Roohizadegan v TechnologyOne Limited - [2020] FCA 1407 - FCA 2020 case summary — Zoe

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Roohizadegan v TechnologyOne Limited

[2020] FCA 1407

Federal Court of Australia|2020-10-02|Before: Kerr J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2020-10-02

Before

Kerr J

Catchwords

176 ALR 693 - finding that neither textual nor contextual considerations supported Respondents' preferred construction - breach of contract established - damages awarded

Source

Original judgment source is linked above.

Catchwords

176 ALR 693 - finding that neither textual nor contextual considerations supported Respondents' preferred construction - breach of contract established - damages awarded

Judgment (77 paragraphs)

[1]

The Applicant's application made pursuant to the Fair Work Act 2009 (Cth) (the Fair Work Act) be upheld.
Pursuant to s 546 of the Fair Work Act: (a) the First Respondent pay a penalty of $40,000.00; and (b) the Second Respondent pay a penalty of $7,000.00.
Pursuant to s 546(3)(c) of the Fair Work Act, the penalties imposed pursuant to Order 2 be paid to the Applicant.
Subject to Order 9 in respect of pre-judgment interest to be awarded thereon, pursuant to s 545 of the Fair Work Act the First Respondent pay to the Applicant the sum of $756,410.00 as compensation in respect of his forgone share options.
Pursuant to s 545 of the Fair Work Act, the First Respondent pay to the Applicant the sum of $2,825,000.00 as compensation for his future economic loss.
Pursuant to s 545 of the Fair Work Act, the First Respondent pay to the Applicant the sum of $10,000.00 as compensation analogous to general damages.
In respect of the Applicant's associated claim in contract against the First Respondent there be judgment for the Applicant.
Subject to Order 9 in respect of pre-judgment interest to be awarded thereon, the Applicant be awarded damages for breach of contract in the sum of $1,590,000.00.
The parties are to confer with the aim of providing the Court with agreed proposed orders as to what, if any, amounts should be awarded by way of pre-judgment interest additional to the compensation and damages awarded pursuant to Orders 4 and 8, no later than 14 days from the date of publication of these reasons.

[2]

Table of contents Synopsis of this case [1] History and background findings: things start well [6] Mr Roohizadegan suffers personal crisis and ongoing Depression [24] TechnologyOne remains unaware of the extent of Mr Roohizadegan's distress [32] Mr Roohizadegan's performance at work does not materially decline notwithstanding his (later diagnosed) depressive disorder [40] The core of Mr Roohizadegan's dismissal case [46] The statutory presumption and the Respondents' case [63] Dramatis personae [82] Chronology [83] The evidence and the credit of the principal witnesses [86] Principles applied [86] Benham Roohizadegan [93] Applicant's submissions [156] Respondents' submissions [157] Consideration [158] Adrian Di Marco [188] Applicant's submissions [201] Respondents' submissions [202] Consideration [203] Martin Harwood [267] Applicant's submissions [297] Respondents' submissions [298] Consideration [299] Stuart MacDonald [332] Applicant's submissions [351] Respondents' submissions [352] Consideration [353] The other witnesses [376] Other witnesses called on behalf of Mr Roohizadegan [384] Mr Kinkade [384] Mr Mandie [386] Mr Ivancic [390] Ms Hamson [420] Mr Price [426] Mr Luczek [433] Mr Dalton [437] Mr Thompson [440] Mr David MacDonald [452] Mr Di Guilmi [461] Mr Pantano [467] Mr Davey [474] Other witnesses called on behalf of the Respondents [478] Mr Preston [478] Mr Jarman [503] Mr Dugina [523] Mr Finch [537] Mr Metcalfe [548] Mr Irwin [573] Mr Orchard [585] Mr Arnott [597] Mr Pye [615] Ms Carr [641] Ms Gibbons [695] Mr Whiteley [746] Mr Chung [750] The expert witnesses [816] Executive search and recruitment [816] The expert medical evidence [827] Consideration of expert medical evidence [844] The single area of disagreement [858] Method of termination [873] The expert accounting/financial evidence [876] Did Mr Roohizadegan make the complaints he pleads? [898] Who was the decision maker and when was the decision taken? [913] Do the Respondents displace the statutory presumption that the adverse action they took against Mr Roohizadegan was for a prohibited reason? [967] Remedies for breach [1007] Pecuniary penalties [1010] Compensation for loss and other orders pursuant to s 545 of the Fair Work Act [1021] Forgone share options [1023] Future economic loss [1026] Mitigation [1033] Contingencies [1034] General damages [1065] Special damages [1076] Contract claim [1077] Costs [1113]

[4]

History and background findings: things start well 6 Mr Roohizadegan commenced employment with TechnologyOne as State Manager for Victoria on 3 July 2006. 7 When Mr Roohizadegan joined TechnologyOne, it was then a relatively smaller company. It had only a modest footprint in Victoria. However, under Mr Di Marco's leadership it was setting ambitious growth targets. Mr Di Marco's evidence is that, together with his former direct report Roger Phare, Mr Roohizadegan had built the Victorian region "from very small to very large" (T519, line 29). 8 Mr Di Marco's evidence is that in 2006 TechnologyOne had 377 employees, its annual revenue for the 2005/06 financial year (which I interpolate from the evidence before me then ended on 30 June 2006 but was later changed to end, for TechnologyOne's accounting purposes, on 30 September 2006) was $66.485 million, and licence fees were $17.150 million. By 2016, TechnologyOne had grown significantly. It had about 1000 employees, its annual revenue for the 2015/16 financial year (ending 30 September 2016) was $249 million, and licence fees were $56 million. 9 During his pre-employment interview Mr Di Marco told Mr Roohizadegan that if he was successful during his time at TechnologyOne, he "would make a lot of money". That proved to be an accurate prediction. 10 Mr Roohizadegan's gross income increased from $208,932.00 in the 2006/07 financial year to $845,128.00 in the 2015/16 financial year. Most of that increase was attributable to incentive payments; Mr Roohizadegan's base salary increased only from $165,000.00 to $192,000.00 (see as submitted for by Mr Roohizadegan's counsel at [888] below) during the same period. 11 Mr Roohizadegan's initial employment agreement (dated 3 July 2006) provided that he was to be paid a base salary and a bonus or "incentive" based upon the Profit Before Tax (PBT) performance of the Victorian "region". 12 It is uncontentious that TechnologyOne operated for some purposes as if it were divided into semi-autonomous components. Each component (however described) reported to the company's head office, located in Brisbane. It is similarly uncontentious that Mr Roohizadegan was appointed to be responsible for the management of the Victorian region. 13 Mr Roohizadegan's employment contract was first varied on 7 March 2007. The terms of his employment were subsequently substituted for by a written agreement dated 26 November 2009. That agreement specified that, in addition to his base salary, Mr Roohizadegan was to be paid an incentive based on "PBT performance for Business Unit 03 - Victoria - Service Delivery". The percentage specified was 7.5% from 1 October 2009 to 30 September 2010 and 7% thereafter. 14 It is uncontentious that in the 26 November 2009 agreement Mr Roohizadegan's title, "State Manager", remained the same. The Respondents however submit that, inter-alia, the change to the name "Business Unit 03 - Victoria - Service Delivery" to describe the component of TechnologyOne in respect of which PBT was to be measured for the purpose of calculating his incentives is of significance. Mr Roohizadegan takes issue with that proposition. He says that he remained (as he had always been) entitled to be paid an incentive based on his agreed share of PBT for all sales TechnologyOne made in the geographical region of Victoria. 15 There were further variations to Mr Roohizadegan's employment agreement, dated 12 December 2014 and 13 November 2015 respectively. It is however common ground that those variations have no bearing upon the disposition of this matter. 16 According to Mr Roohizadegan, the total revenue for the Victorian region of TechnologyOne grew from approximately $8.4 million for the 2005/06 financial year to approximately $46.9 million for the 2014/15 financial year (Ex A30, CB132). That evidence is not in dispute. 17 Mr Roohizadegan received the TechnologyOne Chairman's Award in 2010, 2012, 2013 and 2014. His uncontested evidence was that each year that award is given to only four to six of TechnologyOne's approximately 800 to 1,000 employees. 18 It is thus undisputed that for the greatest part of his service, Mr Roohizadegan's employment was of significant mutual financial benefit to both him and TechnologyOne. I take it to be in recognition of that mutuality that Mr Roohizadegan was granted share options in the First Respondent in 2013, 2014 and 2015 in addition to his contracted remuneration. Such a benefit was not granted to any other State Manager. 19 Mr Di Marco and the First Respondent acknowledge that until the circumstances that had led him to dismiss Mr Roohizadegan arose, Mr Di Marco had viewed him as a "real hunter". Mr Di Marco accepts that Mr Roohizadegan had brought in some big deals for TechnologyOne. In his evidence-in-chief Mr Di Marco described Mr Roohizadegan as having been "really hardworking", committed and loyal to the business (T519, lines 30-32). 20 Mr Di Marco qualified that laudatory description in his oral evidence by observing that from 2014, he had begun to question whether Mr Roohizadegan might be the right person to take the business forward. 21 Nonetheless, Mr Di Marco gave oral evidence that until the events which led to him to terminate Mr Roohizadegan's employment occurred in 2016 he had remained confident that if Mr Roohizadegan had support from, and was mentored by, his direct report (TechnologyOne's National Operating Officer for sales) "we could make that work" (T519, lines 29-39). 22 He had thought bringing in a new National Operating Officer would ensure success in that regard (T520): It would assist Behnam. Someone who could mentor Behnam, who could bring the disciplines and help Behnam with those disciplines, and also help … structure Victoria for the next stage of growth, so to bring someone in to help him and to help the other regions, and I was confident that combining that with the other good things that Behnam did, because he was very hard working, very committed, very loyal and a good hunter, you know, that we could make this work, and so I was very positive at that point through 2015, 14-15, that this could work. 23 I note that there is one significant qualification I ought to record with respect to these introductory observations. At paragraph [11] of Mr Di Marco's affidavit (Ex R31) he deposes that "over time" he had become aware that others saw Mr Roohizadegan differently. He deposes that as early as December 2007 he had received a complaint from a long serving employee, Mr Bernard Morris, about Mr Roohizadegan. I return to that specific evidence later in these reasons in regard to my findings as to Mr Di Marco's credibility.

[5]

Mr Roohizadegan suffers personal crisis and ongoing Depression 24 On the surface, things were thus going very well at work for Mr Roohizadegan. However, it is uncontentious that from late 2010 he had come to grapple with a self-perceived burden of guilt. 25 In September 2010, Mr Roohizadegan's then 14 year old daughter became ill (T159). He did not go to the hospital with her at that time. He had thought it vital to finalise an important deal on behalf of TechnologyOne before the end of the company's financial year (T163). It is not in contest that as a result of that decision Mr Roohizadegan experienced extreme feelings of guilt about his then lack of involvement in his daughter's care. 26 It is uncontentious that Mr Roohizadegan's daughter was hospitalised for full time care in late 2010 after she had been diagnosed with Kawasaki disease (T162). She had required open-heart surgery in January 2011 (T161). 27 Mr Roohizadegan's evidence is that outside of the work environment, his feelings of guilt had a significant impact on his family and his personal life. Mr Roohizadegan escaped his pain in work. 28 Mr Roohizadegan identified his feelings of guilt as stemming from his inappropriately having prioritised his work for TechnologyOne over his daughter's life and health. It is therefore perhaps cruelly ironic that Mr Roohizadegan's evidence is that in order to avoid that distress, work became the one safe place where he could "escape". He therefore increased his already long working hours (T163). 29 Outside of work however, Mr Roohizadegan could not escape his grief. He became emotionally closed off from his wife. Predictably, that gave rise to tensions within their marriage. Mr Roohizadegan gave evidence, which I accept, that at various times the marital relationship had been on the verge of breaking down. Mr Roohizadegan also experienced repeated thoughts of suicide. On at least one occasion he had taken steps, ultimately not implemented, directed towards that end. 30 The Respondents' counsel Dr Spry's cross-examination of Mr Roohizadegan proceeded on the premise that his having suffered feelings of guilt after his daughter had become ill was not in dispute. 31 Mr Roohizadegan's evidence is that he had told Mr Di Marco about his daughter's grave illness shortly after becoming aware of its seriousness. However, he had he kept silent about his own suffering.

