre-existing Major Depressive Disorder, or caused some other form of disorder. The difficulty with Professor Dennerstein’s evidence is it is speculative and turns on her erroneous assumption as to what is the pleaded case. It forms no part of the pleaded case that Behnam should have been offered a support person, that Adrian Di Marco “insisted” that Behnam attend the meeting on 18 May 2016 in the knowledge that he had a medical certificate extending to that day and nor is it part of the pleaded case that there was a betrayal of trust. This case, despite its many complexities and permutations, is not one about the method of dismissal as being procedurally or substantively unfair.
768 Additionally, Professor Dennerstein’s opinions are inconsistent with the medical evidence that the termination (not the manner of it) is the event that caused the exacerbation of Behnam’s Major Depressive Disorder. That was first recorded by Dr King in his report of 22 December 2016 (CB 233) where, in recounting the history as then provided to him by Behnam, he wrote:
He attended the meeting in Brisbane despite his general practitioner advising him not to do so. He went to the chairman’s office who abruptly said “let’s get to the point – I’m terminating you” and warned him not to consult a solicitor as “otherwise this offer is off the table”. The patient was then in an extremely distressed state, was not allowed to return to his office or to speak to staff or clients, and he felt suicidal while flying back to Melbourne. During the flight he wrote a suicide note, and then went to the West Gate Bridge but could find no way of breaching the fence.
769 On the next page, Dr King recorded that Behnam was “extremely angry with how his employment was terminated”. In the section dealing with his diagnosis and opinion, Dr King then stated:
I believe that before the workplace incident and his sudden termination, that Mr Roohizadegan was a highly obsessional, driven and rigid workaholic whose life totally revolved around his work, and that his self-esteem was very reliant on acknowledgement of his work performance by his management.
When his employment was suddenly terminated in a way that he found humiliating and belittling, he was devastated emotionally and for a time highly suicidal.
770 That contemporaneous recitation of history by Behnam and expression of opinions by Dr King, makes no reference to the deceptive meeting request as a cause of the aggravation of Behnam’s pre-existing condition, let alone that it was a cause of his total incapacity. Similarly, there is Dr White’s report of 14 September 2017 (CB 241) where he records Behnam advising: “I have been impacted badly because I was terminated at work in May 2016”. The same history is recorded by Associate Professor Phillips in his report of 13 December 2018 (CB 263-264) that the fact of his termination “shattered” his world and that “My existence has come to nothing”. With that background, Associate Professor Phillips expressed the opinion (CB 275) that the summary dismissal:
Was a high-level psychological stressor for him. The claimant’s depression spectrum symptoms escalated rapidly at that time, and he became preoccupied with nihilistic and suicidal thoughts. At the very least, the sudden and unexpected dismissal caused the claimant to decompensate psychologically with the development of a Major Depressive Disorder…
771 Associate Professor Phillips maintained that opinion in his subsequent report of 11 October 2019 (CB 470). In a joint expert report dated 17 October 2019, authored by Dr White, Dr King and Associate Professor Phillips, in answer to the question whether Behnam suffered from a recognisable and diagnosable aggravation of an existing psychological or psychiatric condition they in part answered (CB 476):
We agree the termination of employment appears to have significantly aggravated the abovementioned depressive disorder which has been precipitated by the medical problems suffered by the applicant’s daughter.
772 Although Dr King in a later report dated 16 August 2023 (CB 479), introduced his opinion that the manner of the termination of employment was a contributing factor, that opinion is somewhat difficult to follow. He stated:
There are multiple causes of the Depressive Disorder; it was initially caused by the illness of his older daughter and related issues, with the main aggravation since being the termination of his employment by TechnologyOne. It is now being contributed to by the ongoing legal struggles over many years without resolution and further contributed to by the separation from his wife, consequent Family Court action and that he feels unsupported by his children.
The main cause currently is the manner of the termination of his employment with TechnologyOne in the ongoing unresolved legal difficulties despite many years of court cases.
773 What is meant by the “manner” of termination is unclear – on the one hand it could simply be a reference to Behnam’s retrospective grievance due to the “ongoing legal struggles” over many years. And if the “main aggravation” was the fact of termination, then Dr King makes no attempt to explain how the pre-termination conduct that is now relied on was the main cause of the aggravation of the pre-existing condition.
774 In my view, the more convincing evidence relevant to the pre-termination conduct adverse action submission as now formulated was given first by Associate Professor Phillips and then by Dr Dharwadkar during the joint conclave, which I have set out above. Their evidence was to the effect that Behnam suffered from an obsessional personality together with a Major Depressive Disorder at the time, with the consequence that he responds poorly to that which he believes to be mistreatment or a breach of trust. His work was his life: his ego and identity. The termination of his employment devastated his world.
775 Then there is Behnam’s evidence. He did not give evidence that the deceptive meeting request caused him to suffer a major deterioration in his mental health. His evidence-in-chief (from CB 76) was to the effect that he was “shocked” by communication of the termination decision, he could not comprehend the decision and was concerned about his ability to find alternative employment at his age. He continued:
I felt shocked, traumatised, humiliated, ambushed and deceived, and I could not believe I had been terminated. It came completely out of the blue. When I arrived at the Melbourne airport, I went to my car and I wrote a brief suicide note, that I planned to leave on the passenger seat in my car.
776 He gave no evidence to the effect that the deceptive meeting request injured him in his employment, as distinct from the communication of the termination decision. There is no doubt the decision was shocking and devastating for him, as reflected in the contemporaneous note that he made following the termination meeting on 18 May 2016 (CB 8868-8870).
777 Although Behnam pleads that the deceptive meeting request was communicated to him because he had made multiple complaints in the exercise of his workplace rights, commencing with the 12 January 2016 complaint and concluding with the 15 May 2016 complaint, the only person who was involved in requesting that Behnam attend the meeting was Adrian Di Marco. Each of Kathryn Carr (CB 2891), Stuart MacDonald (CB 2768), Rebecca Gibbons (CB 2713), Edward Chung (CB 2975) and Martin Harwood (CB 3172-3173) gave evidence to the effect that that they were not involved in the decision to set up the meeting or to communicate to Behnam that he should attend. Their evidence was not challenged. Adrian Di Marco gave evidence that the reason why he did not disclose the true purpose of the meeting was because he did not “want to cause any anguish for Mr Roohizadegan about what I was planning” and also wished to communicate his decision in person (CB 2825). That evidence was not challenged, and I accept it. That was the reason for his failure to disclose the purpose of the meeting. As to the multiple complaints commencing in January 2016, all my findings in Part 15 apply. The complaints were not a reason for the termination, and it follows that they were not a reason for Adrian Di Marco’s failure to disclose the true purpose of the meeting.
778 The third matter concerns the direction to attend work whilst on medically certified sick leave. I reject this submission, consistently with my earlier finding that there was no direction to attend work whilst on medically certified sick leave made by Adrian Di Marco with knowledge of that fact. Moreover, and in any event, consistently with my findings in Part 15.25 and my findings in the preceding paragraph, Adrian Di Marco did not request Behnam to attend the meeting on 18 May 2016 because Behnam had made any one or more of the workplace right complaints. He did so for the purpose of personally communicating the termination decision and in the expectation that Behnam may have considered the departure terms and compensation package that had been earlier prepared, even though the terms were not negotiable.
779 Another difficulty with Mr Hyde Page’s submission (on which the case succeeds without having to establish any of the adverse action dismissal claims) is that it glosses over the statutory requirements at s 342(1). What must be established is that the adverse actions relied on:
(a) injured Behnam in his employment by causing his mental illness/disability;
(b) by altering his position as an employee to his prejudice; and/or
(c) by discriminating between him and other employees each as pleaded at [71] of the Further Amended Retrial Statement of Claim.
780 Further, the adverse action must have been taken by Technology One because Behnam had identified workplace rights (where the presumption at s 361 applies to the alleged reason once matter relied on is established as an objective fact).
781 The direction to attend work whilst on medically certified sick leave claim is not made out as an objective fact as I have explained.
782 Dealing next with the dismissive response to the complaint of 16 May 2016, the contention is that Adrian Di Marco’s reply (CB 8526) to Behnam’s complaint of 15 May 2016 (CB 8526-8529) was dismissive. No elaboration is provided in the pleading to support that conclusion. In closing submissions, other than a reference to Adrian Di Marco’s email and the unreasoned assertion that this “answer the definitions of adverse action”, there is no attempt to grapple with why it was dismissive and how it amounts to adverse action beyond the rolled up pleading at [71] that it, together with six other matters, had a cumulative impact amounting to a contravention of s 342(1)(b), (c) and/or (d). This is most unsatisfactory when the allegation has not been abandoned. The failure to articulate this aspect of the case by the point of closing submissions is of itself sufficient reason to dismiss this aspect of the claim. However, there are more substantive reasons.