[6]

TechnologyOne remains unaware of the extent of Mr Roohizadegan's distress 32 I proceed on the basis that beyond confirming to his work colleagues from time to time that he remained concerned about his daughter's health, Mr Roohizadegan was careful not to reveal to anyone at TechnologyOne the depth of his private turmoil. Being able to focus on the practical problems of work without anyone at TechnologyOne knowing about his damaged condition allowed him to hide in his safe place, numb to his grief and pain. 33 There is no evidence at all to suggest that Mr Di Marco, or anyone else at TechnologyOne, at any time in the years that followed had the least inkling that Mr Roohizadegan was suffering from or had suffered a psychiatric illness (being a depressive disorder, as was the conclusion of the experts who gave evidence in this trial) until after he had been summarily dismissed. The Court has no reason to doubt the evidence that Mr Di Marco gave in describing what occurred after the meeting at which Mr Roohizadegan's employment was terminated: Dr Spry: Did he come back, or did he just leave? Mr Di Marco: He talked to Kathy on the way out, and then he left, so I was very surprised with the whole way the meeting had gone. It was not what I expected. Kathy then talked to me. She said that he had made some concerning comments, something about jumping off a bridge. I didn't believe it, you know. I was not aware of any mental health issues that Behnam had. They had never been raised. I didn't know about that, so, to me, I couldn't see why he would jump off a bridge. I mean, he's paid $1 million a year, you know. He's paid to deliver and perform. If you don't, you leave, and we separated as nicely as possible. Why would you do that? So I didn't believe it, but I said to Kathy, "Still, you need to follow up and you need to make sure he's fine, just in case, and keep me informed." And that was basically it. 34 Mr Chung, who at the time had been TechnologyOne's Chief Operating Officer and had known Mr Roohizadegan for several years prior to his dismissal, gave evidence under cross-examination that when he had been told that Mr Roohizadegan had spoken of suicide after being dismissed his immediate reaction had been that Mr Roohizadegan was trying it on. I reject that that was a cruel observation. Rather, while perhaps bluntly expressed, that was simply what Mr Chung thought to be the most plausible explanation for Mr Roohizadegan's statement. In common with everyone else with whom Mr Roohizadegan had worked at TechnologyOne, Mr Chung had been given no reason to suspect that Mr Roohizadegan did not enjoy robust mental health. It is only in retrospect that it seems so. 35 Sustaining his workplace as a place of safety where he could escape his otherwise incapacitating depression required Mr Roohizadegan not only to hide any symptoms of overt distress from his employer, but also to remain highly functioning in a demanding role. I am satisfied that to a very significant degree Mr Roohizadegan accomplished both of those objects. 36 I accept however that it is implausible that Mr Roohizadegan could have been capable of hermetically sealing off his work-life from the impact of his distress. Dr White, a psychiatrist, examined Mr Roohizadegan on 4 November 2015 in connection with other legal proceedings that he and his daughter were then bringing in which each had claimed damages on the basis that certain medical practitioners who were alleged to have misdiagnosed her had been negligent. Dr White recorded Mr Roohizadegan telling him: They [TechnologyOne] don't know about my suicidal tendencies but I've been told in the past four years that I could have done better. I haven't been performance managed yet but I have to work longer hours because I get absolutely distracted about my daughter. I'm not efficient. Severe concentration problems. I forget things and I send the wrong emails to people, repeatedly getting into trouble with my boss because I misjudge situations. 37 Although Dr White's note appears from its dating to have been made from memory a few days after his in person consultation, I accept that Mr Roohizadegan expressed himself to Dr White substantially to that effect. 38 However, two things are to be observed about what Mr Roohizadegan reported to Dr White. First, to the extent that Mr Roohizadegan told Dr White that he had suffered a deficit in concentration there is unchallenged evidence that he had adopted adaptive strategies in that regard such as working longer hours and making notes. As I have earlier noted, those strategies were demonstrably successful in achieving their object of compensating for those deficits: at least insofar as Mr Roohizadegan continued to be regarded as an outstanding performer (see below at [40]-[45]). It was for that reason that his work colleagues never recognised him to have suffered a psychiatric illness or injury. 39 Second, while it can be accepted that Mr Roohizadegan told Dr White about his getting into trouble with his then boss (being Mr Martin Harwood) Mr Roohizadegan was then unaware of certain matters as have emerged in this proceeding. The evidence that has emerged as to Mr Harwood's conduct and motivations suggests there may be an alternative explanation for Mr Roohizadegan having found himself "in trouble" with his boss: see below at [302]-[331].

[7]

Mr Roohizadegan's performance at work does not materially decline notwithstanding his (later diagnosed) depressive disorder 40 I do not understand the Respondents to ask the Court to find that Mr Roohizadegan's long established, and only later diagnosed, depressive disorder caused a material decline in his performance at work. In any event, I am satisfied that it did not. 41 It is uncontentious that Mr Roohizadegan's condition first manifested itself in late 2010, after his daughter had become ill. 42 Mr Roohizadegan's receipt of the TechnologyOne Chairman's Award in each of 2012, 2013 and 2014 is entirely inconsistent with his work performance having fallen off. It is equally inconsistent with Mr Roohizadegan having been granted share options in 2013 and early 2015, after he had complained to Mr Di Marco that his performance should entitle him to an equity interest in the company. Mr Roohizadegan was not the passive recipient of TechnologyOne's general largess. He was always astute to ensure that his contribution to the success of TechnologyOne be acknowledged in hard economic terms. Indeed, in his evidence-in-chief Mr Di Marco describes Mr Roohizadegan as having been a constant complainer: Behnam complained from the day he started at TechnologyOne. He complained from day one that the salary that we had offered him and that he had agreed was not enough and I had to change it. He complained about options. He complained about staff. He complained so much. You will see it through all the papers, and the last three or four months … I couldn't care less about a complaint. All I cared about is his ability to perform, number 1, and number 2, that his behaviours were acceptable. But his complaints were totally irrelevant to the whole thing. And if Behnam had been the right person, he would still be there. 43 As Mr Di Marco's evidence implies, I am entitled to be satisfied that had Mr Roohizadegan not been a strong performer he would have been given very short shrift. Instead, I infer that Mr Di Marco yielded to Mr Roohizadegan's demands for additional financial rewards because he was a strong performer whose services he wished to retain. 44 The evidence also is clear that Mr Di Marco put up with Mr Roohizadegan's practice of bypassing his direct reports to raise any concerns he had that touched on the success of the Victorian region directly with him. Mr Di Marco's affidavit evidence on this point was as follows: Behnam never reported directly to me, but always to one of the managers referred to in the paragraph above. Notwithstanding this, Behnam frequently emailed me about a range of issues, and when he was in Brisbane, he would often ask to speak with me. I would agree to see Behnam when he was in Brisbane as I thought he was working hard to grow TechnologyOne's business in Victoria. Behnam escalated lots of things to me, more than any other State Manager. I did not encourage him to do this, and as time went by, it became a major concern to me how often he was escalating matters to me which should have been discussed and addressed with his manager. (Ex R31, [10]). 45 I discount Mr Di Marco's evidence to the extent that it might suggest that he had sought to counsel Mr Roohizadegan not to raise matters directly with him. Mr Di Marco accepted that Mr Roohizadegan had expressed appreciation of his willingness to meet him one on one whenever he came to Brisbane (T613, lines 3-4). There is no evidence before me as would entitle me to find that Mr Di Marco ever disabused Mr Roohizadegan of his understanding that his conduct in escalating his concerns was appropriate. I conclude that Mr Di Marco's willingness to have routinely allowed Mr Roohizadegan direct access to him was because he had accepted that Mr Roohizadegan was, and remained until his dismissal, significantly responsible for TechnologyOne's sales growth and increased profits in Victoria: a large and important part of its national market.

[8]

The core of Mr Roohizadegan's dismissal case 46 Putting aside Mr Roohizadegan's contractual claim, this proceeding thus turns on why, notwithstanding their prior mutually beneficial history, in 2016 TechnologyOne decided to terminate Mr Roohizadegan's employment. In closing submissions his senior counsel, Mr Tracey (junior counsel being Mr Minson), abandoned reliance on Mr Roohizadegan's pleadings insofar as they assert breaches of the Fair Work Act by TechnologyOne unrelated to Mr Roohizadegan's dismissal (T1214, lines 26-31, 39-47). 47 Mr Roohizadegan's case therefore is confined to the claim that he was dismissed for the following prohibited reasons, contrary to s 340 of the Fair Work Act: • Seven instances of his exercising his workplace rights by making complaints in relation to his employment: in particular, complaints as to his having been bullied; • His proposed exercise of his right to bring legal proceedings under a workplace law; • His proposed exercise of a safety net contractual entitlement; and • His having a safety net contractual entitlement. 48 I note in that regard that in closing submissions Mr Tracey also indicated that the Applicant did not press pleaded claims that he had been dismissed for other reasons (being his taking sick leave; being temporarily absent from work; and having a mental disability) (T1217, lines 15-39). 49 Mr Roohizadegan's evidence is that as a result of his dismissal he suffered a profound mental breakdown. Whether his dismissal caused that breakdown, or whether it was merely a manifestation of his earlier depressive disorder from which he had continued to suffer after his daughter's illness, is the subject of contested expert evidence to be discussed later. It is however not in dispute that after he was dismissed Mr Roohizadegan became, and remains, incapable of ever working again. 50 The relevant statutory provisions upon which Mr Roohizadegan's claims are based are those provided for in ss 340 and 341 of the Fair Work Act as follows: 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4-1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. 341 Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. 51 Insofar as there are multiple reasons for the taking of adverse action, s 360 provides: 360 Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 52 In his Further Amended Statement of Claim Mr Roohizadegan pleads that he made seven complaints in relation to his employment, and that these were individually or severally the reason for his dismissal or were included as a reason for that action. Mr Tracey submits that Mr Roohizadegan was able make those complaints "in relation to his employment" pursuant to TechnologyOne's "Open Door Policy" (Ex A32, CB 3553-33554) and its "Workplace Bullying Policy" (Ex A80). 53 Assuming the Court finds that Mr Roohizadegan did make those complaints, I do not take Dr Spry to submit that he was not "able" to make them "in relation to his…employment". 54 That concession is appropriate. I will be brief in explaining why I accept that to be the case, because I do not take the conclusion to be in issue. 55 Mr Roohizadegan's contract of employment referred to TechnologyOne's policies and procedures as setting out the company's expectations of how its employees were to conduct themselves. Clause 13 of his contract relevantly provided as follows: 13.1 To help our business operate lawfully, safely and efficiently, we have policies and procedures, which set out how all employees are to conduct themselves and processes, which are to be followed. You will be expected to follow these policies and procedures current at the time. Our company wide policies and procedures can be accessed on our intranet. It is incumbent on you to be familiar with all our policies and procedures. Serious breaches of our policies and procedures current at the time could result in termination of your employment. 13.2 To meet the changing environment in which we operate, it will be necessary to change these policies and procedures from time to time. You will be given notice of the changes and will be required to follow the change policies and procedures. 56 I am satisfied that TechnologyOne's "Open Door Policy" and its "Workplace Bullying Policy" (as are in evidence as exhibits A32 and A80) are not disputed to have been applicable at the relevant time. They provide an explicit basis for the Court to be satisfied that Mr Roohizadegan was "able to make a complaint" as he claims he did, inter-alia, about his having been bullied in relation to his employment. 57 Having regard to the terms of Mr Roohizadegan's contract and those policies, I am satisfied Mr Roohizadegan had the entitlement upon which he relies. My conclusion in that regard is consistent with the reasoning of Dodds-Streeton J in Shea v TRUenergy Pty Ltd (No 6) [2014] FCA 271 at [640]. 58 I am satisfied for those reasons that Mr Roohizadegan possessed and was capable of exercising a relevant "workplace right". 59 He was accordingly protected by s 341(1)(c)(ii) against adverse action being taken against him for the reason that he had made a complaint in relation to his employment. 60 The same applies with respect to any complaint Mr Roohizadegan made in good faith regarding his contractual entitlements. In that regard I respectfully adopt the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 at [19]-[20]: Under the general law, an employee has a right to sue his or her employer for an alleged breach of the contract of employment. A suit may be regarded as the ultimate form of complaint. Accordingly, in our opinion, an employee is "able to make a complaint" about his or her employer's alleged breach of the contract of employment. That ability is "underpinned by" (to use Dodds-Streeton J's expression in Shea) the right to sue, and extends to making a verbal or written complaint to the employer about an alleged breach of the contract. Further, an employee who alleges that his or her employer has contravened a statutory provision relating to the employment is "able to make a complaint" within s 341(1)(c)(ii) of the FW Act. That right or entitlement derives from the statutory provision alleged to have been contravened. The ability encompasses making a complaint to the employer or an appropriate authority about the alleged contravention, whether or not the statute directly provides a right to sue or make a complaint. 61 Again, I do not apprehend the Respondents to take issue with that proposition. 62 I further take the Respondents to accept that, to the extent that Mr Roohizadegan did exercise a workplace right by complaining inter-alia about his being bullied by one or more other employees of TechnologyOne or about his safety net contractual entitlements, the presumption provided for by s 361(1) of the FWA applies in these proceedings. In any event, for the reasons that follow I so find.

[9]