783 Behnam failed to adduce any evidence as to why the response by Adrian Di Marco injured him in his employment, altered his position to his prejudice or discriminated between him and other employees. On the medical evidence, Behnam suffered from a Major Depressive Disorder with associated sequelae well before 16 May 2016, and there is no evidence that his condition was aggravated because of Adrian Di Marco’s response. The claim is jarringly inconsistent with the medical evidence that the fact of termination caused the aggravation of Behnam’s pre-existing Major Depressive Disorder. There has been no attempt to explain why Adrian Di Marco’s response to Behnam’s complaint was “dismissive” or what this means in the context of the exchange of correspondence and the events that preceded it. In his reply Adrian Di Marco stated he had spoken to Stuart MacDonald, had obtained an acknowledgement from him that there was a heated discussion but that there was a reason for it: Behnam’s disobedience of an instruction given to him by a senior manager. Adrian Di Marco further explained that he had spoken to Gareth Pye, who had expressed the view that the incident did not amount to bullying. And finally, there is the reference to Kathryn Carr being requested to “officially investigate the matter”. None of this supports Behnam’s characterisation of the response.
784 The next matter relied on by Mr Hyde Page is the deceptive meeting request. I have found that Adrian Di Marco misrepresented the purpose of the 18 May 2016 meeting. But what flows from that is far from clear on this aspect of Behnam’s case. In oral closing submissions, Mr Hyde Page commenced with reliance on the first dot point in Behnam’s email of 15 May 2016 to Adrian Di Marco to the effect that in his view Stuart MacDonald, amongst others, had an agenda “to have me leave” and that he was “prepared to have that discussion at any time in a professional manner” so that he could be informed about his future with Technology One. Mr Hyde Page characterised that as an acknowledgement by Behnam that he understood that his position was untenable (T 1885). He then developed the submission that “the greatest contribution to the incapacitation” was that, despite Behnam being willing to have a departure discussion, he was misled into attending the meeting in Brisbane for the purpose of his summary dismissal. In a more focused way, Mr Hyde Page submitted (T 1887):
[T]he proposition is that he was prejudiced because he was made much more susceptible to a psychiatric injury as a result of being misled. But yes, it’s the same – it’s certainly the same tenure. And the third way in which the adverse action is pleaded is as discrimination between Mr Roohizadegan and other employees, and that aspect of the case is made out because other employees were not subjected to these sort of misrepresentations prior to being terminated.
785 A little later, Mr Hyde Page confirmed that his submission is that Behnam was injured because of that conduct (T 1891).
786 I am quite unable to accept the submission. It first suffers from the absence of a comparator. That is, evidence that Behnam suffered discrimination as between himself and other employees of Technology One (at or about the same level of responsibility) who were treated differently when it came to summary termination. That is, that they received some sort of forewarning as to the purpose of a meeting to summarily terminate their employment.
787 Finally, this aspect of Behnam’s case cannot be accepted conformably with my finding that the decision to terminate Behnam was not made because of one or more of the contended prohibited reasons. It was made for the lawful and justifiable reasons related to Behnam’s performance, lack of management skills to take the Victorian region forward and the damning assessment in the Rebecca Gibbons Email. It is utterly implausible that Adrian Di Marco would act as he did on 16 May 2016 because Behnam had exercised one or more or all his earlier workplace rights from 12 January 2016.
788 That leaves for consideration four more adverse action non-dismissal claims that may be shortly addressed as they turn on findings made when considering the adverse action termination claims.
789 The scrutiny threat of 3 February 2016 is not made out as an objective fact.
790 In closing submissions, Mr Hyde Page collectively addressed the 9 May 2016 abusive meeting, 12 May 2016 public abuse and the subsequent 12 May 2016 abusive meeting. The 9 May 2016 abusive meeting is made out as an objective fact: Stuart MacDonald swore at each of Behnam and Boris Ivancic “you fucking two, get your forecasts together”, which elides with the pleaded contention.
791 The public abuse by Stuart MacDonald of 12 May 2016 is also made out: in the presence of others Stuart MacDonald said “screw you Behnam” in an audibly loud voice. The 12 May 2016 abusive meeting conduct is made out to the limited extent that Stuart MacDonald was angry, the meeting was heated, and Stuart MacDonald swore at Behnam to the effect “fuck you”.
792 Mr Hyde Page submits that each incident “would be characterised by any layperson as particularly cruel instances of office bullying”. Even if one were to accept that submission, there is then no attempt to grapple with why the incidents injured Behnam in his employment or altered his position to his prejudice or amounted to discrimination as between himself and other employees. The pleaded case at [71] asserts as a conclusion that this, and other conduct, in a rolled-up way, had each of the consequences provided for at s 342(1) and no separate claim of harm is linked to these incidents. Then a general claim is made at [73] for compensation mental injury, psychiatric illness, anxiety, shock, distress and humiliation.
793 In his evidence-in-chief, Behnam elided the three separate incidents (T 108-109). Put at the highest, his evidence was that after the meeting on 12 May 2016, Behnam left the room to take his scheduled flight to Melbourne and was “very shaken” (T 109). That does not establish that the three incidents, viewed individually or collectively, caused injury to Behnam in his employment, altered his position to his prejudice or amounted to discrimination. That is not, however, the extent of the evidence. Behnam made contemporaneous complaints about the behaviour of Stuart MacDonald in his emails of 13 and 15 May 2016, which I have set out in Parts 10.11, 10.12 and 15.20. Those emails reference the impact of Stuart MacDonald’s behaviour as causing deep hurt, enormous stress, anxiety and humiliation to the point that Behnam was not able to function at work, went home, visited his doctor and obtained a medical certificate certifying his unfitness to 17 May 2016.
794 Although causing injury to an employee in his or her employment applies broadly, there are limits to perceived unfairness and being upset and suffering stress is unlikely sufficient, depending on the particular circumstances. Justice Rangiah explained why in Lamont v University of Queensland (No 2) [2020] FCA 720, where at [66] his Honour reasoned that there must be “some practical detriment or harm to the employee in his or her employment, and mere unfairness or injustice has not been regarded as enough”, which his Honour elaborated at [71] – [72]:
As the Macquarie Dictionary definition demonstrates, the ordinary conception of “injure” is to cause harm of any kind, damage, hurt or impair. A recognisable psychiatric illness clearly comes within the conception of an injury under s 342(1). Subject to qualifications which I will come to, I do not think that psychological or emotional distress falling short of a recognisable psychiatric illness is necessarily excluded. A situation can readily be imagined where an employee is bullied and harassed by a supervisor to the point where the employee experiences great distress at work on a daily basis, but that distress does not rise as high as a psychiatric injury. In my opinion, distress falling short of a recognisable psychiatric illness may be regarded as an injury if it causes sufficient harm, damage, hurt or impairment to the employee’s emotional state.
However, in the context of s 342(1), not all harm, damage, hurt or impairment to an employee’s feelings can necessarily be regarded as an injury. In my opinion, the word “injury” implies that a minimal level of harm is insufficient. For example, I do not think that a person who experiences physical pain that is slight and fleeting could be said to be injured. In the day to day conduct of any employment relationship, an employer may make decisions and take actions which result in disappointment, upset or reduction in job satisfaction. Some examples include asking an employee to improve their punctuality or performance, requiring an employee to do new or different duties, or requiring an employee to work reasonable overtime. In such a circumstance, it could not necessarily be said that the “employer…injures the employee in his or her employment”. To be described as an “injury”, there must be a sufficient level of harm, damage, hurt or impairment to the employee’s emotional or psychological welfare. A qualitative judgment must be made as to whether the level of emotional distress demonstrated by the evidence amounts to an injury.
795 However, what must not be overlooked is that in Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [4], where Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ observed of the predecessor provision at s 298K of the Workplace Relations Act 1996 (Cth) that taking action for a prohibited reason to injure an employee in his or her employment “covers injury of any compensable kind”.
796 There are two issues. First, whether the evidence establishes a sufficient level of harm in this case. There is no doubt that the three abuse incidents occurred. The more difficult issue is whether they amounted to adverse action by causing Behnam injury.
797 What should be recalled is that Behnam was diagnosed as suffering severe chronic Adjustment Disorder by the Medical Panel well before 9 May 2016. There is passing mention of the abusive behaviour of Stuart MacDonald in the recorded history in Dr King’s report of 22 December 2016 (CB 233), but his opinion was that “the sudden termination” was humiliating, belittling, caused emotional devastation and led to suicidal ideation. There is mention of the abuse incidents in the report of Professor Dennerstein of 4 May 2024, as a component of the background provided by Behnam to her (CB 2144). Her opinion was that Behnam’s pre-existing Major Depressive Disorder (in response to his daughter’s illness and treatment) was exacerbated “by bullying in his workplace and the summary dismissal in 2016” (CB 2150). Her report does not separate the impact of the abuse from that of the later pre-termination and termination conduct, more so when considered with her overall opinion that the betrayal of trust was causative of the major impact on Behnam’s mental health, which opinion as I have explained is speculative and rests on erroneous assumptions. Moreover, there is no mention of the abuse incidents as causative of psychiatric illness, shock or distress in the Joint Expert Report of the psychiatrists (SCB 9299). They opined that the termination aggravated Behnam’s pre-existing condition.
798 Returning to Behnam’s evidence as set out in his emails of 13 and 15 May 2016, there is certainly evidence of his subjective reaction to the conduct of Stuart MacDonald to the extent of leading to an inability to continue functioning at work, he departed and sought medical assistance. His general practitioner certified him as suffering from an undisclosed medical condition and certified his unfitness for work for a short period. I am not satisfied that this evidence meets the threshold of an injury of a compensable kind when considered with the expert psychiatric evidence that Behnam was already suffering a significant degree of psychiatric distress prior to the abuse incidents and it was the termination that aggravated his condition.
799 Moreover, even if that is wrong, I am satisfied for the reasons set out in Part 16.1.3 that Stuart MacDonald did not engage in the abusive conduct because Behnam had, had exercised or proposed to exercise any of the established workplace rights. Stuart MacDonald was frustrated with the performance of Behnam in not providing accurate forecasts and in not following his directions concerning negotiation of the La Trobe University deal. Contextualised, his swearing occurred in a high-pressure sales environment where a subordinate employee was not performing. Behnam was not an office junior. He was required to deliver results for the Victorian region and was accountable for his performance to Stuart MacDonald.
800 Nor am I satisfied that Stuart MacDonald engaged in the abusive conduct (and thereby engaged in non-termination adverse action) because Behnam had made any of his prior complaints. In cross-examination, he denied he was torturing Behnam for the purpose of having him terminated (T 1244) which evidence I accept. Objectively it is implausible that Stuart MacDonald, after his appointment in April 2016, busied himself in interrogating Behnam’s prior history of complaints commencing in January 2016 and then determined to swear at him in May 2016 because of the fact of making those complaints. Plainly, he swore at Behnam because he was frustrated with his poor performance as an employee in respect of events after Stuart MacDonald became his superior manager. For the same reasons, it is implausible he did so because of any claim Behnam had to receive incentives or because he had a right to commence a legal proceeding. The former was not put to Stuart MacDonald in cross-examination, and he denied the latter (CB 2749).
801 Similarly, and for the same reasons, the evidence does not support a conclusion that these incidents altered Behnam’s position to his prejudice or amounted to discrimination. Behnam worked in a high-pressure sales environment where regional managers were expected to deliver results. He also worked in a hierarchical structure with Stuart MacDonald as his superior and he was required to act in accordance with directions given to him. Stuart MacDonald was frustrated and angry with Behnam’s inability to accept direction and with the licence fee forecasts of the Victorian region. As is correctly submitted for Technology One: “Mr MacDonald was entitled to expect that information provided to him meet a particular standard of competency”. It did not and Behnam as the Victorian regional manager was responsible. Whilst harsh language was used by Stuart MacDonald, there must be identifiable injury caused to Behnam by adopting a before and after test: Rangi v Kmart Australia Ltd [2019] FCA 1778 at [38]-[40]. And, the injury must be caused in Behnam’s employment and relate to the aspects of his position as the Victorian regional manager. There was no attempt in Behnam’s case to establish these causative links.
802 As to discrimination in employment, no comparator was identified to sustain the submission that Behnam was treated differently in comparable circumstances to another employee: Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd [2014] FCA 239 at [18], Pagone J.
803 Finally, for each of these claims, Stuart MacDonald’s evidence is that he behaved as he did because of his frustration with the performance of Behnam; his failure to accept direction concerning the final stages of negotiation of the La Trobe University deal and the poor licence fee performance of the Victorian region (T 1202-1203, 1271). He also gave evidence that he did not behave in this way for any of the multiple prohibited reasons asserted by Behnam (CB 2761). It is fanciful to suggest that Stuart MacDonald behaved as he did in May 2016 because Behnam had lodged complaints between 12 January 2016 and 11 April 2016, that is, before Stuart MacDonald was employed at Technology One.
804 Some questions were put to Stuart MacDonald during cross-examination for the purpose of eliciting admissions about other motives that he may have had for his behaviour (T 1244). In very general terms it was put that an explanation for each of the three incidents was that he “enjoyed torturing a man who you believed was about to get fired”, which was firmly denied, as were two further questions to the effect that Stuart MacDonald intended to make Behnam’s position untenable, because he had made at least two complaints about him to Adrian Di Marco. Finally, in a wrap up question, Stuart MacDonald said that the complaints made about him to Adrian Di Marco “played zero part in any motivation of any type”. He was not further pursued in relation to these matters and, in any event, the cross-examination lacked specificity in that each of the three separate incidents were not put to him to extract concessions to the effect that he acted for one or more of the pleaded prohibited reasons. In all, I accept Stuart MacDonald’s evidence as truthful.
805 That disposes of each of the non-termination adverse action claims pleaded at [71] of the Further Amended Retrial Statement of Claim. But there are two more. One is that Technology One took each of the adverse actions because Behnam proposed to exercise his right to bring legal proceedings. The other is that Technology One took adverse action because Behnam had exercised or proposed to exercise his safety net contractual entitlement. Each fails for the reasons I have set out in Part 16.
806 Accordingly, all the non-termination adverse action claims fail.
- BREACH OF CONTRACT CLAIM
807 There are interrelated aspects of this claim. The first is a claim that Technology One contravened s 323(1) by failing to pay Behnam the full amount of his contractual incentives. Technology One accepts that if the contractual claims are made out, it contravened this provision. Next there are related claims that Behnam’s employment was terminated (or non-termination adverse action was taken) because he proposed to exercise his right to seek payment of his incentive payments or because of the safety net contractual entitlement (or to avoid paying it) each contrary to s 340. In part, though not entirely, these claims depend on establishing that Behnam had a contractual right to be paid additional incentives calculated in accordance with SMS revenue for the Victorian region. There are residual claims related to unpaid incentives for Victorian PLUS, Victorian Legal Aid and Victorian Red Cross revenue.
808 I commence with the contractually claimed entitlement to be paid incentives, calculated by reference to the SMS revenue. Behnam was first employed pursuant to a formal contract entered into on or about 3 July 2006 (CB 3549). There were subsequent variations in writing on 7 March 2007 (CB 3768), 26 November 2009 (CB 4137), 12 December 2014 (CB 6284) and 13 November 2015 (CB 6829). The key document is the 26 November 2009 variation. It is in the form of a letter which includes:
I am pleased to confirm your position as State Manager with Technology One. As the terms of your employment have now changed, it is necessary to vary the terms of your Employment Agreement. This letter sets out the details of variation to your original Employment Agreement dated 3 July 2006.
Attached to this letter are Schedules 1 and 2. To the extent that any of the attached Schedules differ from your original Employment Agreement, the attached Schedules will take precedence.
….
Please be aware that in transferring to a new remuneration structure which includes a commission or incentive component that your total remuneration review will now be effected on 15 October each year in consideration of end of financial year data.
809 Schedule 1 provides:
810 Schedule 2 includes:
An incentive will be paid based upon Profit before Tax (PBT) performance for the specified Product/Business Unit. The incentive will be based on an agreed percentage of the Product/Business Units PBT performance. The final incentive for each year can only be calculated once the company’s audited financial statements are available.
In order to provide our managers with a regular income stream the company will pay a portion of the incentive in advance. In most cases this will be paid monthly.
…
No incentives will be paid following employment conclusion. Where the employment of managers at Technology One concludes prior to the date on which the retentions are paid they will also not receive that retention.
The executive chairman has the discretion in exceptional circumstances to approve variations to the criteria on which incentives are paid during the employment of a manager or on employment conclusion.
811 Behnam’s case is that in breach of the profit incentive term, Technology One failed to pay him amounts for Victorian SMS revenue between 1 October 2009 and 18 May 2016, which he calculates in the amount of $1,674,743, plus amounts for Victorian PLUS services of $252,116, Victorian Legal Aid of $74,135 and Victorian Red Cross of $199,216.
812 I have touched on Martin Harwood’s evidence concerning the SMS revenue in Part 5. A more detailed analysis is now required as the parties each submit that the clause in issue in schedule 1 of the 2009 variation is ambiguous. The ambiguity is what is meant by the incentive term: Profit Before Tax (PBT) performance for Business Unit 03 – Victoria-Service Delivery? As such, the pathway to consideration of the objective matters known to the parties prior to the November 2009 variation opens: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337 at 352; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at [46]-[51].
813 Gareth Pye, who was the financial controller of Technology One from August 2008 until October 2014 (he was then appointed as company secretary, and later and ultimately in December 2022 to the group director for strategy and planning), gave comprehensive background evidence concerning the SMS revenue issue in chief (CB 3180-3194). His evidence went unchallenged in cross-examination (T 1589-1691). In summary, prior to November 2009, the business operations were split into separate business units for internal accounting and financial management purposes. Each business unit had an appointed manager, although some individuals managed more than one unit. Each business unit had a unique profit and loss statement as a measure of financial performance. The business units were categorised by reference to function, product, service or geography or some combination of each. In July 2006 there were 45 business units and in May 2016, there were 84.