The statutory presumption and the Respondents' case 63 The terms of s 361 of the Fair Work act are as follows: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 64 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 (Barclay) at [50] French CJ and Crennan J - while acknowledging that Mason J's remarks had been directed to an earlier expression of the statutory presumption - adopted as applicable to its current expression his Honour's observation in General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 (Bowling) at 617 that: the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge. 65 That understanding of the purpose of the provision has been repeatedly reaffirmed: see, for example, Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893 per Banks-Smith J at [12]. 66 In respect of the pleaded allegation that Mr Roohizadegan was dismissed for the reason that, or reasons including that, he had exercised his workplace rights, TechnologyOne thus has the burden of displacing the statutory presumption provided for by s 361(1): assuming the Court finds that he did make the complaints he alleges to persons with authority to address those complaints within TechnologyOne. 67 The Respondents' case is that Mr Di Marco was the sole decision-maker with respect to Mr Roohizadegan's dismissal. 68 The Respondents do not suggest that Mr Roohizadegan's dismissal was not relevantly the taking of "adverse action". They simply contend that Mr Roohizadegan's dismissal was for different reasons to those alleged by Mr Roohizadegan. It had nothing to do with his having exercised any workplace right. 69 If "adverse action" is taken as a result of a decision that has been made by an individual within a corporation, the identification of the reasons for the corporation taking the adverse action requires an inquiry focussed on the actual mental processes of the relevant individual who made that decision: Barclay at [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 (BHP Coal) at [7] (French CJ and Kiefel J), [85] (Gageler J). 70 Barclay establishes that an employer will not be liable for a breach of the Fair Work Act simply because he or she has dismissed an employee in awareness that that employee has exercised a protected workplace right. An employer contravenes the Fair Work Act, and liability is imposed, only if their employee's exercise of that right was the reason or part of the reason for their having taken that adverse action. A court is therefore required to make findings regarding the decision maker's actual reasons. What those reasons are is to be determined from all of the facts established in the proceeding, and inferences properly drawn from them. 71 Section 361 however requires the Court to conclude that the reason the employee has alleged was his or her employer's reason for taking adverse action against him or her was in fact the reason for that action, unless the employer can establish that the adverse action was not taken for that alleged prohibited reason. Proof in that regard is on the balance of probabilities: Barclay at [56] per French CJ and Crennan J, citing Gibbs J in Bowling at 239. 72 In State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441 at [32], Tracey and Buchanan JJ summarised (in terms which I respectfully adopt) the following propositions as having been established by Barclay: • The question is one of fact. It is: "Why was the adverse action taken?" • That question is to be answered having regard to all the facts established in the proceeding. • The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made. • It will be "extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer." • Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable. • If, however, the decision-maker's testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361. 73 In BHP Coal at [93] Gageler J held that to escape liability, having regard to the presumption, an employer must "prove that the act or omission having the character of a protected industrial activity [as was relevant in that instance] played no operative part in its decision". 74 However, in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 a Full Court of this Court held at [100]: The orthodox approach to dealing with allegations of adverse action said to be engaged in "because" of a particular circumstance requires the party making such an allegation to establish the existence of the circumstance as an objective fact. If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason. As has already been noted above … s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is "a substantial and operative factor" in the respondents' reasons for taking the adverse action (citing Barclay at [62] (French CJ and Crennan J) and [104] (Gummow and Hayne JJ)). (Citations omitted except where expressly set out). 75 Although I remain challenged to understand how the conclusion stated in the final sentence of that passage can be reconciled with the operation of the statutory presumption, my failure in that regard is of no consequence; the outcome that the Full Court reached, which their Honours expressed as being required by Barclay, is binding on me. I thus proceed on the basis that if the Respondents establish on the balance of probabilities that Mr Roohizadegan's pleaded instances of exercising his workplace rights (assuming the Court finds they were made) were not individually or collectively a "substantial and operative" reason for his termination then even if those pleaded instances were a factor or factors in his employer's decision to dismiss him Mr Roohizadegan will fail to make good his case that he was terminated from his employment for a prohibited reason. 76 In the present case, the Respondents submit that the evidence entitles the Court to conclude that Mr Di Marco was the sole decision maker responsible for Mr Roohizadegan's termination. On their behalf Dr Spry submits that the Court should accept Mr Di Marco's evidence that he dismissed Mr Roohizadegan exclusively for the following reasons: (1) The licence fees in the Victorian region (for which Mr Roohizadegan was responsible) were not growing; (2) Concerns had been raised by Mr Roohizadegan's team, which was a "team in crisis"; and (3) Mr Roohizadegan had been unable to work well with three different managers within a two-year period (T594-596). 77 Dr Spry submits that the Court should accept Mr Di Marco's evidence that none of the complaints as the Court might find Mr Roohizadegan to have made, whether about bullying or his contractual entitlements, played any part in TechnologyOne's decision to dismiss him. 78 For reasons that I will later explain I accept the Respondents' submission that Mr Di Marco was, ultimately, the sole decision maker in respect of Mr Roohizadegan's dismissal. 79 However, for the reasons I further give I reject the proposition that I am entitled to conclude on the balance of probabilities that his termination was not for the reasons he alleges or did not include those reasons. 80 More specifically I am unpersuaded the Respondents prove, on the balance of probabilities, that Mr Roohizadegan's complaints about having been bullied, inter-alia by his two most recent direct reports, Mr Martin Harwood and Mr Stuart MacDonald, were not a substantial and operative reason for Mr Di Marco's decision to terminate Mr Roohizadegan's employment. 81 Accordingly I have concluded that Mr Roohizadegan is entitled to rely on the presumption provided for by s 361 of the Fair Work Act.

[10]

Dramatis personae 82 Before turning to my reasons for reaching those conclusions, I should identify the key dramatis personae and their roles at TechnologyOne during the period material to these proceedings. Doing so will allow reference to be made to those individuals in these reasons without extensive explication: Mr Benham Roohizadegan The Applicant, employed from 3 July 2006 as State Manager for Victoria and later as Regional General Manager (incorporating Tasmania) from February 2015 until 18 May 2016, based in Melbourne. Mr Adrian Di Marco The Second Respondent, Executive Chairman and Chief Executive Officer at TechnologyOne, based in Brisbane. Mr Di Marco stood down from the role of CEO on 23 May 2017. Mr Boris Ivancic Employed at TechnologyOne as Regional Sales Manager for the Victorian Region from February 2016 to January 2017. Appointed in a caretaker role as Regional Manager reporting to Mr MacDonald after Mr Roohizadegan's termination. Mr Lee Thompson Employed as Operating Officer, Sales and Marketing at TechnologyOne from January 2014 to October 2014. Mr Roohizadegan's direct report for that period. Mr Martin Harwood Employed as Operating Officer, Sales and Marketing at TechnologyOne from late 2014 to 11 April 2016. Mr Roohizadegan's direct report for that period. For a period thereafter he shares responsibility for that role with Mr Stuart MacDonald. Mr Stuart MacDonald Employed as Operating Officer, Sales and Marketing at TechnologyOne from 11 April 2016 to 23 May 2017. Mr Roohizadegan's direct report, until the latter is summarily dismissed by TechnologyOne. Ms Rebecca Gibbons Employed at TechnologyOne from August 2011 to May 2017 as HR Business Partner responsible for sales, marketing, corporate services, products and solutions. Ms Kathryn Carr Employed at TechnologyOne, initially as HR specialist from 16 May 2011 and then in the role of HR Director in the two years prior to her resignation on 31 March 2017. Mr Edward Chung Employed at TechnologyOne as Chief Operating Officer from February 2016 to 22 May 2017, and for 16 months prior to that as Operating Officer Products and Solutions, and prior to this appointment Operating Officer Corporate Services and Chief Financial Officer. Currently employed by TechnologyOne as its Chief Executive Officer. Appointed to that role on 23 May 2017, replacing Mr Di Marco. Mr Richard Metcalfe Employed at TechnologyOne for approximately nine years as State Manager, Sales and Marketing for Tasmania. Appointed by Mr Harwood on 16 March 2015 also to serve as Regional Sales Manager for Victoria. His appointment in that respect is terminated on 8 February 2016. Mr Peter Sutching Employed at TechnologyOne as Products and Local Government General Manager: a position of equivalent seniority within TechnologyOne to that of Mr Roohizadegan.

[11]

Chronology 83 To allow the Court to focus its reasons on the core issues in dispute without the need for prolix background, I will now set out a chronology of events. In the majority of instances there is no significant dispute as between the parties that the events recorded in this chronology occurred. Subject to further explication in these reasons and to the qualification below, what is stated in the chronology serves as the Court's findings. 84 Where the chronology refers to an event in dispute as between the parties, it is qualified by being identified as a "claim". The matters so identified are not findings. They are recorded so that the events in dispute, to be the subject of later discussion, can be placed within their historical context. 85 The chronology also identifies in bold text when the bullying complaints on which Mr Roohizadegan relies as the relevant exercise of his workplace rights are alleged to have occurred. It similarly identifies in bold text the occasion when, on the Respondents' case as advanced, Mr Di Marco made his decision to terminate Mr Roohizadegan's employment. Mid 2006 Mr Roohizadegan has one or more pre-employment interviews with Mr Di Marco (Ex A6, CB131-132). 3 July 2006 Mr Roohizadegan commences employment at TechnologyOne in the position of State Manager Victoria (Ex A6, CB131). His contract provides that his remuneration is to include a base salary package plus an incentive bonus "based upon Profit Before Tax (PBT) performance" to be "constituted from an agreed percentage of the Region's PBT performance" (Ex A30, CB559). 20 October 2006 Mr Roohizadegan has a post-placement review. He raises concerns regarding not being entitled to share options (Ex A30, CB608-613). 6 December 2006, 15 December 2006, 19 January 2007 Mr Roohizadegan discusses his remuneration with Mr Di Marco. He requests share options in telephone conversations and sends follow-up emails (Ex A6, CB133; Ex A30, CB627-632). 7 March 2007 Mr Roohizadegan's contract of employment is varied to increase his incentive payments (Ex A30, CB703-704). In or around 9 November 2009 Mr Roohizadegan meets Mr Harwood, Mr Phare, and Mr Di Marco on the Gold Coast. Mr Roohizadegan claims that his entitlement to receive commissions for sales of the company's Student Management Services (SMS) product is discussed. He claims that thereafter he "continued to make regular enquiries" regarding his incentive payments with TechnologyOne's Executive Team (Ex A6, CB141-143). 26 November 2009 Mr Roohizadegan's contract of employment is varied. As varied, it refers to his being entitled to an incentive based on "Profit Before Tax (PBT) performance for Business Unit 03 - Victoria - Service Delivery". Increased rates of incentive for the future years are agreed (Ex A30, CB872-876). 17 June 2010 Mr Roohizadegan meets Mr Speed, Mr Phare, Mr Harwood and Mr Di Marco (Ex A6, CB142; Ex A30, CB938). Mr Roohizadegan claims his entitlement to revenue from SMS is discussed. Emails are sent to follow up (Ex A6, CB142; Ex A30, CB939-940). September 2010 Mr Roohizadegan's daughter falls ill (T161). November 2010 Mr Roohizadegan advises TechnologyOne of his daughter's illness (Ex A9, CB1084-1088). January 2011 Mr Roohizadegan's daughter undergoes open heart surgery (T161). 8 April 2011 Mr Pye emails Mr Roohizadegan information regarding TechnologyOne's commission policy. Mr Roohizadegan makes a handwritten note on a printed copy of that email. His note is: "Where is SMS?! Regional P&L?? told to wait … Year End!" (Ex A37, CB1173). 29 April 2011 Mr Roohizadegan emails Mr Pye regarding his concerns relating to his entitlement to incentives on SMS revenue (Ex A6, CB142; Ex A30, CB3027). 23 April 2012 Mr Roohizadegan claims that Mr Di Marco becomes angry with Mr Harwood after Mr Roohizadegan complains to him about Mr Harwood interfering in his business by stopping the termination of an underperforming employee (T169, lines 10-22). 24-25 April 2013 Mr Roohizadegan sends an email to Mr Di Marco requesting approval for share options to be granted to him without time restrictions. Mr Di Marco emails Mr Chung asking him to make arrangements (Ex A30, CB3519-3520). August-September 2013 Mr Chung sends a letter to Mr Roohizadegan making an offer to him of share options (Ex A30, CB3567-3571). Further offers are made in 2014 and 2015 (Ex A30, CB3899-3906). 29-30 September 2013 Email and telephone correspondence is exchanged between Mr Roohizadegan and Mr Di Marco concerning share options (Ex A6, CB134; Ex A30, CB3597-3598). February-October 2014 Mr Thompson becomes Mr Roohizadegan's manager. Mr Thompson (twice) gives Mr Roohizadegan an "A rating" for his performance pursuant to TechnologyOne's "Leaders Guide: ABC Ratings" performance assessment system based on performance against quota (T457; Ex A14, CB9636). April 2014 Mr Roohizadegan and Mr Harwood come into conflict regarding Mr Roohizadegan's decision to escalate a customer complaint from Warrnambool Shire Council to Mr Di Marco. Emails are exchanged in that regard (Ex A30, CB3765-3733). October 2014 Mr Harwood is appointed as TechnologyOne's Operating Officer for Sales and Marketing. He replaces Mr Thompson as Mr Roohizadegan's direct report (Ex R65, CB473). January 2015 Mr Roohizadegan receives an email from Mr Pye advising him that he has been granted additional share options (Ex A6, CB134; Ex A30, CB4112-4113). February 2015 Mr Roohizadegan is promoted by TechnologyOne from the position of State Manager for Victoria to the position of Regional General Manager. The terms of his contract of employment are otherwise unaltered (Ex A30, CB4155-4156). March 2015 Mr Harwood appoints Mr Metcalfe to the position of Regional Sales Manager for Victoria, ostensibly to assist Mr Roohizadegan to manage his increased responsibilities. Mr Roohizadegan claims that he is not consulted by Mr Harwood about Mr Metcalfe's appointment or his suitability for that position (T177-187). Mr Metcalfe reports not only to Mr Roohizadegan but also to Mr Harwood (T889). 16-17 June 2015 Ms Carr receives a complaint about Mr Roohizadegan's approach to interviewing a candidate for employment, Ms Breen. Ms Carr copies that email to Mr Di Marco, who asks Mr Roohizadegan about his alleged behaviour. Mr Roohizadegan responds to explain his conduct (Ex R22, CB4246-4251). 15 June 2015 Mr Roohizadegan is made aware of a decision by Mr Metcalfe and Mr Harwood to terminate the employment of Mr Con Tsalkos. He claims that it had been his prior understanding that Mr Tsalkos was to be placed on a performance management plan (Ex A6, CB154-155). 18 June 2015 Mr Roohizadegan emails Mr Harwood, cc'ing Mr Di Marco, questioning Mr Harwood's reasons for terminating Mr Tsalkos. He claims in his email that Mr Harwood had made that decision without any involvement on his part. He complains that he "cannot run [his] region in parallel with a fifth column" (Ex R12, CB4274-4275). 26 June 2015 Mr Di Marco responds to Mr Roohizadegan's email of 18 June 2015. He states that he has "recruiters telling [him] they will not put good sales staff to us in Victoria" He informs Mr Harwood "the revolving door has to stop" and that he is holding him accountable (Ex R13, CB4304). 5 September 2015 Ms Carr begins to prepare a script and communication plan for Mr Roohizadegan's termination based on conversations she had at that time with Mr Harwood (Ex R61, CB462-463; Ex R62, CB4349-4353). The reason(s) for that plan coming to nothing are not before the Court. 12 January 2016 Mr Harwood emails Mr Roohizadegan and Mr Metcalfe regarding their sales forecasts for Victoria, stating that the region "cannot go backwards for the fourth year in a row" (Ex R8, CB4677). Mr Roohizadegan replies, challenging the factual premise of Mr Harwood's email (Ex R9, CB4763-4765). 13 January 2016 Mr Harwood emails Mr Roohizadegan (cc'ing Mr Di Marco) with respect to their email exchanges of the previous day. He says "this stuff can wait until you are feeling better and we can get together to figure out how we fix the problem" (Ex R16, CB4682). 20 January 2016 Mr Di Marco asks to meet Mr Harwood to discuss the issues arising out of Mr Harwood's 12-13 January 2016 emails. Mr Harwood advises Mr Di Marco, inter-alia, that in his view Mr Roohizadegan has "lost his mojo", and that if the situation does not improve he will "have to go" (Ex R33, CB4722). 21 January 2016 Mr Harwood rejects Mr Roohizadegan's preferred candidate as the replacement for Mr Metcalfe as Regional Sales Manager for Victoria (T178-179; Ex A6, CB155-156). Mr Harwood and Mr Roohizadegan then agree that Mr Ivancic should be appointed to fill that role. 28 January 2016 Emails are exchanged between Mr Roohizadegan and Mr Harwood as to whether or not Mr Ivancic should be paid a guaranteed commission (Ex R18, CB4941-4946). Mr Roohizadegan requests a meeting with Mr Di Marco to discuss not only that issue but also the performance of the Victorian region more generally. Mr Di Marco schedules a meeting with Mr Roohizadegan for 3 February 2016 (Ex A6, CB156; Ex A30, CB4871-4887, CB4812-4820, CB4839-4842). 1 February 2016 Mr Roohizadegan claims that Mr Harwood demands of him that he cancel his scheduled meeting with Mr Di Marco (Ex A11). 2 February 2016 Mr Roohizadegan claims Mr Harwood threatens him that if he does not cancel his meeting with Mr Di Marco, one of them will have to go (Ex A11). 3 February 2016 Mr Roohizadegan meets with Mr Di Marco in Brisbane (Ex A12, CB4938). Mr Roohizadegan claims that he complained to Mr Di Marco about Mr Harwood having undermined him in his role in managing the Victorian region. He claims he informed Mr Di Marco that Mr Harwood had threatened him that if he did not cancel the meeting he had scheduled with Mr Di Marco, then one of them would have to go (T176, line 41-T177, line 14). Mr Roohizadegan pleads (at paragraph [9] of his Further Amended Statement of Claim) that his doing so was an exercise of his workplace right to make a complaint in relation to his employment. Mr Roohizadegan claims that Mr Di Marco then brought Mr Harwood into the meeting. He claims that Mr Di Marco told both of them that he thought the world of each of them (T117, lines 9-33). Mr Roohizadegan claims that after the meeting had concluded, Mr Di Marco spoke to him in private. He claims Mr Di Marco reassured him that he was doing nothing wrong (T180, lines 39-42). He claims Mr Di Marco explained that he had had to show Mr Harwood that he needed him as well (T180, lines 33-36). He claims Mr Di Marco asked him to build a relationship with Mr Harwood. Mr Roohizadegan claims that when after their meeting he later had seen Mr Harwood, Mr Harwood had threatened to "scrutinise" him until he left TechnologyOne. He claims Mr Harwood said to him words to the effect that while Mr Roohizadegan may have won a battle, he would win the war (T182, lines 4-9). February 2016 Mr Ivancic replaces Mr Metcalfe in the position of Regional Sales Manager for Victoria (Ex A5, CB223). 11 February 2016 Ms Marie Phillips informs Mr Roohizadegan that he will not be permitted to attend the LG Professionals Conference run by TechnologyOne as he had routinely attended for many years previously (Ex A6, CB162). 24 February 2016 Ms Carr emails Mr Roohizadegan, cc'ing Mr Harwood, regarding a negative review about Mr Roohizadegan's interviewing style that had appeared in "Seek". Mr Roohizadegan responds to Ms Carr denying any impropriety (Ex R61, CB462; Ex R62, CB5015-5016). 31 March 2016 There are communications between Mr Roohizadegan and Ms Phillips regarding her having directed him not to attend the LG Professionals Conference. Those emails are later forwarded to Mr MacDonald in April, after his appointment (Ex A30, CB5491-5498). 11 April 2016 Mr MacDonald replaces Mr Harwood in the position of Operating Officer for Sales and Marketing. In that capacity Mr MacDonald becomes Mr Roohizadegan's direct manager. Mr Harwood remains jointly responsible in that capacity for an initial overlap period. The length of the overlap period is in dispute, but extends to at least 27 April 2016 (T193, T362-363, T971, T1109). 12 April 2016 Mr Roohizadegan complains to Mr Pye about Mr MacDonald interfering with one of his responsibilities, being the management of relations with the Bass Coast Shire Council (a potential TechnologyOne customer in Victoria) (Ex A6, CB152; Ex A30, CB5749-5755). 13 April 2016 Mr MacDonald (in a phone conference in which Mr Harwood also participates) tells Mr Roohizadegan to not attend a demonstration by TechnologyOne to the Bass Coast Shire Council (Ex A6, CB163-164; Ex R56, CB438-439). Mr Roohizadegan expresses concern regarding that instruction in an email sent to Mr Macdonald, Mr Harwood and Mr Di Marco. Mr Roohizadegan also complains in his email that Ms Phillips and Mr Peter Sutching are marginalising him (Ex R19, CB5355-5356). 14 April 2016 The Bass Coast Shire demonstration takes place. As instructed, Mr Roohizadegan does not attend (Ex R47, CB5421-5427). TechnologyOne's presentation is undertaken by Mr Dugina. 18-19 April 2016 Ms Gibbons visits TechnologyOne's Melbourne offices. Ms Gibbons has a series of meetings (claimed by her to be unscheduled and unplanned) with a number of TechnologyOne's Victorian sales staff. All of those meetings take place outside the company's Melbourne offices. Several of the sales staff with whom she meets make complaints about Mr Roohizadegan. Ms Gibbons takes no notes during those conversations (T715-716). 20 April 2016 Ms Gibbons meets with Mr Roohizadegan. Ms Gibbons does not inform him that he has been the subject of complaints by some members of TechnologyOne's Victorian sales team. Mr Roohizadegan tells Ms Gibbons that he is being marginalised by, inter-alia, Ms Phillips and Mr Sutching (T183-184; T725). Mr Roohizadegan claims that Mr Gibbons agrees that Mr Sutching's conduct amounts to bullying (T184; T725). Mr Roohizadegan tells Ms Gibbons he is considering taking legal action (T184). Mr Roohizadegan pleads (at paragraph [18A] of his Further Amended Statement of Claim) that this was a second instance of his exercising his workplace right to make a complaint in relation to his employment. Following their meeting Ms Gibbons sends Mr Roohizadegan an email including a link to TechnologyOne's bullying policy (T726; Ex A80). Mr Roohizadegan then sends an email to Mr MacDonald expressing concern that Ms Phillips and Mr Sutching are preventing him from doing his job (Ex A30, CB5491-5498). He receives no response (Ex A6, CB163). 21 April 2016 Ms Gibbons sends two emails to Mr MacDonald. The first of Ms Gibbons' emails attaches a "breakdown of profit, inc licence fees, consulting etc for each region". The second provides him with her advice regarding Mr Roohizadegan's earnings since FY13. She reports to Mr MacDonald that "whilst profit has increased, the licence fees in the region have decreased." Ms Gibbons attaches Mr Roohizadegan's resume to her second email (Ex A65, CB5558-5568; Ex A66, CB5569-5570). 22 April 2016 Mr Roohizadegan refers to a forthcoming meeting with Melbourne University he is planning to attend. Mr MacDonald responds that he thought only he and Mr Harwood would be taking that meeting and that he would "prefer if in the future we follow my direction" (Ex A6, CB166; Ex A30, CB5656-5661). 24 April 2016 Ms Gibbons sends an email to Ms Carr to inform her about the complaints made against Mr Roohizadegan by the sales staff of TechnologyOne with whom she had met in Melbourne over the period of 18-20 April 2016. Ms Gibbons' email also explains that Mr Roohizadegan had told her he was considering making a bullying claim and taking legal action against Peter Sutching (Ex R41, CB431; Ex R42, CB5576-5577). 25 April 2016 Ms Carr forwards Ms Gibbons' email of 24 April 2016 to Mr Di Marco, copying in Mr Chung and Mr Harwood (Ex R62, CB5584). She then forwards it to Mr MacDonald (Ex R58, CB5595). Mr Di Marco claims he was "flabbergasted" upon receiving that email (T518). His evidence is that it was one of the worst emails he had received in business in 35 years (T518) and that upon reading it he had decided that Mr Roohizadegan had to go (T519). On the Respondent's case (Respondents' Closing Submissions paragraph [135]) Mr Di Marco decided to dismiss Mr Roohizadegan from his employment with TechnologyOne at this time. Mr Di Marco requests that Ms Carr set up a meeting of TechnologyOne's Executive Team to discuss Ms Gibbons' email (Ex R58, CB5595-5597). She does so. Mr MacDonald emails Ms Carr in response asking whether they can meet beforehand to "sync our message" (Ex R58, CB5595). Mr Roohizadegan sends an email to Mr MacDonald querying why he has been instructed not to attend his meeting with Melbourne University. His email complains about being bullied. He asks "I need to understand what my job is please" (Ex R21, CB5673-5697). Mr Roohizadegan pleads (at paragraph [25] of his Further Amended Statement of Claim) that this is the third instance of his exercising his workplace right to make a complaint in relation to his employment. Mr Roohizadegan emails Mr Di Marco to complain about decisions being made behind his back. He tells Mr Di Marco about the instruction he has been given by Mr MacDonald not to attend the meeting with Melbourne University (Ex A77, CB5656-5661). Mr Roohizadegan pleads (at paragraph [23] of his Further Amended Statement of Claim) that this is the fourth instance of his exercising his workplace right to make a complaint in relation to his employment. 26 April 2016 Mr Di Marco replies to Mr Roohizadegan's email of the previous evening saying "leave it with me to talk with Stuart [MacDonald]" (Ex A77, CB5656). TechnologyOne's Executive Team assembles to discuss the complaints Ms Gibbons has reported as having been made by staff in the Melbourne office about Mr Roohizadegan. Ms Carr attends as an invitee. Ms Carr's evidence is that Mr Di Marco commences the meeting by stating "This guy has to go" (T1029, line 10). Ms Gibbons is called into the meeting to speak to her email. She does so and, after answering questions, leaves. Ms Carr advises the Executive Team that TechnologyOne should not act against Mr Roohizadegan on the basis of mere allegations. There ought to be an investigation of any complaints made against him (T1027). Ms Carr's evidence-in-chief is that Mr Di Marco responds that he doesn't want there to be any investigation (T1027). At the conclusion of the meeting Mr MacDonald is authorised to terminate Mr Roohizadegan's employment but is instructed he is not to do so before Mr Roohizadegan has concluded, inter-alia, a financially significant deal with La Trobe University on which he is working (T530-531). After the meeting of the Executive Team Ms Carr begins to update the communications plan for Mr Roohizadegan's termination that she had commenced drafting at Mr Harwood's request in September 2015 (Ex R61, CB463). 27 April 2016 Mr MacDonald visits the Melbourne offices of TechnologyOne and meets Mr Roohizadegan, both for the first time (T974, T978). 3 May 2016 TechnologyOne's Executive Team convenes for a second time to discuss Mr Roohizadegan's future (Ex R64). Mr Di Marco queries whether dismissing Mr Roohizadegan is the right thing to do. Ms Carr repeats her advice that TechnologyOne should investigate Mr Roohizadegan's allegations (T1069, lines 41-42). Her advice is again rejected. Mr Di Marco suggests that Mr Roohizadegan could be given an alternative role within TechnologyOne as a "strategic advisor" (T1031). However, he receives little or no support for that proposal. 4 May 2016 Mr Roohizadegan learns that Mr MacDonald has arranged to meet with La Trobe in his absence. Mr Roohizadegan sends an email to Mr MacDonald (cc'd to Mr Di Marco and Mr Harwood) objecting to his doing so on the basis that to bring new people into the process at such a late stage could compromise the big deal on which he was working (Ex A6, CB168; Ex A30, CB5881-5891). 6 May 2016 Ms Gibbons tells Mr Roohizadegan that he requires approval from HR to purchase Gold Class movie tickets to reward his sales staff (Ex A30, CB6002). Mr Roohizadegan escalates his concern about that decision to Mr Di Marco. Mr Di Marco intervenes, stating that Ms Gibbons requiring Mr Roohizadegan to obtain such approval is "plain stupid" and "embarrassing" (Ex A6, CB168; Ex A30, CB6003-6007). At a meeting attended by a subset of TechnologyOne's senior staff, Mr Di Marco reviews the draft communications plan for Mr Roohizadegan's termination on which Ms Carr is working. He determines that it is not suitable for various reasons, including that the compensation plan is not fair enough. He directs that the plan, which up to that time had had Mr MacDonald terminating Mr Roohizadegan, should be changed so that he would be responsible for its implementation (T961, T981). 9 May 2016 Mr Roohizadegan and Mr Ivancic jointly forecast significantly increased sales for the Victorian region for the then current financial year during a sales forecast teleconference with Mr MacDonald. Mr Roohizadegan and Mr Ivancic each claim that Mr MacDonald becomes angry after hearing that news. Mr Roohizadegan claims Mr MacDonald swears at them, saying "you fucking two, get your forecasts together" (T196). 12 May 2016 During an otherwise routine meeting of TechnologyOne's State Managers in Brisbane, Mr Roohizadegan is contacted at 12:14pm by text by La Trobe University. He arranges to take a call at 2:00pm (Ex A18, CB6343-6344). Mr Roohizadegan claims that he asks Mr MacDonald to participate in that call, but that Mr MacDonald rebuffs him stating "Screw you Benham, I've seen your email" (T204). Mr Roohizadegan takes the call from La Trobe (T206). He claims to have been told that La Trobe wanted a $7m reduction in the contract price they had not yet finalised. (T206). Mr Roohizadegan claims that he responded that he had no authority to make any concessions and that in any event a reduction of $7m was impossible. Mr Roohizadegan claims he was informed that a $1m reduction was the minimum La Trobe would accept (T207). Mr Roohizadegan sends an email to the members of TechnologyOne's Executive Team (Ex R23, CB6361) to inform them of La Trobe's demand. Shortly afterwards Mr MacDonald confronts Mr Roohizadegan. Mr MacDonald tells Mr Roohizadegan that he had instructed him not to negotiate with La Trobe. Mr Roohizadegan denies being given any such instruction. Moreover, he had not negotiated anything (T211). Mr Roohizadegan claims that Mr MacDonald abused, bullied and swore at him (T211-212). Mr Roohizadegan flies home to Melbourne in distress. 13 May 2016 Mr Roohizadegan emails Mr Chung (Ex A56, CB6552) and Mr Di Marco (Ex A30, CB6411-6427) to complain about his having been bullied by Mr MacDonald. Mr Roohizadegan pleads (at paragraph [45] of his Further Amended Statement of Claim) that his complaint to Mr Chung is the fifth instance of his exercising his workplace right to make a complaint in relation to his employment. Mr Roohizadegan pleads (at paragraph [40] of his Further Amended Statement of Claim) that his complaint to Mr Di Marco is the sixth instance of his exercising his workplace right to make a complaint in relation to his employment. Mr Di Marco responds early in the morning by email and tells Mr Roohizadegan that such behaviour is unacceptable (Ex A30, CB6411-6427). Mr Di Marco then makes two telephone calls to Mr Roohizadegan (T216-217). Mr Di Marco later emails Mr Roohizadegan, cc'ing in Mr Chung and Ms Carr, informing him that Mr MacDonald has been counselled. He advises Mr Roohizadegan that he should relax and enjoy the weekend. Mr Di Marco expresses the hope that everyone would "start afresh" on Monday (Ex A24, CB6431). Mr Roohizadegan obtains a medical certificate stating that he is unfit for work until 17 May 2016 inclusive (Ex A25, CB6346). 14 May 2016 Mr Roohizadegan emails Mr Di Marco. He advises Mr Di Marco that he is "still not well, on medication based on doctor's advice, but did not want this to impact my work" (Ex A6, CB1678; Ex A30, CB6579-6584). 15 May 2016 Mr Roohizadegan sends a second email to Mr Di Marco complaining about MacDonald's behaviour. He tells Mr Di Marco that he has "completely fallen apart" as a result. He attaches a medical certificate stating that he is unfit for work. He asks what "disciplinary action" Mr Di Marco proposes to take (Ex R26, CB6665-6667). Mr Roohizadegan pleads (at paragraph [27] of his Further Amended Statement of Claim) that his complaint to Mr Di Marco is the seventh instance of his exercising his workplace right to make a complaint in relation to his employment. 16 May 2016 Mr Di Marco sends an email to Mr Roohizadegan advising him that Ms Carr will investigate his complaint about Mr MacDonald and that in the meantime both he and Mr MacDonald should go back to work and resume their relationship (Ex R26, CB6664). Mr Roohizadegan is then sent a calendar invitation to attend a meeting in Brisbane with Mr Di Marco on 18 May 2016 at 10:30am. In explanation, Mr Di Marco sends an email to Mr Roohizadegan stating "I have allocated 5 hours for our meeting Wed so we are not rushed. If it finishes earlier that's okay" (Ex R38, CB6669-6670). Ms Carr rings Mr Roohizadegan to ask him about his bullying complaint against Mr MacDonald (Ex CB465; T1078). 17 May 2016 Mr Di Marco meets with Mr Chung. Mr Di Marco raises whether TechnologyOne is doing the right thing in terminating Mr Roohizadegan's employment on the basis only of hearsay (T653; Ex R68, CB536). Ms Carr speaks, inter-alia, to Mr Chung, Mr MacDonald and Mr Pye in respect of Mr Roohizadegan's bullying allegations against Mr MacDonald. Ms Carr claims she then reported (orally) to Mr Di Marco that while Mr Roohizadegan and Mr MacDonald had had a robust conversation on 12 May 2016 what had then occurred did not amount to bullying. Ms Carr continues to finalise arrangements for Mr Roohizadegan to be dismissed the following day (Ex A57, CB7078-7086). Mr Roohizadegan flies to Brisbane. 18 May 2016 Mr Di Marco summarily terminates Mr Roohizadegan's employment at TechnologyOne at approximately 10.00am. Mr Roohizadegan is given a deed of release (Ex R29, CB7164-7170) to consider. He is informed it is non-negotiable (T228; T644). Mr Di Marco emails all TechnologyOne staff at 11.00am to advise them that Mr Roohizadegan's employment has been terminated (Ex R28, CB7148). Mr Roohizadegan is profoundly shocked by those events. On the Applicant's case his termination is adverse action for reasons prohibited by the Fair Work Act in consequence of which he has suffered loss and damage.