814 As of 1 June 2009, there were 62 units, comprised in eight groups. The first group comprised 12 business units corresponding with the 12 regions of the business at the time. There were corresponding references to “Service Delivery” in the name of each business unit to designate that these units comprised salespeople who directly sold software to customers in each region and were directly responsible for delivering the services to those customers. Behnam was designated as the manager of Business Unit 03 – Victoria – Service Delivery.
815 The other groups comprised Head Office, R&D Teams, Product Management Teams, national Consulting Teams, Student Management, ECM and Project Services. Student Management, ECM and Project Services were based in the Brisbane office and were managed by specialist teams in Brisbane.
816 The Student Management Group performed different functions relating to building, marketing, selling, implementing and supporting one product known as the SMS product. Until the 2011 financial year, the SMS product was treated differently to most of the other products of Technology One. This product provided a complete software package for tertiary institutions. Prior to 1 October 2010, the SMS business unit was exclusively responsible for developing the SMS product, selling it and providing follow-up consulting services. From 1 October 2010, the responsibility for selling the SMS product transitioned to the regions.
817 Technology One also had in place an internal system of royalty rules. This reflected that not every business unit earned revenue from customers. For example, Research and Development incurred significant costs in developing products but did not generate revenue. Other business units, particularly in the regions, derived revenue by selling products to customers and did not incur directly the costs of research and development. Thus, to measure the performance of each business unit, which is the relative contribution to profitability, Technology One implemented a system by which the revenue of the business was allocated between business units by allocating royalties between the business units. These were accounting entries, not cash payments. Royalties were treated as an expense of each business unit. Thus, if the Victorian region sold a product, it would then be charged a percentage of the revenue in favour of the business unit responsible for developing or managing that product. The royalty rules are a relatively complex system developed and reviewed annually.
818 In the 2009 and 2010 financial years, the royalty rules were recorded in spreadsheets. One example that Gareth Pye gives is for the 2010 year, during which 35% of licence fee revenue was reallocated to business unit 30 (Research and Development) and a further 5% was allocated to business unit 00 (Head Office).
819 Prior to the 2010 financial year, business unit 46 (STM sales) was solely responsible for the SMS product. In that year 100% of the revenue derived from the sale of the SMS product was allocated to business unit 46. Then, by the application of the royalty rules, that business unit only retained 60% of that revenue in that 35% was reallocated to business unit 36 (STM R & D) and 5% to Head Office. No part of the revenue derived from the sale of the SMS product was allocated to the profit of any region because no region had responsibility for generating a sale of the SMS product.
820 Once the royalty rules were determined for each year, they were communicated to the regional managers by delivery of a budget pack prior to the start of each new financial year. The delivery was accompanied by a covering memorandum.
821 From approximately 1 October 2010, Technology One commenced implementing a transition of the responsibility for selling the SMS product from business unit 46 to the regions, commencing with New South Wales and Victoria. However, it did not mean that business unit 46 ceased to be responsible for selling the SMS product in those regions. What did occur is that business unit 46 progressively reduced selling the SMS product and responsibility for the SMS sales transitioned to the regions. This reallocation was accompanied by a change in the allocation of revenue for those sales. To the extent that each region was now responsible for making a sale, a proportion of the revenue from the sale was allocated to it. This change was identified in the 2011 Budget Parameters and Instructions document (CB 4447). The document stated that Technology One was in the process of developing a new royalty split. The proposed adjustments were 30% for deals greater than $2,000,000, 40% for deals up to $2,000,000 and 60% for deals up to $1,000,000. A new proposal was also implemented for the payment of commissions for the SMS sales in each region. For Behnam, the proposal was for his incentive to be calculated on 10% of the SMS revenue (CB 4561).
822 That proposed structure was ultimately not adopted. Behnam’s incentive rate was not adjusted.
823 At this point, it is necessary to diverge and mention a matter that attracted attention in evidence but is irrelevant to construction of the 2009 variation. It is common ground that Adrian Di Marco in 2010, agreed to provide Behnam with a separate “side deal”, the effect of which was that the Victorian business unit was allocated 10% of the licence fee revenue for the life of the Victorian TAFE deal effective for the 2010 to 2014 financial years. Adrian Di Marco explained that this was “an act of good faith” on the part of Technology One, even though Behnam was not entitled to receive this payment (CB 2860). For present purposes, the important point is that this arrangement was not in place before the November 2009 contract variation.
824 Edward Chung provided more granular detail about the SMS transition in his evidence-in-chief (CB 2914). The transition formally commenced at the start of the 2011 financial year, that is from 1 October 2010. On and from that date, and specifically for Victoria, Behnam became responsible for the sale of the SMS product to tertiary institutions in Victoria, the sales staff who reported to Behnam became responsible for making sales of the SMS product and revenue from the SMS product sales was initially allocated to Business Unit 03, with a proportion of that revenue (40% pursuant to the royalty rules) then being re-allocated to other centralised business units, with the balance retained by Business Unit 03. The effect of these new arrangements was that from 1 October 2010, New South Wales and Victoria became responsible for new deals of the SMS product and related consulting services and revenue from those deals was then allocated to these regional business units.
825 Edward Chung’s evidence (CB 2912-2915) crisply highlights what is in issue on Behnam’s contractual claim. The calculated incentive claims for the period 2010 to 2016 concern revenue received by Technology One from tertiary education institutes for contracts entered into with Technology One for the provision of SMS services prior to 1 October 2010. That is, the contracts entitled Technology One to receive future revenue beyond the date that each contract was entered into. Gareth Pye gave evidence to similar effect (CB 3190). There is no issue about unpaid incentives for SMS revenue derived from new contracts entered into after 1 October 2010, as described in the previous paragraph.
826 In written closing submissions, Mr Hyde Page makes obvious, but significant, concessions on this issue. They are:
It is common ground that, by the time the 2009 Contract was executed on 26 November 2009, Mr Roohizadegan had gained a broad awareness that sales of SMS product had occurred in Victoria and been omitted from the Victorian financials. At the same time, however, he was disputing the correctness of this.
On 9 November 2009 Mr Roohizadegan had a meeting with Mr Harwood and Roger Phare where he protested the omission of SMS sales from the profit of the Victorian region. Mr Harwood and Mr Phare told him that SMS had always formed part of a different business unit within the First Respondent.
Later in the day on 9 November 2009 Mr Roohizadegan raised the omission of the SMS sales from the profit of the Victorian region in a conversation with Mr Di Marco, and Mr Di Marco agreed to look into the matter. Nothing then happened over the subsequent two weeks until 26 November 2009 when the 2009 Contract was executed. Mr Roohizadegan had raised an issue about the First Respondent’s compliance with his existing employment and Mr Roohizadegan was waiting for Mr Di Marco to get back to him about it.
At the time the 2009 Contract was executed the past exclusion of SMS sales from the profit of the Victorian region was not an uncontroversial part of the background that was known and accepted by both parties. The correctness of the First Respondent’s treatment of the SMS sales was very much in dispute.
827 What is controversial is the submission that Mr Hyde Page then makes – that a person like Behnam, “who signs a contract at a time when he or she has been disputing the counter-party’s adherence to a pre-existing contract, should not be taken to have agreed to the counter-party’s preferred construction of the pre-existing contract”. The error in that submission was exposed in Roohizadegan FC at [210]-[211]: what was or was not provided for under the earlier contract is irrelevant to the pleaded entitlement in the 2009 variation.
828 For the reasons that follow, it is clear that the objective background facts that were known to Behnam and Technology One prior to 26 November 2009, lead to the conclusion that no reasonable business person at the time and in the circumstances as they were would have understood that the incentive term in the 2009 variation conferred an entitlement to receive a percentage of revenue calculated on profit before tax for Business Unit 03 – Victoria – Service Delivery from SMS sales generated by Business Unit 46 based in Brisbane.
829 The starting point is the implicit concession that the submission of Mr Hyde Page accepts in the framing of his submission. Behnam had negotiated for inclusion of the SMS revenue which Technology One did not accept. It is fundamental contract law that acceptance cannot be imposed by silence: Felthouse v Bindley (1862) 11 CB (NS) 869; Latec Finance Ltd v Knight [1969] 2 NSWR 79. By close analogy, I do not accept that the parties can be taken to have objectively intended that Behnam’s position was agreed to absent communication from Technology One to that effect or some other manifestation of acceptance by conduct.
830 The important discussions occurred on 9 November 2009, at a Sales Kick-off Event on the Gold Coast. Behnam’s evidence-in-chief included (CB 87-88):
I attended a meeting with Martin Harwood and Roger Phare on the Gold Coast to discuss a number of matters including getting an iPhone. During this meeting, I raised my concern that the revenue from the Victoria TAFE SMS had not been allocated to Business Unit 03.
I was advised that SMS products are different to other products, and are “run from Brisbane”. I understood this to mean that any revenue generated from any SMS, despite the customer having their head office within Business Unit 03, would be allocated to the Corporate Unit.
I was informed that if I had an issue with such allocation of revenue, that I should discuss with [Adrian Di Marco].