[13]

Principles applied 86 The parties agreed, and the Court ordered, that evidence concerning a number of critical matters (such as what transpired between Mr Roohizadegan and other relevant persons during the events he alleges were bullying) would be given viva voce. The trial was conducted on that basis. Having regard to that agreement, the paragraphs relating to the content of such conversations and events as were contained in the affidavits otherwise relied on by the parties were not read. The most critical evidence of the principal witnesses was thus given orally. 87 While adducing evidence viva voce may be accepted to have advantages over the giving of evidence by way of affidavit where the credit and reliability of recall must be assessed, it too has risks and weaknesses. It is in the nature of a trial, particularly one conducted some years after the events in dispute occurred, that a witness's memory can - and, as judicial experience shows, not infrequently does - prove fallible. A court should therefore be cautious of attributing dishonesty to a witness who gives evidence which is not accepted. 88 Entirely without guile, a witness may confidently recall what they said, saw or did at the time of an event in terms that cannot be true. A belief that they must have acted or spoken in a particular way can become their actual, but false, recall. Further, because human memory is not as reliable as we would wish, this risk of firm but reconstructed memory increases as time passes. Contemporaneous written records, to the extent they exist, therefore generally provide a more solid basis for judicial fact-finding than human memory. 89 In this proceeding a number of important events were the subject of email exchanges or referred to in contemporaneous documents. Where the providence of such a document is not in dispute I have proceeded on the basis that - save where good reasons have been advanced for reaching a different conclusion - the Court should prefer what a contemporaneous document reveals, and any inferences open to be drawn on that basis, over the contrary present recall of a witness. 90 That acknowledged, there are a number of critical alleged events and conversations upon which this case potentially turns which were entirely undocumented. In such instances the Court cannot avoid basing its findings on contested evidence given by witnesses as to what was, or was not, said or done in particular circumstances: having regard to the inherent or contextual plausibility or implausibility of the evidence they gave, and the Court's assessment of their credit. 91 Counsel representing the parties helpfully provided detailed written submissions with respect to the credit findings they respectively submitted the Court is entitled to, and should, make with respect to a number of witnesses who gave evidence in this proceeding. 92 It is convenient at this point first to address the evidence given by four of the most critical witnesses in this proceeding, and the parties' respective submissions as to their credit. I proceed on that basis because in most regards, the remaining evidence is of more marginal relevance. That is because much of the evidence given by the other witnesses in this trial throws little or no light on the critical question of what was or were Mr Di Marco's reason or reasons for his decision to dismiss Mr Roohizadegan. Moreover having regard to the principles governing the construction of contracts that bind this Court, little of that evidence is dispositive or even relevant in regard to Mr Roohizadegan's claim in contract.

[14]

Benham Roohizadegan 93 Mr Roohizadegan gives evidence that in 2006, in the course of pre-contractual discussions between himself and Mr Di Marco, he had been assiduous to seek and obtain confirmation that the incentive bonus provided for in the contract he ultimately signed was to apply to his benefit in respect of all revenue generated by TechnologyOne in the Victorian region without exception. In cross-examination, Mr Roohizadegan explained that he had sought that assurance because he had left his previous job after a dispute between himself and his former employer in respect of the scope of such a clause. He had not wanted any such problems to arise in his new role (T262, lines 1-8). 94 His contract, into which he had entered on 3 July 2006 after those discussions, provided that his remuneration was to include a base salary package plus an incentive bonus "based upon Profit Before Tax (PBT) performance" to be "constituted from an agreed percentage of the Region's PBT performance". 95 It is uncontentious that that contract was varied on 7 March 2007 by an agreement which set a schedule of revised "agreed percentages" upon which his incentive bonus was to be based for particular periods into the future. 96 By a further agreement dated 26 November 2009, Mr Roohizadegan's contract of employment was varied for a second time. As varied, it refers to his being entitled to an incentive based on "Profit Before Tax (PBT) performance for Business Unit 03 - Victoria - Service Delivery". The variation increase the rate of that incentive (7.5% from 1 October 2009 to 30 September 2010 and then 7% from 1 October 2010 onwards) above that which would have applied under the existing contract. The terms (but not the construction) of the contract as varied are not in dispute. 97 Mr Roohizadegan gave evidence that from the outset of his employment with TechnologyOne, some TechnologyOne products sold in Victoria that had been directly marketed or serviced from Brisbane had been included as part of his PBT performance. In respect of those sales, he had routinely received incentive payments. 98 However, his evidence is that he had also been contractually entitled to - but did not receive - incentive payments in respect of his PBT performance revenue from certain other TechnologyOne products sold in Victoria: principally Student Management Services (SMS) but later also "Plus Services", and certain financially less significant transactions involving Victorian Legal Aid and Victorian Red Cross. He pleads that he is therefore entitled to damages for breach of his contract. 99 Mr Roohizadegan gave evidence that he had complained regularly to TechnologyOne, both before and after the variation to his contract on 26 November 2009, about not being paid incentives due to him in respect of such sales. His evidence was that he first raised that subject with Mr Di Marco during a discussion with Mr Harwood, Mr Phare, and Mr Di Marco that took place at the Gold Coast around 9 November 2009 (Ex A6, CB141-CB143). 100 It is uncontentious that on 8 April 2011, Mr Pye sent an email to Mr Roohizadegan to explain TechnologyOne's commission policy. I infer that this was in response to a complaint or complaints that Mr Roohizadegan gave evidence of having made, concerning what he asserted to be the partial non-payment of the incentives to which he was entitled. Mr Roohizadegan's evidence is that he made a contemporaneous handwritten note on a printed copy of Mr Pye's email: "Where is SMS?! Regional P&L?? told to wait … Year End!" (Ex A37, CB1173). 101 Mr Roohizadegan's evidence is that notwithstanding his complaints in that regard, he worked assiduously in TechnologyOne's interests from when he was first employed. He had built the Victorian region up from small beginnings to one where his incentives were calculable on profit and loss before tax of approximately $45 million. 102 I have set out above at [24]-[45] the substance of Mr Roohizadegan's evidence as to his distress from September 2010 onwards after his daughter became ill with Kawasaki disease. I need not repeat that discussion. It is sufficient that I restate that, for the reasons I gave, I accept that Mr Roohizadegan found refuge in his work and that by reason of the compensation mechanisms he adopted his work performance was not materially adversely affected by his private suffering. 103 Mr Roohizadegan's evidence is that Mr Di Marco always encouraged him to run the Victorian region as if it were his own business. He was never denied direct access to Mr Di Marco. He had understood that Mr Di Marco thought well of him. He was the recipient of the Chairman's Award in each of 2012, 2013 and 2014. That was an award made by Mr Di Marco and given to only a small number of TechnologyOne's highest performing staff. His evidence is that having regard to his success in building TechnologyOne's business, he pressed Mr Di Marco for additional financial recognition by way of giving him an equity interest in the company. Mr Di Marco had authorised that to happen. He had been granted share options in TechnologyOne in both 2013 and 2015. 104 His evidence is that although he personally played a significant part in making sales and building the business of TechnologyOne in Victoria, his role was not confined to securing new sales. Consistently with his contract, he had been responsible for the profitable management of the whole of the operations of TechnologyOne in Victoria. 105 His evidence is that in February 2015 he was promoted by TechnologyOne from the position of State Manager for Victoria to the position of Regional General Manager. His promotion to that position is not in dispute, although the Respondents submit that that was simply an aspect of a reorganisation within TechnologyOne in which State Managers in all of the more economically significant regions such as Victoria and New South Wales were given additional responsibilities. 106 His evidence is that he worked well and constructively with his first two direct reports, Mr Phare and Mr Thompson. He accepted there had been some initial tension when Mr Thompson replaced Mr Phare. However, his evidence was that he had accepted Mr Thompson's mentoring. They had thereafter worked extremely well together. 107 His evidence is that he encountered significant difficulties only after Mr Harwood replaced Mr Thompson as TechnologyOne's Operating Officer for Sales and Marketing. Those difficulties stemmed from his objections to Mr Harwood making unilateral decisions affecting his management of the Victorian region. 108 I note however that Mr Roohizadegan's evidence is that even before he had become his direct report, Mr Harwood had to a limited extent intruded into his management of his region. His evidence is that in 2012 Mr Harwood had interfered in that way by intervening to prevent the termination of an under-performing employee. Mr Roohizadegan's evidence is that Mr Di Marco became angry with Mr Harwood when Mr Roohizadegan complained to him about that interference (T169, lines 10-22). 109 Mr Roohizadegan's evidence is that in March 2015, after Mr Harwood had become his direct manager, Mr Harwood had appointed Mr Metcalfe to the position of Regional Sales Manager for Victoria: ostensibly to assist him to manage his increased responsibilities in the position of Regional General Manager. However, he had done so without consulting him. Mr Roohizadegan had complained to Mr Harwood that Mr Metcalfe was unsuitable for that position. 110 Mr Roohizadegan's evidence is that at around the same time (in June 2015), Mr Harwood moved to terminate the employment of one of his sales team: Mr Con Tsalkos (Ex A6, CB154-5). He had opposed that decision, his prior understanding having been that Mr Tsalkos was to be placed on a performance management plan and given a chance to improve. He gave evidence that the same had occurred in respect of another employee, Mark Loler (T320). 111 Mr Roohizadegan's evidence is that he sent an email to Mr Metcalfe, cc'ing Mr Di Marco, questioning why he and Mr Harwood had made the decision to terminate Mr Tsalkos on particular terms. He complained in his email that the decision to dismiss them had been taken without his involvement. He complained that he "cannot run [his] region in parallel with a fifth column" (Ex R12, CB4274-4275). 112 It is uncontentious that Mr Di Marco told Mr Roohizadegan and Mr Harwood to "sort it out, as this is escalating needlessly" and that "mistakes happen" (Ex R12, CB4266). 113 On 26 June 2015 Mr Di Marco informed Mr Roohizadegan and Mr Harwood that he had "recruiters telling [him] they will not put good sales staff to us in Victoria". Mr Roohizadegan's evidence is that he understood Mr Di Marco to have associated that difficulty with Mr Harwood having recently terminated Mr Tsalkos and Mr Loler (T321). In an email, Mr Di Marco instructed Mr Harwood and Mr Roohizadegan "the revolving door has to stop". He told Mr Harwood that he was holding him accountable in that regard (Ex R13, CB4304). 114 It was in that context that Mr Roohizadegan then gave evidence that when Mr Harwood sent him an email on 12 January 2016 stating that "Victoria cannot go backwards for a fourth year in a row", he had rejected that assertion in a long email which he had copied to Mr Di Marco (Ex R33). Mr Roohizadegan's evidence is that he felt offended by Mr Harwood's accusation (T304, lines 14-26). His evidence is that Mr Harwood was factually wrong to have claimed that the Victorian region had gone backwards (even if that statement were understood as applying only to new licence fees) for the past three years. He arranged to meet Mr Di Marco on 3 February 2016 to correct the record, and to complain about Mr Harwood undermining him. 115 He gave evidence that when Mr Harwood learned that he had arranged to meet Mr Di Marco, Mr Harwood demanded he cancel the meeting. Mr Roohizadegan's evidence is that Mr Harwood had threatened that "one of us has to go" when Mr Roohizadegan rejected his repeated demands to do so (T172-173). 116 Mr Roohizadegan's evidence is that he made a handwritten contemporaneous note of those events in his diary. His note is in evidence as Ex A11 (CB4932). It reads as follows: Monday 1 February 2016 Martin [Harwood] called whilst having lunch with Darryl Said that he has just had a meeting with Adrian [Di Marco] Why I am seeing Adrian this Wednesday and it is very serious so I need to tell him why and Martin wants me to call him later on 6:10pm Melbourne time - Martin called and I called Martin back, he was very very angry, why I am seeing Adrian, he is his boss and not my boss, I said Adrian is my boss too. I said Martin you expect me to advise big numbers but you do not support me and make decisions for my region, how do you expect me be accountable! etc Tuesday 2 February 2016 Martin called me again @ 12pm today He's not happy with me, seeing Adrian etc. I didn't follow his instructions, I told him to give me an example of when He said I lectured him on 'how he can help me' last night and he has been thinking last night One of us has to go! I said I am not going anywhere Martin said that he is going to prepare a list for Adrian & tomorrow we see how things pan out! Martin has seen my e-mails to Adrian, and he is going to scrutinise me closely if I stay. * Martin again called, left a message, I called back & he said we must make an offer to Boris [Ivancic], new Sales Manager today, I said this is the issue where everything started as I don't agree to give him a guaranteed commission. Martin said he is going to make a list of everything that I am going to complain to Adrian about and one of us has to go! (Spelling and grammar as in original handwritten entry). 117 Mr Roohizadegan's evidence is that when he and Mr Di Marco met on 3 February 2016 he complained to Mr Di Marco about Mr Harwood having undermined him in his role, bullied him and having made decisions behind his back. He also told him that Mr Harwood had threatened him that if he did not cancel his meeting, one of them would have to go (T176, line 41-T177, line 14; T361, lines 5-14). 118 Mr Roohizadegan's evidence is that after he made Mr Di Marco aware of Mr Harwood's conduct Mr Di Marco had said to him "I'm not having any of this from Martin. I'm going to get him". He had left his office to do so. Mr Roohizadegan's evidence is that just before Mr Di Marco went to fetch Mr Harwood Mr Di Marco had asked him not to "tell [Mr Harwood] in front of me that he has said to you 'one of us has to go'". 119 His evidence is that Mr Di Marco had returned a few minutes later with Mr Harwood. He told the Court that Mr Harwood "didn't seem to be happy" (T177, line 30). 120 Mr Roohizadegan's evidence is that Mr Di Marco then had "said to both of us, 'I think the world of both of you. I like you both. What is the issue?'", to which he had responded by saying to Mr Di Marco "I like to recruit my own sales manager. I like to have my resources. I like not to be undermined. I like decisions not being made behind my back". 121 His evidence is that he had told Mr Di Marco about Mr Harwood having vetoed Mr Pantano, who had been his first choice for the position of Regional Sales Manager. Their discussion had then turned to whether Mr Ivancic (who both Mr Di Marco and Mr Harwood agreed was suitable to be appointed), should be guaranteed a commission or not. 122 Mr Roohizadegan's evidence is that in the course of opposing offering Mr Ivancic a guaranteed commission for six months, he took the opportunity to raise with Mr Harwood and Mr Di Marco his own unpaid incentives for SMS by TechnologyOne to TAFE and universities in Victoria as were contractually due to him (T179, lines 20-37; T361, lines 15-23). 123 Mr Roohizadegan's evidence is to the effect that Mr Di Marco agreed with Mr Harwood that Mr Ivancic should be offered a guaranteed commission. Mr Roohizadegan gave the following evidence as to the events that then transpired (T180-181): Mr Roohizadegan: I said to - to Mr Di Marco and Mr Harwood. I said, "Okay. We go with Boris. We give him six months guaranteed commission. But if things doesn't work out for my region, please do not hold me accountable for your decision." And then Mr Harwood said "Behnam -" I - I remember he put his finger at me, "Behnam", like this - "Behnam, you are responsible for Victoria. I hold you accountable, even though we are making decisions for you to have Boris or someone else as your sales manager." And he raised his voice, similar to the way I tried to explain, your Honour, with a finger at me like this. And Mr Di Marco got a bit upset. I could see that. And then Mr Di Marco turned to Martin and said, "Martin, get out of my house. Martin, get out of my office now. I want to have another five minutes with Behnam alone." Mr Tracey: And what happened next? Mr Roohizadegan: And then when Martin was leaving the office, his face was very red. He just gave me a look as he was leaving the office, and then Mr Di Marco turned to me, he said, "Buddy, I know how good you are. You do good work for me. You escalate things to me. I love the way you do things. Continue as you are, but I want you to know that I had to show that I'm on the side of Martin too because I need him as well as I need you", some words to that effect. "Continue the way you are." I asked him - at the end of that conversation, I asked him - because by that time I was just thinking, "Am I doing something wrong?" And - and I asked Mr Di Marco "Adrian -" I had a good relationship with Adrian, and I said, "Adrian, do I need to change anything?" And he said, "Not at all. Continue as you are. I'm happy you bring your prospects and your executives to Brisbane to see me. Continue as you are and carry on as you are." And - and then I said to him before I left "So we - we had -" he asked me about my daughter, by the way, as well, around that time, "How is your daughter?" I said, "Well, it's difficult, but I've focused my work on my - I've focused my life on my work." And then - and before I left the room, I - I actually thanked Adrian. I said "Adrian, I would like to thank you that - and I appreciate -" I said, "I appreciate you take the time to see me one-on-one whenever I come to - whenever I come to - to Brisbane." And then he turned back to me and he said, "Behnam, I am the one who should be thanking you. I'm the one who should be thanking you." And I felt a bit embarrassed because this is the chairman of the company, and he - he - he said to me, "I'm the one who should be thanking you." And I - I - I remember when I came back from the Brisbane trip I asked my wife, I said, "Why he's thanking me?" I didn't get it. And my wife said, "He's effectively telling you that he appreciates that you tell him things, your - your transparency", because I - I felt - when he said, "I'm the one - I should be thanking you", I felt embarrassed. You know, I just - I just can't explain the feeling I felt. Mr Tracey: Okay. So that meeting between you and Mr Di Marco then ends? Mr Roohizadegan: Yes, he said something else as well. I'm sorry, I just remembered. He - he said, "Behnam, go and build a relationship with Martin." His Honour: Sorry, he said? Mr Roohizadegan: He - Adrian said to me, "Go and build a relationship with Martin." Mr Tracey: Okay? Mr Roohizadegan: And I said, "I don't have any issues with Martin." 124 Mr Roohizadegan's evidence is that there had been no opportunity for him to "go and build a relationship" with Mr Harwood. His evidence is that later the same day, Mr Harwood had spoken to him using words to the effect that Mr Roohizadegan might have won a battle, but that he would win the war. Mr Harwood told Mr Roohizadegan he was going to "scrutinise" him until he left TechnologyOne (T182, line 35- T183, line 6). 125 Mr Roohizadegan's evidence is that he was subsequently informed that Mr MacDonald would replace Mr Harwood from 11 April 2016 in the position of Operating Officer for Sales and Marketing. In that capacity, he would become Mr Roohizadegan's new direct report. Mr Roohizadegan's evidence however is that he was advised that Mr Harwood was to remain jointly responsible in that position for an overlap period. That this was so does not appear to be contentious (T539, line 23). 126 It is also not in dispute that Ms Gibbons, a junior member of TechnologyOne's HR team, visited Melbourne on 20 April 2016. Mr Roohizadegan's evidence is that he complained to her, inter-alia, of his having been bullied by Mr Sutching. He also complained that Mr Harwood and Mr MacDonald were preventing him from doing his job. He told Ms Gibbons that he believed Mr MacDonald had made a decision to direct him not to attend TechnologyOne's presentation to the Bass Shire Council on the recommendation of Mr Sutching. 127 Mr Roohizadegan gave evidence that he had asked Ms Gibbons whether what had happened to him amounted to bullying, and that she had told him that it did. (T183, line 34 - T184, line 29). It is uncontentious that Ms Gibbons later sent Mr Roohizadegan an email attaching a link to TechnologyOne's bullying policy. 128 A version of Mr Roohizadegan's alleged complaints, specifically referring to his considering legal action against Mr Sutching for bullying, was included in Ms Gibbons' email to Ms Carr of 24 April 2016. It is uncontentious that Ms Carr later sent a copy of Ms Gibbons' email to Mr Di Marco and the members of TechnologyOne's executive. 129 Mr Roohizadegan's evidence is that at 9.15pm on 25 April 2016 he then sent an email to Mr MacDonald querying why he had instructed him (in a phone conference in which Mr Harwood had also participated) not to attend a meeting with Melbourne University (Ex R21, CB5676). In his email Mr Roohizadegan referred to his being bullied by Mr Sutching and Ms Phillips. He asked Mr MacDonald, in view of what he asserted to be his exclusion from the running of the region, "I need to understand what my job is please." 130 Mr Roohizadegan's evidence is that later the same evening he had sent an email to Mr Di Marco to complain that Mr MacDonald was stopping him doing his job, decisions were being made behind his back and that he was being prevented from seeing customers and prospects (Ex R21, CB5674). 131 His evidence is that the next morning (26 April 2016) Mr Di Marco replied to his email saying "leave it with me to talk with Stuart [MacDonald]" (Ex A77, CB5656). 132 Mr Roohizadegan then gave evidence that during a phone conference in which he and Mr Ivancic jointly participated with Mr MacDonald on 9 May 2016, they gave an updated forecast of significantly increased sales for the Victorian region in respect of the current financial year (as noted above, I interpolate that it is uncontentious that TechnologyOne operated on a financial year ending 30 September). His evidence is that Mr MacDonald became angry after hearing that news. His evidence is that Mr MacDonald swore at them and told them: "You fucking two, get your forecasts together" (T196). Mr Roohizadegan's evidence is that the revised sales forecasts he and Mr Ivancic provided to Mr MacDonald on 9 May 2016 had made TechnologyOne aware that it was in prospect that the Victorian region would increase its revenue in the 2016 financial year. 133 Mr Roohizadegan's evidence is that on 12 May 2016 he attended a routine meeting of TechnologyOne's State Managers in Brisbane. His evidence is that during the morning session of that meeting he had been contacted on his mobile phone by Mr Nikoletatos of La Trobe University. Mr Nikoletatos told him that La Trobe had issues with the deal Mr Roohizadegan had understood was close to settling. Mr Roohizadegan's evidence is that they arranged to speak later that day at a more convenient time. 134 Mr Roohizadegan's evidence is that he then asked Mr MacDonald to participate in that postponed call. Mr MacDonald had rebuffed him stating "Screw, you, Benham, I've seen your email". Mr Roohizadegan gave evidence that at the time, he did not know to what email Mr MacDonald was referring (T204). Mr Roohizadegan's evidence was that in view of Mr MacDonald's response, he had arranged for Mr Paul James to be present when he returned the call from La Trobe as a "silent listener" telling him he was "scared or frightened if something goes wrong with Latrobe University, Stuart MacDonald is going to blame me for it" (T206). When he and Mr Nikoletatos spoke later in the day Mr Roohizadegan's evidence is that Mr Nikoletatos had told him that La Trobe wanted a $7m reduction in the contract price Mr Roohizadegan had earlier negotiated. 135 His evidence is that he had told Mr Nikoletatos that he had no authority to make any concessions, and that in any event a reduction of $7m was impossible. Mr Roohizadegan's evidence is he had asked Mr Nikoletatos what La Trobe's bottom line was and that, in response, Mr Nikoletatos had told him that a $1m reduction was the minimum La Trobe would accept. He had told Mr Nikoletatos that he had no authority to accept such a reduction but would convey his message to Mr Di Marco and the TechnologyOne executive. 136 Mr Roohizadegan's evidence is that he immediately communicated La Trobe's demand for a $1m reduction to the members of TechnologyOne's Executive Team by email. 137 His evidence is that after he did so, Mr MacDonald demanded to see him. Mr Roohizadegan's evidence is that when they met Mr MacDonald claimed that he had told Mr Roohizadegan not to negotiate with La Trobe. His evidence is that he denied being given any such instruction. He also sought to clarify he had not negotiated anything. He was simply conveying La Trobe's altered position. 138 Mr Roohizadegan's evidence is that during that discussion Mr MacDonald abused, bullied, and swore at him. His evidence is that he made a file note later the same day in which he recorded the events that had happened (T214). His file note (Ex A21, CB6346-6348) is as follows: Angilika called me on my mobile, asking if I had left. I said I was downstairs and she said Stuart [MacDonald] wants to see me. I said okay and went upstairs. Stuart took me to Gareth Pie office and said he wanted Gareth to be a witness and started shouting at me with very loud voice "Should I tell you to negotiate with LaTrobe University or not?" "Why did you offer them $1m discount?" You cannot do that Benham. I said I didn't negotiate, the customer wanted $7m discount and I said we had provided BAFO etc, but as the customer insisted (Peter), I said $7m will not be approved by TechnologyOne. What does he want his bottom line discount and Peter said $1m and this is what I have communicated at no time did I say that I have the authority to give $1m discount and I hope to take that to my Executive and Adrian. Stuart said he didn't accept that and that was negotiation. I said I didn't agree to it. Stuart then shouted that you F… Benham you don't understand I replied English is not my first language and I have not agreed to anything with the customer, and Stuart does not have a right to use bad language on me and shout at me. Stuart replied that he can use any language and swearing that he wants, and he can say and do anything that he likes and I cannot do anything about it. I replied no he could not swear, and abuse me and use bullying tactics on me and I said if there was nothing else. I was going to leave Gareth [Pye's] office to which Gareth & Stuart said fine and I went to Edward [Chung's] office and told Edward about what had happened in Gareth office & Stuart swearing at me, etc. Edward said my email a bout La Trobe was good, he didn't see anything wrong with it and seemed very surprised that Stuart had acted that way towards me. I came out still shaken, bewildered and very upset downstairs to meet with Boris [Ivancic], Steve, Jerry and Mark … David Van De .. Boris and I caught a taxi to the airport. 139 Mr Roohizadegan's evidence is that he flew home to Melbourne that evening in a state of distress. 140 Mr Roohizadegan's evidence is that the following morning (13 May 2016) he sent emails to Mr Di Marco and Mr Chung to complain about having been bullied by Mr MacDonald. His evidence is that Di Marco responded immediately stating that such behaviour was unacceptable (Ex A30, CB6411-6427). Mr Di Marco had followed up that email with a personal phone call to Mr Roohizadegan. 141 His evidence is that Mr Di Marco sent an email to him (copied to Mr Chung and Ms Carr) later the same day to inform him that Mr MacDonald had been counselled. He advised Mr Roohizadegan to relax and enjoy the weekend. In concluding his email Mr Di Macro said he hoped that everyone would "start afresh" on Monday (Ex A24, CB6431). 142 Mr Roohizadegan's evidence was that he was further aggravated in that Mr Di Marco had not required Mr MacDonald to apologise. 143 Mr Roohizadegan's evidence is that on 15 May 2016 he sent a second email to Mr Di Marco to complain about MacDonald's behaviour. He told Mr Di Marco that he had "completely fallen apart" as a result of his having been bullied. He attached a medical certificate that he had obtained to his email. The certificate stated that he was unfit for work. He asked Mr Di Marco what "disciplinary action" he proposed to take (Ex R26, CB6665-6667). 144 His evidence is that Di Marco responded by sending him an email to advise him that Ms Carr would be investigating his complaint about Mr MacDonald. 145 Mr Di Marco suggested that in the meantime both Mr Roohizadegan and Mr MacDonald should go back to work and resume their relationship (Ex R26, CB6664). 146 Mr Roohizadegan's evidence is that in the morning of 16 May 2016 he received an electronic diary invitation to attend a meeting in Brisbane with Mr Di Marco on 18 May 2016 at 10:30am. The other attendees invited included Mr MacDonald (Ex A6, CB178-177; Ex R30, CB6669-6670). Mr Roohizadegan's evidence is that shortly after he received that invitation, Mr Di Marco sent him an email stating "I have allocated 5 hours for our meeting Wed so we are not rushed. If it finishes earlier that's okay" (Ex R38, CB6670). 147 His evidence is that he had responded to Mr Di Marco to the effect that he was still unwell but that if Mr Di Marco really wanted him to attend such a meeting he would do so: notwithstanding that he was unwell. 148 Mr Roohizadegan's evidence is that Ms Carr rang him the same day (16 May 2016). He explained he still was unwell but nonetheless provided her with a brief account of the events that had transpired. 149 His evidence is that on the faith of his understanding that Mr Di Marco had set aside five hours to review those events, Mr Roohizadegan flew to Brisbane to participate in the meeting that Mr Di Marco had asked him to make himself available to attend. 150 His evidence is that when he was shown into Mr Di Marco's office at 10:00am he had observed that Mr MacDonald was not present. His evidence was that after one of the attendees (he cannot recollect who it was) asked him a perfunctory question about his health as he was entering the room, to which he had replied he was still unwell and attending contrary to his doctor's advice, Mr Di Marco said he would get straight to the point. He was terminating Mr Roohizadegan's employment at TechnologyOne "with immediate effect" (T226). Mr Roohizadegan's evidence is that he was given a proposed deed of release (Ex R29, CB7164-7170) to consider. Mr Di Marco told him that what was in that deed was non-negotiable. 151 Mr Roohizadegan's evidence is that he had felt that his world had ended (T228). 152 His evidence is that his dismissal left him feeling suicidal. When leaving TechnologyOne's offices he had been in a noticeably distressed state. His evidence is that when he had been asked what had happened, he had replied that he had been dismissed. He had said, and it was his then state of mind, that he intended to throw himself off a bridge. 153 His evidence is that the psychological impact of his dismissal on him was profound. It is the cause of his now being unfit to seek or obtain other employment. 154 Whether the Court is entitled to conclude his dismissal is the cause of that circumstance is the subject of contested expert evidence, to which I will return in due course. 155 Finally I note that in response to questions asked of him in cross-examination by Dr Spry to the effect that he was prepared to impute malicious intent inter-alia to Mr Harwood and Mr MacDonald without any basis in respect of their conduct towards him (describing them as a "fifth column" working against him), Mr Roohizadegan's evidence was that shortly before he was dismissed Mr Phare (his original direct report) had told him he had made enemies of Mr Harwood and Mr MacDonald because Mr Di Marco had taken his side rather than theirs on some earlier occasions (T382, lines 8-15 and lines 34-40). Otherwise, but subject to the discussion below at [176]-[181], I identify nothing of significance in Mr Roohizadegan's responses in cross-examination that would add to the picture to which I have referred above.