Later, on 9 November 2009 the Gold Coast, I met with [Adrian Di Marco] regarding SMS, and also in regard to obtaining an iPhone. [Adrian Di Marco] reiterated what Mr Harwood of Mr Phare advised, being that SMS were different from other products, and “were run from Brisbane.”
…
I informed [Adrian Di Marco] that this approach was at odds with my contract, which did not exclude any product revenue from its allocation to my incentive payments. I further advised [Adrian Di Marco] that Mr Orchard told me that I would receive the incentive payment for the Victoria TAFE SMS in 2009. [Adrian Di Marco] said words to the following effect, “leave it with me, I will discuss this with Edward [Chung] and David [Orchard] and you should follow up with them up.”
831 In cross-examination, Behnam unconvincingly asserted that Adrian Di Marco “never said I would not get SMS revenue” (T 303), which did not answer the simple question to confirm the truthfulness of his evidence-in-chief.
832 Martin Harwood’s evidence of this discussion (in cross-examination), though vague in part, was to the effect that he recalled the discussion, Behnam raised the issue of the non-inclusion of the SMS revenue in the Victorian profit and loss calculations, expressed his view that such revenue should be included because the customer was based in Victoria and in response was told by Roger Phare that it would not be included because: “we have an entirely separate sales organisation, implementation organisation, the works for student management. It is sold by another part of Technology One which none of the regions have provenance over” (T 1132). Martin Harwood said that he “probably” said “yes, that’s my understanding”. He then gave evidence to the effect that it was his personal view that the arrangement should be altered going forward and that the reason why the SMS revenue had not been distributed to the regions earlier was (T 1133):
[T]he nature of the product, student management software, you had to have a really good in-depth understanding of the higher education sector to be able to sell the product, to be able to have a meaningful discussion with the customer, and, at that point, the only people who had that ability were in the Teresa Murphy business and they weren’t in the regions.
833 Roger Phare could not specifically recall the conversation in November 2009, but did state in his evidence-in-chief that in the first few years of Behnam’s employment he had a number of discussions about money. In particular (CB 2717):
[H]e would say that he wanted more incentives or more share options. One of the things he said was that he wanted revenue from the sale of SMS products in the Victorian geographical area to be recognised in his business unit (that is, Victorian region). Each time he raised this, I told him that this could not happen because SMS product sales formed part of a separate business unit.
834 That evidence was taken up in his cross-examination (from T 1829). He was asked to recall whether he ever explained to Behnam the rationale why SMS revenue was not included as part of the revenue of the Victorian region, and he answered (T 1831):
Yes, I did and it was very clear, and I hope that over the period of time that this has been going on, it has been come clear that it was through a different business unit that I was not responsible for, and, therefore, Behnam was not responsible for, that there was a different business unit that handled the area of student management sales end to end from sales to delivery, and, therefore, the remuneration accordingly.
835 A little later, on the same topic he said (T 1832):
We told him that student management was not included in his business unit. It was under the area of Richley Down. Having said that, we acknowledged his performance in the other areas and amended his particular salary incentive according.
Sure. Sir, if it’s possible for me to perhaps seem a bit pedantic, you said “we said”?—Adrian Di Marco and myself.
So you recall having conversations with Mr Roohizadegan that included Adrian Di Marco?—Absolutely, because, again, I think it’s documented the outcomes of those meetings was a change in remuneration structure on that, and I think you have those records.
836 Roger Phare distinguished between conversations before and after 2010. When invited to elaborate on that distinction (T 1833):
So the rationale was that as Technology grew as an organisation and I guess became more mature, my own role expanded too. It became logical that – there was no reason as we grew that student management would be siloed any longer because it was seen that we had regional salespeople and we believed, at that stage, that the product should be included in the – in the wider remit, if you like, for the regions. Playing to our strengths, in other words. And that was the rationale behind the change that happened in 2010, as well as a few other internal things that went on. So that was the rationale behind the change, right. It was saying that now we believe that the – you can be responsible for the salespeople, can be responsible for delivery of the product through the consulting teams and what have you, because we had become much more mature as an organisation. So that was the rationale behind the change.
837 Adrian Di Marco had little recollection of the 9 November 2009 conversation with Behnam. In his evidence-in-chief he referenced the evidence of Behnam:
I don’t recall the details of this conversation. However, Mr Roohizadegan, like all regional managers up until October 2010, was not entitled to revenue from SMS product sales under his existing contract. I would have put him straight had he ever made the point that he was entitled to that commission for sales for the SMS product before Oct 2010.
Instead, Mr Roohizadegan was consistently pressing me for more money including share options, bigger incentives, and a greater revenue stream (such as bringing the SMS product under the regions responsibilities). It was his nature to keep pushing the boundaries to get more for himself, and he was very persistent and usually he was ultimately successful. After Oct 2010 the arrangement was changed to include SMS product revenue by mutual agreement.
838 In his oral evidence-in-chief, Adrian Di Marco provided more detail (from T 1614). He said that he did not recall the specific 9 November 2009 conversation but did recall that he had discussions with Behnam about inclusion of the SMS revenue in the Victorian region financials. In part, he said:
Behnam had wanted for a while to have the student management revenue recognised through the region, but we didn’t sell student management through the region. It was sold from head office centrally because it was a very new product, it was a very large product, it was very complicated and it was a very complicated sales process. And so we wanted to keep it very close until we knew that the product was good enough and that we had the ability to sell it through the regions. So that was the gist of the conversations that I had with – with Behnam. But he was looking for that to – to be relocated into his region.
And what, if anything, did you say to him when he said to you that he should – that revenue should be allocated to the Victorian business unit and he should earn incentives on those amounts?—Well, that was something for the company to look at, at some time in the future once we felt that the product was ready to be sold through the region, but that wasn’t a decision that we had made, and it was still up for debate when it would happen.
And when did that happen?—It did happen subsequently. About a year later, we moved it into the region. There was quite a few regional managers that were lobbying for it to be done, and we felt that it was time to try that and do that.
839 That evidence was not traversed in cross-examination.
840 What this evidence establishes is that Behnam requested that the SMS revenue be included in the Victorian region profit before November 2009, was of the view that he had a pre-existing entitlement to its inclusion, but was consistently informed that it was revenue generated by a separate business unit and in consequence he was not entitled to have his incentive payment calculated by reference to profit generated on the sale of the SMS products. The evidence leads to the conclusion that the parties were in heated disagreement about the inclusion of the SMS revenue in the profit of Business Unit 03 prior to the 2009 variation.
841 There is no doubt that Behnam was aware prior to November 2009 that the SMS product was different to other products of Technology One, was developed and sold exclusively by a business unit in the Brisbane office and that the revenue generated therefrom was not allocated to any of the regions. That is clear from Behnam’s knowledge of the following (which self-evidently was also the knowledge of Technology One):
(a) The Technology One business was split into many business units, which he conceded in his evidence (T 283);
(b) Behnam’s responsibility from the outset of this employment was to manage and be responsible for Business Unit 03 – Victoria – Service Delivery which did not, prior to November 2009, have any responsibility for the SMS product in Victoria;
(c) Each business unit was separately assessed for financial performance on profit before tax. On a monthly basis, Behnam received a financial performance report, including on 17 November 2009 an email which attached the reports (T 264-265). Those reports included a document with the title P&L Statement for Business Unit 03 PBT (SCB 100, Doc 89c);
(d) That his incentives were calculated on profit before tax for Business Unit 03, which had not included SMS revenue (CB 83);
(e) His incentive statements detailed the calculation and did not include SMS revenue (CB 3768, 3870);
(f) The division into business units included specific units with defined functions and teams (CB 3992, document 81) and was subdivided into separate units for separate products. Although Behnam denied knowledge of document 81 (T 283), he nonetheless accepted that he was aware from at least June 2007 that there was a separate SMS business unit with separate financial reporting and accounting;
(g) That his regional business unit was not the only one responsible for selling Technology One products into Victoria. On his evidence the SMS product was not part of his sales, yet was sold into Victoria from the Brisbane office (T 292);
(h) That Business Unit 03 was not permitted to sell the SMS product to customers in Victoria, because that his unit did not have the “specialised resources” (T 258), and further, that SMS software was the responsibility of a separate unit within the Brisbane office (T 284, 286);
(i) That for approximately 40 months prior to his contract variation, profit before tax for his business unit did not include SMS revenue (T 292);
(j) The existence and effect of the royalty rules (T 256);
(k) That specific sales for SMS to Victoria TAFE were not recorded as revenue in Business Unit 03 in December 2006 (T 285) about which he unsuccessfully made representations for the inclusion of that revenue (CB 87-88);
(l) That pursuant to the royalty rules in place prior to November 2009, the regional business units were not allocated revenue from SMS sales (T 309-310); and
(m) In a document prepared by Behnam in May 2007, being his Business Plan FY 2008, there is a list of new business strategies but no mention of selling SMS products (SCB 3771).