[16]

Respondents' submissions 157 The Respondents advance the following submissions: 14. The Applicant demonstrated a remarkable ability to recollect events and dates during both his evidence in chief and his cross-examination. He was in the witness box for about three and a half days. He did not give any indication that he did not understand the questions put to him, and if he was uncertain of the meaning of a particular question he showed no difficulty or hesitation in seeking clarification. He usually only said he could not recall matters when his responses would not have suited his case (T1166). 15. The Applicant demonstrated an ability to concentrate over long hearing days, involving sensitive issues, including the health of his daughter. He is clearly very intelligent, and had no difficulty reading emails and other documents and responding to questions in relation to same. He also seemed to have a keen recollection of events going back as far as 2006. The Applicant displayed a remarkable ability to concentrate, to recall past events in detail, to discuss documents and their meaning, given his reporting of difficulties in concentration and memory to the Doctors. 16. The Applicant is not a reliable or credible witness. 17. The Applicant's performance in the witness box is in stark contrast to his reporting of his symptoms and level of functioning to all three psychiatrists, namely Dr White, Dr King and Associate Professor Phillips. It demonstrates that he has, at the very least, exaggerated his symptoms to his treating psychiatrist, Dr King, but also to Dr White and Associate Professor Phillips. For example, in the witness box he displayed no problems with concentration, irritableness or forgetfulness. 18. Also, the fact that the Applicant sought to distance himself from the history he gave to Dr White reflects poorly on his credit. His insistence that his claim against his daughter's doctors was not about himself or his wife also reflects poorly on his credit (T301, T302, T3-44). 19. The Applicant's version of events cannot be independently corroborated and should not be preferred when there is alternative evidence to the contrary. 20. His evidence, so far as it relates to contemporaneous notes demonstrate that the Applicant records impressions rather than events. It cannot be accepted that the information written by his hand are an accurate record of events that the Applicant is now alleging. 21. Further, the notes fail to record significant matters while purporting to be contemporaneous records of discussions. Importantly, the Applicant has produced no file notes to substantiate key events. For example, the Applicant has produced no file note recording what he claims to be his complaint about Mr Harwood to Mr Di Marco on 3 February 2016. Similarly, while maintaining he made a contemporaneous note of the events of 18 May 2016, he makes no reference to writing a suicide note either on the plane back to Melbourne or in his car at the airport (CB7090-7093). There is no file note of the Applicant's alleged discussion with Mr Harwood on 3 February 2016 wherein the Applicant says that Mr Harwood said you won the battle but I lost the war (T181).

[17]