842 Behnam carries the onus of establishing that the incentive term has the objective meaning that revenue from the sale of SMS products generated from 1 October 2009, was intended by the parties to include revenue generated from sales of that product made by a different business unit based in Brisbane, for which Business Unit 03 had no responsibility for and no involvement in the sale of that product. He has failed to discharge the onus. The objective facts as they were known to the parties at the time, in my view, clearly lead to the conclusion that the parties understood that the SMS revenue generated from sales made by Business Unit 46 was not to be included the calculation of profit before tax for Business Unit 03. The commercial purpose and object of the incentive term was to reward Behnam by a percentage applied to profit before tax derived from revenue generated by the Victorian region, as adjusted by the royalty rules. That is how reasonable businesspeople in the position of these parties at the time, and with the knowledge of the objective facts that I have set out, would have understood the incentive term.
843 It follows that the SMS contract claim fails. That leaves for determination three residual contract claims that may be dealt with succinctly.
844 The Victorian PLUS Services and the Victorian Legal Aid claims are related. Behnam’s evidence-in-chief is that he was not paid his incentives on these deals, and he provides his own loss calculation (CB 142). In contrast, Gareth Pye’s evidence-in-chief is that Behnam has already been paid the amounts due (CB 3279, 3281-3285), where his evidence comprehensively analyses the business records and exposes errors in Behnam’s calculations.
845 Given the significant difference in the evidence, it is surprising that Gareth Pye was not cross-examined on this issue. In any event, the same issue of interpretation concerning the calculation of his incentives by reference to the SMS revenue applies. On either basis, Behnam has failed to discharge his onus to establish his entitlement to these claims.
846 The Red Cross claim is to the effect that Behnam contends that he was paid an incentive but calculated by reference to only 30% of the revenue generated. Gareth Pye addresses this claim (CB 3286-3288). He explains that no person in Business Unit 03 was responsible for the deal and that the amount that was paid to Behnam by way of an incentive arose from “a one-off special payment” that was authorised by Adrian Di Marco and implemented pursuant to a series of emails commencing on 23 July 2012. Behnam’s evidence does not engage with this, and once again Gareth Pye was not cross-examined on it. For the same reasons, Behnam has failed to discharge his onus to establish this claim.
- SAFETY NET CONTRACTUAL ENTITLEMENT
847 The s 323(1) claim falls with the contract claims. But that does not exhaust the permutations which must be resolved.
848 There are variations on this theme. One is Behnam was terminated in breach of s 340 (the language of the pleading is clumsy) “because of the proposed exercise of the safety net contractual entitlement and/or the payable entitlements” which is cross-referenced to a list of concerns raised by Behnam about why he was not receiving incentive payments for SMS revenue between 24 September 2009 and April 2015. The contention is that the incentive term had resulted or would have resulted, but for termination, in Behnam becoming entitled to receive large incentive payments including from completion of the La Trobe University deal.
849 Another is he was terminated in breach of s 340 to “prevent the exercise of the safety net contractual entitlement and/or the payable entitlements”. Yet, another is that Technology One engaged in non-dismissal adverse action (the 9 May 2016 abusive meeting, the 12 May 2016 public abuse and abusive meeting, the 16 May 2016 deceptive meeting request and the 16 May 2016 dismissive response to complaint and the direction to attend work whilst on medically certified sick leave) because Behnam exercised or proposed to exercise his safety net contractual entitlement.
850 These claims are conveniently considered together. Their precise basis has proved elusive. The pleaded claims are to the effect that Behnam considered that he had a right to receive further incentive payments from the SMS deals and frequently in writing and orally agitated for acceptance of his argument (CB 86-91) (it matters not on these claims that I have determined that he was not contractually entitled to the payments). That evidence overlaps with discussions before the November 2009 variation, which I have addressed above. He was not cross-examined seriatim on the numerous oral discussions that he references. Technology One accepts in accordance with Annexure A to its closing submissions that some of the discussions that Behnam references are likely to have occurred, whilst others did not. It is unproductive for me to deal with the evidence relied on for each conversation. Many witnesses for Technology One accepted that Behnam frequently agitated for the payment of more money. For example, Edward Chung’s evidence was that Behnam “was always pushing for more and, in particular, was pushing for revenue from Vic TAFE” (T 1790). Martin Harwood accepted that Behnam was a very good negotiator, even in his own financial interest: “one of his more endearing qualities” (T 1005, 1139).
851 During the trial a dispute arose about the precise scope of this aspect of Behnam’s claim. It concerned what Technology One submitted was an attempt to introduce a new claim to the effect that Behnam was terminated because his contractual entitlement was to receive an incentive based on a percentage of profit (T 892-895. That is, because the structure of his entitlement was too generous. In the submissions that followed, Mr Hyde Page made it clear that the case goes no further than a claim that a reason for the adverse action termination was to avoid paying Behnam his contractual entitlements, not because of the way in which his contractual entitlement was structured. With that clarification, objection was withdrawn (T 894 -895).
852 Thus, the issue is whether the various forms of contended adverse action were taken because Behnam agitated for increased incentive payments or to avoid paying his incentive entitlements? The overwhelming evidence is that he was not, but it is first necessary to make some findings about an issue that particularly attracted the attention of Mr Hyde Page during the trial relating to internal reviews of the remuneration structure for regional managers. This is submitted to be relevant to the avoidance claim.
853 Mr Hyde Page in closing submissions devotes much to the avoidance claim. In summary, his submissions proceed as follows. Terminating employment for the purpose of preventing enjoyment of a future contractual economic right amounts to adverse action. The “stand-out feature” of Behnam’s incentive right is that it was uncapped and if the Victorian business continued to grow at between 10% and 15% per annum, the result for Technology One would be unsustainable. For that proposition reliance is placed on the evidence-in-chief of Stuart MacDonald (CB 2771):
I knew that Mr Roohizadegan was entitled to receive 7.5% of the profit earned in the Victorian Region. My opinion was that his remuneration structure was flawed because it meant he was not properly incentivised to grow his Region by delivering increased licence fee sales each year. I also thought his remuneration structure was unsustainable. His structure may have been suitable for growing or small market, but it was wholly unsuitable for a mature and large market.
854 What the submission fails to highlight is the next paragraph in Stuart MacDonald’s affidavit:
However, the structure of Mr Roohizadegan’s remuneration, or any other regional manager, was not an immediate concern of mine. I did not terminate Mr Roohizadegan. To the extent that it is found that I had any involvement in his termination, at no stage did I form the view that Mr Roohizadegan should be terminated because of anything to do with his income and/or incentive rights and/or entitlements. I did not see anyone else say that Mr Roohizadegan should be terminated for any reason that was related to his income and/or incentive rights and/or entitlements.
855 I return to that, and evidence to similar effect from other witnesses, later. Resuming with the submission of Mr Hyde Page, various comparisons are drawn with the projected remuneration entitlements of other senior managers, in the 2018 year, in particular Mr Edward Chung ($1,396,604) and Adrian Di Marco ($1,345,705) in comparison with Behnam’s earnings in that year of $1,595,449 (CB 7660). The submission is then developed that Adrian Di Marco was aware in April 2016 that Behnam would soon be the highest paid executive of Technology One, for reasons unconnected from his performance. Reliance is placed on an email sent by Rebecca Gibbons to Stuart MacDonald on 21 April 2016 (CB 7618) in which she provided a summary of Behnam’s actual earnings for the financial years 2013 to 2016. Detailed submissions are then made to the effect that I should reject the evidence of each of the Technology One witnesses to the effect that Behnam’s remuneration entitlements were not a reason for his termination.
856 I turn to the evidence. At the outset, each regional manager was entitled to a remuneration package comprising a base salary and incentive calculated on profit before tax (CB 7656-7666). Some time prior to the commencement of the 2016 financial year, Martin Harwood had expressed a concern to Adrian Di Marco to the effect that the existing incentive structure for the regional managers should be rebalanced because of the absence of a correlation between meeting the licence fee revenue budget and the profit before tax of the region. He expressed it this way in cross-examination (T 1050):
And your difficulty with that, as I understand it, is that you believed that this meant any general manager could continue to receive an extremely generous incentive as a percentage of the existing profit of the region even when the profit of the region did not grow and even when licence fees did not grow?—No. That wasn’t my concern.
All right. What was your concern?—My concern was very simple: the way that we incented our sales people was that they got paid on the licence revenue that they generated. The way that the organisation had structured the people – the managers that they reported to was they weren’t – they weren’t paid on licence revenue growth. They were paid on gross profit of the region.
Yes?—So – – –
HIS HONOUR: Gross or net?—Gross. It wouldn’t have been net. I’m not – your Honour, I may be misleading you there. You would have to ask the financial guys whether it was on net or gross. But it was paid on profit and there was no – there was no disincentive if, in fact, you made your profit number but you didn’t – you didn’t meet your licence revenue number. So think of that logically. At the end of the day the only people within the whole organisation who would have owned accountability, if we failed to make our licence sales numbers, would be the CEO and the OO for sales and marketing because nobody else – it didn’t matter. To me, that was not the ideal way to structure incentives for regional managers and I thought there should be a more balanced way of doing so, which happened eventually.
857 Martin Harwood favoured a restructure (T 1052). From the “early part of 2016”, Edward Chung considered potentially altering the remuneration structure for the regional managers (T 1818). His thoughts were nascent and did not progress at that stage. He well understood that no change could be effected without the approval of Adrian Di Marco. Stuart MacDonald commenced his employment on 11 April 2016. His initial view about the remuneration structure is set out above. In cross-examination, when asked an open question expanding on his evidence-in-chief he said (T 1225):
If you think that something is undesirable and should be changed, and sacking Mr Roohizadegan would achieve that objective, then isn’t it a – one of the reasons to sack Mr Roohizadegan?—Absolutely not. A couple of things: (1), all of the regional managers had the same construct so it was really a goal of mine over time to reset the construct to something that was more relevant to what we were trying to do, which is sell licence. So in – the process took, I don’t remember, but a year at least to implement. So it had nothing to do with any one individual. It was addressing what I believed to be a flawed construct. The quantum that they were paid was never in question. It was the construct of it that was the item to be addressed. And, (2), irregardless of all of these issues, I still had a number I had to achieve. I still had to do sales. I had to achieve a target. So it’s my goal to have as many people there that I believe could get us there as possible.
858 Stuart MacDonald said that he sought the information concerning Behnam’s remuneration from Rebecca Gibbons (the email of 21 April 2016) because, although he had only been in the job for two weeks, he had noticed “a disproportionate amount of noise surrounding the Victorian Region and Mr Roohizadegan when compared with the other Regions and managers” (CB 2738). Following receipt of the email from Rebecca Gibbons, he sought further information from her, including a more detailed breakdown of the profit and remuneration of the other regional managers (CB 2738). Rebecca Gibbons provided the requested information in a further email of 21 April 2016 sent at 5:14 pm (CB 7656). Her email attached a breakdown of profit, including licence and consulting fees, for each region.
859 Technology One accepts that having received this information it is likely that Stuart MacDonald had a discussion with Martin Harwood about the structure of the remuneration for all the regional managers (T 1232). The content of what was discussed was not revealed in Stuart MacDonald’s evidence and Martin Harwood, beyond accepting that he must have met with Stuart MacDonald, could not recall what was discussed (T 1043). The next relevant meeting between the executive team members occurred on the morning of 26 April 2016, to discuss the Rebecca Gibbons email, which I have addressed in detail in Part 15.11.4.
860 Mr Hyde Page submits it is likely that during the meeting on 26 April 2016, Stuart MacDonald and/or Martin Harwood expressed broad views to the effect that the incentive entitlements of the regional managers, including those of Behnam, were unsatisfactory. That submission is not supported by the evidence: in particular, there is no reference to a discussion of that type in the notes made by Edward Chung (CB 7806), and, as I have set out in detail, it is obvious that the focus of that discussion was the content of the Rebecca Gibbons Email and not the remuneration and entitlements of Behnam.
861 Moreover, and more to the point, each of Martin Harwood (CB 3166, T 1084), Stuart MacDonald (CB 2771-2772), Adrian Di Marco (T1662) and Edward Chung (CB 2990) denied that the remuneration entitlements of Behnam were discussed at the meeting on 26 April 2016. Martin Harwood gave the clearest evidence about that, in cross-examination which although he was directed to the meeting of 3 May 2016, as will be seen, traversed all relevant meetings (T 1084):
MR HYDE PAGE : Mr Harwood, do you recall if, at the meeting on 3 May, you offered the opinion that Behnam should be sacked because of his incentive structure?—I did not.
You gave evidence a moment ago about your – the defect you perceived in his incentive structure and that of the general managers more broadly?—Yes.
But you say that you said nothing about that?—I’m lost now. I’m sorry. I said that I had a problem with the incentive plan for the regional managers and it was something that we, as a company, needed to fix. I never, at any stage, singled out Mr Roohizadegan, as far as that was concerned. It was a statement about that I believed we needed to change the REM policy for new managers that we brought aboard. I wasn’t suggesting a change for the ones that were aboard already and I believe that, when the change finally happened, it was only applied to new managers.
Do you say that that remark you just made – that evidence you just made applies in respect of all the meetings you attended about Mr Roohizadegan’s termination?—What’s the question, sorry?
I am asking if you, at any of the meetings where the termination was discussed – – -?—Yes.
– – – volunteered an observation about remuneration of Mr Roohizadegan or the regional managers?—Absolutely not.
Thank you. Did you regard Mr Roohizadegan’s entitlement to incentives based on profit as a reason to terminate him?—No.
862 I accept the evidence of Martin Harwood, as I do each of the other witnesses, who denied that Behnam’s remuneration was discussed at the meeting of 26 April 2016.
863 On 28 April 2016, there was a quarterly review meeting. Edward Chung made a note of the meeting in the form of an email on 29 April 2016 (CB 7851). The note is somewhat cryptic. It is in the form of a series of headings and many matters are listed. In part it refers to “cost controls”, the need to improve margins and “align rms/cd to oo – short term profit, EPRs same”. In addition to Edward Chung, a draft minute of the meeting records the attendees as Adrian Di Marco, Gareth Pye and Paul Rogers (SCB 7891_004). Adrian Di Marco did not recollect attending this meeting (T 1662). Edward Chung did not address this meeting or his notes in his evidence-in-chief. The document was introduced during the cross-examination of Adrian Di Marco. Edward Chung was not asked questions about it.
864 Some elliptical questions were put to Adrian Di Marco to the effect that there was a discussion about a proposal to alter the incentive entitlements of the regional managers (T 1661-1662, 1732-1733). The cross-examination was desultory. Adrian Di Marco insisted at one point that, as he had no recollection of the meeting, and that the questions should be addressed to Edward Chung (T 1733). Despite the note, Mr Hyde Page frames a closing submission that Technology One was actively considering adjusting the incentive requirements of the regional managers and that I should reject the evidence of Adrian Di Marco that he was not concerned about Behnam’s payments and entitlements, which though generous, were designed to provide an incentive to continue to grow the licence fees (CB 2781). A further submission to the effect that I should reject the evidence of each of Martin Harwood, Stuart MacDonald and Edward Chung that the incentive entitlements of Behnam were not considered in making the decision to terminate his employment was also put.
865 I reject this submission. There is no proper basis for it in that the author of the notes was not asked questions about it and there is much other evidence, that I referenced above and accepted, that Behnam’s remuneration entitlements were not a reason for the termination. The submission also suffers from the difficulties that it fails to explain how Technology One could have unilaterally changed Behnam’s contractual entitlements absent his consent.
866 Following Behnam’s termination, there is evidence that by early June 2016, Stuart MacDonald and Edward Chung had discussed a potential change to the incentive arrangements for regional managers (SCB 426). The essence of that proposal was to set the incentive as a percentage of licence fees, provided that a performance measure of profit was achieved (T 1245). Technology One accepts that this proposal was “likely prompted” by Behnam’s termination. It was progressed in August 2016 in the form of a presentation to the board by Stuart MacDonald (SCB 1283-1303). In broad terms the proposal was that 70% of the incentives would be calculated on licence fee performance and 30% on profit before tax, subject to a minimum of achieving at least 60% of licence fee budget. What the board decided is not in evidence, but there is evidence that sometime in the latter part of 2016, Adrian Di Marco authorised a change to the incentive structure as proposed by Stuart MacDonald (T 1818, FSCB 11,095). An aspect of this scheme was that for existing regional managers, the proposed change was adjusted such that if an existing manager accepted the new arrangement, he or she would not be financially worse off, which Stuart MacDonald explained in detail (T 1225-1226). Thus, this post event evidence establishes the falsity of the submission that steps were in play to reduce the remuneration entitlements of regional managers prior to 18 May 2016, and that was a reason for Behnam’s termination.
867 There are some residual submissions of Mr Hyde Page that can be quickly addressed. One is that at the meeting on 3 May 2016, it is likely that there was a discussion to the effect that Behnam’s remuneration entitlements were too generous. I reject the submission as unsupported by the evidence. Another is that Behnam was terminated to deprive incentives that would have been payable on completion of the La Trobe University deal. Behnam calculated those entitlements in his evidence, at a little over $970,000 (CB 139, 9029). Those calculations are not based on business records, in contrast with the alternative calculations prepared by Gareth Pye (FSCB 9425) from the business records of Technology One (FSCB Doc 949). I accept the evidence of Gareth Pye.
868 The additional incentives that would have become payable are calculated in the Technology One closing submissions, which I accept as accurate based on the disclosed methodology. The amounts would have been $111,248 in June 2016, $18,568 in July 2016, $9867 in August 2016 and $10,061 in September 2016. Gareth Pye undertook those calculations for the purpose of this proceeding. There is no evidence that anyone in Technology One considered these additional incentives when the decision was made to terminate Behnam’s employment. In any event, and once again, there is significant evidence from numerous Technology One executives to the effect that Behnam’s remuneration entitlements did not form part of the decision-making: in particular, the evidence of Adrian Di Marco (T 1662, CB 2845, 2856-2857). Further, Adrian Di Marco did not recall Behnam ever raising with him, or of being told by someone else, that he was entitled to unpaid incentives. His evidence was to the effect that if this issue had been raised, he would have ‘put him straight because he was not entitled to it” (T 1731). I accept that evidence.
869 For all these reasons, the termination because of incentive claims fail.
- THE FLAWED COUNTERFACTUAL
870 Although it is unnecessary to address this, the evidence about what would have happened if Behnam had not been unlawfully terminated was very extensive and the parties have framed detailed submissions on this question. In deference to the time spent on this issue, I make the following brief findings.
871 Behnam’s damages claim in part assumes that he would have continued in employment until retirement at age 65 on 24 December 2027. For that, there is a calculation of lost base salary of approximately $2.645 million. The obvious error in that calculation is that there is no attempt to discount the value of future entitlements. Next there is a calculation of unpaid incentives to retirement of $39.71 million, again without discounting. There is another substantial claim of approximately $1.9 million for the lost opportunity of taking up, and then selling shares acquired through the exercise of options. These claims do not exhaust the contended future entitlements as pleaded.
872 Those calculations rest on acceptance of the large proposition that, but for the unlawful termination, Behnam would have remained with Technology One or would have relocated to another industry participant with a similar remuneration structure. Two competing remuneration experts, Paul Simms for Behnam and David May for Technology One addressed this issue. John-Henry Eversgard provided expert evidence for Behnam about the value of future share options. Chris Katehos also provided calculations of future loss based on assumptions that Behnam’s employment would have continued until retirement.
873 In closing submissions, Mr Hyde Page accepted that the task is to assess quantum by determination of what would most likely have occurred if Behnam’s employment had not been unlawfully terminated, and/or he had not been subject to the non-termination forms of adverse action. He further accepted, correctly, that discounts are usually applied to account for contingencies and the vicissitudes of life. He identifies as the four most likely scenarios that Behnam would have:
(a) remained in his position as regional manager with Technology One on his existing remuneration terms;
(b) secured similar employment in the same industry;
(c) been terminated at a later date, in which case he would have suffered a lesser impairment and, after a period of recuperation, would have resumed employment on similar terms in the same industry; and
(d) been terminated lawfully, in about May 2016, and would have suffered the same degree of permanent incapacity.
874 The final scenario is put as the least likely one.
875 Technology One, in contrast, submits it should be concluded that it was “a near certainty, or almost inevitable” that Behnam would have been terminated for lawful reasons at sometime between 18 May 2016 at the earliest on 30 May 2017 the latest. The impact of a lawful termination, consistently with the psychiatric evidence, is that Behnam would have been rendered totally and permanently incapacitated for employment by reason of psychiatric injury.
876 The correct approach to the counterfactual requires a finding as to what would likely have happened absent the contravening conduct: Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 at [28]-[30], Allsop CJ, Mansfield and Siopis JJ; Transport Workers Union of Australia v Qantas Airways Ltd (Compensation Claim) [2024] FCA 1216; (2024) 334 IR 187 at [67]-[84], Lee J.
877 The overwhelming effect of the evidence that I have accepted is that as of 18 May 2016, Behnam’s continued employment as the regional manager for Victoria of Technology One was in peril. His licence fee performance was unsatisfactory. He was not considered by Martin Harwood, Edward Chung or Stuart MacDonald as having the necessary skills and ability to take the Victorian region forward. I have made multiple findings concerning Behnam’s inability to accept the management structure of Technology One, which had evolved considerably since he was first employed in 2006. When Behnam was first appointed as the Victorian regional manager, he did have considerable authority to run “his business” as he thought fit. He performed exceptionally in the early years in achieving licence fee growth. However, the business evolved over the ensuing years. It had to. More rigid management structures and procedures were developed. More senior managers were appointed in his direct reporting line. What is obvious is that Behnam did not and could not adapt to the changing management structure of the business.
878 Behnam found these changes challenging, as evidenced by my numerous findings to the effect that he could not accept the direction and management decision-making of his more senior managers. He regarded their decision-making as interfering with his ability to conduct the Victorian region as he would wish. The view had been formed by April 2016, that Behnam was not a suitable person to remain in the position of Victorian regional manager, in particular by Martin Harwood and Edward Chung.
879 It is likely that Behnam’s employment would have been terminated well before April 2016 but for the close relationship that he had with Adrian Di Marco. Whilst that relationship continued, and despite the views of Martin Harwood, Edward Chung and Stuart MacDonald, Behnam’s employment was secure subject to his ability to continue to deliver licence fee growth. He did not do so in the 2014 and 2015 financial years.
880 Behnam lost the personal confidence of Adrian Di Marco in April 2016, in consequence of the Rebecca Gibbons Email. And the content of that email brought to a head the crisis, which had been brewing for some time, in the Melbourne office of Technology One.
881 Added to this is the significant personal difficulties that Behnam faced in consequence of his diagnosis of Major Depressive Disorder, related to his daughter’s illness, which was first recorded by Dr White in his report of 9 November 2015. The Medical Panel in January 2016, noted that Behnam commenced the Supreme Court proceeding (which he did in 2014) and in it alleged that he suffered nervous shock and a Major Depressive Disorder arising from her alleged mistreatment in September and October 2010. Each of Dr White and the Medical Panel consistently recorded that, despite his condition, Behnam was working longer hours as a compensating mechanism, sometimes up to 18 hours per day. He admitted to Dr White that he became “absolutely distracted about my daughter”, is “not efficient”, suffers from “severe concentration problems” and is forgetful. Dr White further noted that Behnam “has developed a very significant degree of post-traumatic embitterment regarding his daughter’s situation, and until now has refused psychiatric or psychological treatments”. The Medical Panel recorded as part of his stated history that he was then “much more irritable than he used to be at work and can quickly be roused to anger and speak harshly to people” and “he is more demanding and aggressive at his workplace now”. His condition was so severe, that the Medical Panel recorded suicidal ideation in late 2011 and an attempted suicide in 2012.
882 In the Joint Expert Report of the psychiatrists, it was agreed that prior to May 2016, Behnam’s mental state “would likely have impacted upon his capacity for employment” and that “his mental state likely resulted in him being sensitive to the perceived bullying and inappropriate management actions”. The experts further recorded that his symptoms “were fluctuating and there was improvement overall in the full hand of Major Depressive Disorder symptoms, prior to the termination of employment” and he “remained functioning at work to a large extent because of his obsessive-compulsive personality traits. In fact his personality structure helped him to maintain his occupational functioning”. Mr Wood submits that it should be concluded that there was no significant improvement in Behnam’s condition prior to his termination. Ultimately, I have not found it necessary to resolve that issue. For present purposes, this evidence is relevant to the ability of Behnam to continue to function at a very high level and in a high-pressure sales environment.
883 What cannot be gainsaid is the obvious link between Behnam’s decline in licence fee performance in 2014 and 2015 and his then state of mental health, of which Technology One was ignorant because he chose to withhold this information from his employer.
884 Add to this, the respective adverse assessments of Behnam’s management of Martin Harwood, Stuart MacDonald and Edward Chung. Although the Rebecca Gibbons Email was the final straw in the decision-making of Adrian Di Marco, even he was losing confidence in Behnam well before he read the email. But Adrian Di Marco hesitated, in his language he procrastinated and should have made the decision sooner.
885 Moreover, Behnam knew his tenure was precarious. He said so in his email to Adrian Di Marco of 15 May 2016 where he asserted that ”people from Executive” had an agenda for his departure and was “prepared to have that discussion” (CB 8551), having earlier said to Stuart MacDonald on 6 May 2016: “if you want me to resign just tell me where to sign” (CB 8087).
886 I find that it is inevitable that Behnam’s employment would have been terminated for perfectly lawful reasons, by no later than May 2017 which is when Edward Chung replaced Adrian Di Marco as the CEO. Edward Chung did not have the same loyalty to Behnam. I also find that it is likely that Behnam’s employment would have been terminated well before that time, particularly because of the underlying management issues in the Melbourne office as evidenced by the Rebecca Gibbons Email. By April 2016, it is clear in my view that Behnam did not have long to go as the Victorian regional manager of Technology One. I find that he would have been terminated by the close of the 2016 Technology One financial year – 30 September 2016.
887 Additionally, there is the question whether a lawful termination would have had the same catastrophic psychiatric effect as the termination that was effected on 18 May 2016, assuming it was unlawful, which I have analysed and made findings about in Part 18. It is obvious that a lawful termination of Behnam, a person for whom life was his work, would have had catastrophic psychiatric consequences.
888 Drawing these findings together, even if I had found that the adverse action claims had been made out (particularly the termination), I would not have accepted the contention that Behnam would have remained in employment with Technology One for very long. And similarly, once one accepts the psychiatric impact of a lawful termination, I would not have accepted the case that Behnam would have obtained alternative employment in the same industry and upon similar terms. The large assumptions that underpin the damages claim cannot be reconciled with the objective facts.
- RESULT
889 The proceeding must be dismissed. There may be an application to engage the discretion at s 570 and I will set a timetable in that event.”
Roohizadegan v Technology One Ltd (No 6) [2025] FCA 1619