Consideration 158 As observed above, to the extent that they exist contemporaneous written records generally provide a more secure basis for judicial fact-finding than personal recall much later after an event. In this proceeding, Mr Roohizadegan gave evidence that he had a practice of making a brief note of the most significant of conversations and events in which he had been involved shortly after those conversations or events had taken place. He gave the following evidence: Mr Tracey: … in relation to those diary entries, Mr Roohizadegan … I just wanted to ask you when you made those diary entries? Mr Roohizadegan: At the same time, basically, an hour or two of the conversations. It's not that I had my diary and write at the same time, but if I can explain, the first one was after the lunch finished when I got to my office. The evening one I was already in the office or wherever I was, I wrote it. And the third one - so it was a matter of hours. It wasn't the next day or the week after or a month after. Mr Tracey: Do you have a practice in relation to keeping diary entries? Mr Roohizadegan: Yes, I did. Mr Tracey: And what's that practice? Mr Roohizadegan: Just, basically, I did write important things, important meetings, important events, and because of what has happened there. And I used to leave it sometimes in my office, my diary, but I - I put that diary in my briefcase. And I started with a new - a spiral, because I didn't want my secretary to see those notes that Mr Harwood had mentioned to me, "One of us has to go," something. Mr Tracey: And those diary entries that I've just taken you to, what do you say about their accuracy? Mr Roohizadegan: As far as I'm concerned, they're 100 per cent accurate in a summary format. 159 A number of the notes Mr Roohizadegan gave evidence of having made in such a fashion were tendered. They are: Exhibit A11: a series of notes made over 1 and 2 February 2016, recording inter-alia Mr Harwood having demanded that Mr Roohizadegan not attend a meeting with Mr Di Marco and including his having stated "one of us has to go"; Exhibit A13: a note dated 20 April 2016, recording Mr Roohizadegan asking Ms Gibbons "is this bullying?" and her replying "yes"; Exhibit A17: diary notes for 6 May 2016 to 11 May 2016, recording inter-alia that Mr MacDonald swore at Mr Roohizadegan and Mr Ivancic during a teleconference on 11 May 2016 in which they had reported an improved budget outlook for the Victorian region; Exhibit A20: a diary entry dated 12 May 2016 recording the subject matter of a conversation between Mr Roohizadegan and Mr Nikoletatos of La Trobe University; Exhibit A21: three pages of notes dated 12 and 13 May 2016 recording, inter-alia, Mr MacDonald swearing at Mr Roohizadegan as a result of his having allegedly negotiated with Mr Nikoletatos and events thereafter; and Exhibit 28: notes dated 18 May 2016, in respect of the circumstances of his dismissal. 160 Dr Spry, counsel for the Respondent, submits that what Mr Roohizadegan recorded in his notes were "impressions" rather than events. He submits, for that reason, that the Court cannot accept that the information written by his hand is an accurate record of events he alleges occurred. Further, Dr Spry submits that it is significant that those notes do not include a record of all key events. Dr Spry notes for example that Mr Roohizadegan made no note of a critical conversation with Mr Di Marco on 3 February 2016, about which Mr Roohizadegan gave evidence. 161 I reject Dr Spry's submission that Mr Roohizadegan's contemporaneous notes should be characterised as recording only "impressions" rather than events. To give an example, his note dated 12 May 2016 records the following: Angilika called me on my mobile, asking if I had left. I said I was downstairs and she said Stuart [MacDonald] wants to see me. I said okay and went upstairs. Stuart took me to Gareth Pie office and said he wanted Gareth to be a witness and started shouting at me with very loud voice "Should I tell you to negotiate with LaTrobe University or not?" "Why did you offer them $1m discount?" You cannot do that Benham. I said I didn't negotiate, the customer wanted $7m discount and I said we had provided BAFO etc, but as the customer insister (Peter), I said $7m will not be approved by TechnologyOne. What does he want his bottom line discount and Peter said $1m and this is what I have communicated at no time did I say that I have the authority to give $1m discount and I hope to take that to my Executive and Adrian. Stuart said he didn't accept that and that was negotiation. I said I didn't agree to it. Stuart then shouted that you F… Benham you don't understand I replied English is not my first language and I have not agreed to anything with the customer, and Stuart [MacDonald] does not have a right to use bad language on me and shout at me. Stuart replied that he can use any language and swearing that he wants, and he can say and do anything that he likes and I cannot do anything about it. I replied no he could not swear, and abuse me and use bullying tactics on me and I said if there was nothing else. I was going to leave Gareth [Pye's] office to which Gareth & Stuart [MacDonald] said fine and I went to Edward [Chung's] office and told Edward [Chung] about what had happened in Gareth office & Stuart swearing at me, etc. Edward said my email a bout La Trobe was good, he didn't see anything wrong with it and seemed very surprised that Stuart had acted that way towards me. I came out still shaken, bewildered and very upset downstairs to meet with Boris, Steve, Jerry and Mark … David Van De .. Boris and I caught a taxi to the airport. 162 Other notes made by Mr Roohizadegan include references within quotation marks to what appears to have been intended by him to record (albeit hastily and partially) what had been said as direct speech. Thus, his note of 13 May 2016 records Mr Di Marco telephoning him and saying "I apologise, Stuart's behaviour unacceptable". 163 Mr Roohizadegan's unchallenged evidence, which I am entitled to accept, was to the effect that he had a practice of making a note shortly after events which had appeared to him to be very important at the time at which they occurred. It was not that he had a practice of making a note of every event that occurred in his employment at TechnologyOne. I reject Dr Spry's submission that the Court should find that the reliability of what Mr Roohizadegan recorded in the contemporaneous notes he did make is undermined by his failure to make a note of every conversation and event of which he has given evidence in these proceedings. 164 In respect of what I am asked to infer by reason of the want of comprehensiveness of Mr Roohizadegan's notes, Dr Spry did not put to Mr Roohizadegan that he had opportunistically omitted to make notes of events or conversations which were not consistent with his evidence in this trial. 165 Dr Spry did not put to Mr Roohizadegan that any of his notes had been written on dates other than those on which they were facially made. He did not put any questions to Mr Roohizadegan to put in issue that there was a want of contemporaneity or accuracy with respect to their making. Dr Spry did not put to Mr Roohizadegan that he had added anything later to his notes to buttress his case. 166 Dr Spry does not submit that anything in Mr Roohizadegan's notes is inconsistent with any contrary and intractable documentary evidence (such as the emails TechnologyOne and Mr Roohizadegan adduced in evidence) the Court is entitled to accept. Mr Roohizadegan's oral evidence was also consistent with his notes. 167 I find that Mr Roohizadegan made the notes as have been admitted into evidence shortly after the relevant events he describes in them occurred. Further, I am satisfied that the Court is entitled to rely on what is contained in such of Mr Roohizadegan's notes as were put into evidence as a contemporaneous record. Finally, I am satisfied that Mr Roohizadegan's notes are entitled to be accorded significant weight. 168 I also reject Dr Spry's broader submission that the Court should find Mr Roohizadegan was not a reliable or credible witness. 169 Specifically, I do not accept Dr Spry's submission that Mr Roohizadegan's performance in the witness box over three and a half days was in stark contrast to his reporting of his symptoms and level of functioning to three psychiatrists who gave evidence at the trial, namely Dr White, Dr King and Associate Professor Phillips. 170 To the contrary, I observed that Mr Roohizadegan's evidence was delivered in a flat, affectless monotone. I do not purport to possess any relevant expertise. However, my impression was that in giving his evidence Mr Roohizadegan was constantly struggling to hold himself strictly in control. If, in those circumstances, he displayed few problems with concentration, irritability or forgetfulness over that period, I find that to be consistent with his earlier established capacity to separate work tasks from his otherwise collapsing world: rather than an indication that he was in a condition other than as those doctors reported. In that regard I note that I am satisfied that Mr Roohizadegan's evidence of his having sublimated his pain regarding the circumstances surrounding his daughter's illness by burying himself in his work, notwithstanding the tragic costs it imposed on his family, was utterly convincing. I accept that evidence. 171 In any event, Mr Roohizadegan's apparent control in the witness box on which Dr Spry relies in advancing those submissions appeared to me to have been at best tenuous. His demeanour (insofar as it is open to the Court evaluate it) suggested he found certain alleged incidents very painful to recall. As his cross-examination progressed over two days, I observed him becoming increasingly listless and tired. Having regard to the stress that his giving evidence appeared to impose upon him, I enquired on occasions if he was capable of continuing. Having regard to those observations, I regularly allowed breaks in his evidence-in-chief and cross-examination. 172 I reject Dr Spry's submission that in those circumstances Mr Roohizadegan's capacity to concentrate and to give coherent evidence (what Dr Spry attacks as his "remarkable ability") establishes that Mr Roohizadegan had exaggerated his symptoms not only to his treating psychiatrist, Dr King, but also to Dr White and Associate Professor Phillips. To the extent that it is open to me to evaluate Mr Roohizadegan's demeanour, my impression of him as a witness was not at variance with the medical evidence before the Court. I am satisfied that the more plausible explanation for his being able to recall in detail most of relevant events about which he gave evidence was that he was profoundly damaged by them. He had therefore continued to obsess over them long after their conclusion. 173 I accept Mr Roohizadegan's evidence that when he had been terminated by Mr Di Marco, he had felt that his world had ended (T228). I find there to be no plausible reason which would entitle me to reject his evidence that his termination threw him into a black despair, which remains crippling and incapacitating. The experts called in this proceeding differ only as to whether the black despair he then experienced and continues to endure is properly to be understood as merely the manifestation of the same condition that Dr White had diagnosed him to be suffering before he was dismissed. 174 After giving his evidence Mr Roohizadegan remained in the body of the Court to be available, if required, to instruct his counsel. During that time, insofar as it came to my attention, his manner generally remained as it had been in the witness box: subdued and superficially stoic. However, when Ms Carr was giving evidence regarding the meeting at which he had been terminated Mr Roohizadegan exited the Court making no noise to draw attention to himself but with tears rolling down his face and in a clearly distressed condition (T1039-1040). 175 I am satisfied that Mr Roohizadegan's demeanour and the manner of his giving evidence was consistent with that of an honest person determined to have their day in court: albeit notwithstanding their suffering from profound depression. 176 I also reject Dr Spry's submission that Mr Roohizadegan's insistence that the legal proceedings he brought against his daughter's medical practitioners were not about himself or his wife provides a reason for the Court to be sceptical of his credit overall. This requires some explanation. In cross-examination, Dr Spry put to Mr Roohizadegan that he must have become aware of his suffering mental health issues well before he had been dismissed. In that regard Dr Spry referred Mr Roohizadegan to pleadings in proceedings he had brought (with his daughter) prior to his dismissal in which he had alleged medical negligence in the treatment of his daughter, and in which they had claimed damages from her treating doctors. Those pleadings advanced claims that he had suffered psychiatric injury as a result of those events (T346). Mr Roohizadegan said in response: I saw the claim itself, but I didn't pay attention to the details, Dr Spry, and that's the truth, because my claim was about my daughter, not about me, but the documents state otherwise - and I agree with you - but I have to tell the truth to the Court. 177 Mr Roohizadegan's evidence was that he had left those matters to his lawyers. When it was put to him by Dr Spry that he was not being honest with the Court by maintaining that until he had been diagnosed by Dr White he had known he was suffering guilt but had not appreciated he might have had suffered a psychiatric injury, he gave the following evidence: I disagree. And that's why I went to see Medical Panel to see whether I was injured. That's why I went to see Dr White to see whether there was any injury. Prior to that I have no knowledge that there was an injury - possible injury (T302). 178 I reject the proposition that Mr Roohizadegan's reluctance to have accepted prior to that diagnosis that he was suffering from a mental injury is a reason for the Court to find he was motivated by any intent to deceive his then employer (and later in this proceeding, the Court). After his daughter had become unwell and he had become consumed by guilt, he had been determined to hold his world together by continuing to work as if nothing had happened. I am satisfied that his insistence in cross-examination that he had viewed his claim against his daughter's doctors as not being about himself or his wife was the truth as he understood it. He was simply pursuing and seeking to punish the doctors he blamed for misdiagnosing his daughter. The claims he and his wife brought in that regard were simply an aspect of that pursuit. 179 On the other hand I accept Dr Spry's submission that by February 2016, having regard to the evidence adduced in those other legal proceedings, it is difficult to accept that Mr Roohizadegan would not have had to become aware of his having been diagnosed as suffering from at least some degree of psychiatric injury. 180 I reject however that Mr Roohizadegan's subsequent failure to advise TechnologyOne about what he may have, and more likely than not did, become aware of in that regard provides a sound basis for the rejection of Mr Roohizadegan's credit generally as a witness of the truth. To the contrary I find the most plausible explanation for that omission to be that Mr Roohizadegan could not bring himself even to privately acknowledge, let alone to tell TechnologyOne, that he had or might have a diagnosable psychiatric injury. Work had become Mr Roohizadegan's one safe place, where he could escape from the difficulties that had beset his family and personal life. His failure to advise his employer of Dr White's diagnosis was entirely consistent with, and a continuation of, his earlier determination to keep his workplace separate from the distress that was consuming his private life. 181 I reject Dr Spry's submissions that Mr Roohizadegan's evidence should be discounted because he was not a reliable or credible witness. 182 I also specifically reject that I should hesitate to accept Mr Roohizadegan as a witness of the truth because he failed to call Mr Paul James as a witness. In the Respondents' closing written submissions, Dr Spry submits: 29. The Applicant gave evidence that Mr Paul James was a witness to a conversation the Applicant had with Peter Nikoletatos (an employee of La Trobe University) prior to his meeting with Mr MacDonald on 12 May 2016. 30. Mr James could have given evidence about the nature of the conversation the Applicant had with Mr Nikoletatos about the La Trobe University deal, and whether the Applicant did or did not negotiate with Mr Nikoletatos. 31. The Court should infer from the Applicant's failure to call Mr James, that Mr James' evidence would not have assisted the Applicant, and further the Court should find that the Applicant did in fact negotiate with Mr Nikoletatos, offering the La Trobe university a $1 million dollar discount as alleged by Mr MacDonald. (Footnote omitted). 183 However, that is a straw man contention. Mr Roohizadegan relevantly denied two things: first that he had been instructed not to negotiate, and second that in any event what he had done and said had amounted to negotiating. Mr James' characterisation of Mr Roohizadegan's discussions with Mr Nikoletatos is inconsequential unless Mr MacDonald had previously instructed him not engage in any negotiations with La Trobe. Mr James might perhaps have been able to throw some light on the second order question by stating his opinion as to whether or not what Mr Roohizadegan had said to Mr Nikoletatos was relevantly "negotiating". However, there is no basis at all on which it might be suggested that Mr James could have given any relevant evidence as to what instructions Mr MacDonald may or may not have earlier given to Mr Roohizadegan in respect of his dealings with La Trobe University. 184 In those circumstances I reject that Mr Roohizadegan's failure to call Mr James reflects adversely on his credit. I also reject what may be an implication in Dr Spry's submission at [31] that Mr Roohizadegan in fact offered, without authority, a reduction of $1 million in the price La Trobe would pay. I note in that regard that Mr Di Marco did not advance such a circumstance as being a reason for his decision to dismiss Mr Roohizadegan. That is hardly surprising, as there is considerable evidence that Mr Di Marco had been keen for Mr Roohizadegan to complete the La Trobe deal. To the extent that I need to reinforce the point, I am entirely satisfied that I should prefer Mr Roohizadegan's evidence to that of Mr MacDonald on that question. I reject that I am entitled to find that Mr Roohizadegan had been previously instructed by Mr MacDonald not to negotiate with La Trobe. 185 Mr Roohizadegan responded without equivocation to all of the questions Dr Spry put to him in a long and detailed cross-examination. Save as to the submissions Dr Spry made with respect to Mr Roohizadegan's insistence that his claim against his daughter's doctors was not about himself (which submission I have dealt with and rejected above), Dr Spry advanced no submission that Mr Roohizadegan gave any identifiably untruthful answer or any answer inconsistent with his prior statements: including with respect to any matter contained in his notes. I reject that his occasional failures of recall were anything more than what could be expected of any honest witness. I therefore accept Mr Tracey's submission that Mr Roohizadegan survived days of searching cross-examination with his credit intact. 186 I find the Applicant to have been a witness of the truth. 187 That conclusion does not necessitate this Court accepting every particular of Mr Roohizadegan's evidence. A court not infrequently will conclude that an otherwise impressive and truthful witness's recall of a particular event or conversation cannot be accepted or should be accorded little or no weight, having regard to other contrary evidence. However, I am satisfied that Mr Roohizadegan was a most impressive witness. Further, I am satisfied that the Court is entitled to rely on his contemporaneous notes as are in evidence as compelling evidence of the events they record.

[18]

Adrian Di Marco 188 I have set out certain of the evidence given by Mr Di Marco above. I need not repeat that summary. 189 Mr Di Marco's evidence is that he recalls having a pre-employment interview with Mr Roohizadegan in which they discussed incentives. His affidavit evidence of that discussion is as follows (Ex R31, CB497-498 at [7]): I also pointed out that we had very clear rules about how commissions worked and that we paid a generous commission and if he grew the Victorian business he would make a lot of money. At the time Behnam commenced employment, Student Management Services (SMS) was treated as its own region with its own sales and implementation team totally distinct to the States like Victoria. This was consistent across all regions, and was always like this from the very start. The State regions did not receive any commission for SMS for many years before and after Behnam joined. 190 In cross-examination he gave the following evidence: Mr Tracey: Mr Di Marco, I'm just going to take you back to the commencement of Mr Roohizadegan's employment. Now, you had some discussions with Mr Roohizadegan in pre-employment interviews. Is that right? Mr Di Marco: Yes, I did. Mr Tracey: It was your decision to hire him in the first place? Mr Di Marco: That would have been a decision by myself and Roger Phare. Mr Tracey: And during those pre-employment interviews, you described the structure of the respondent's business, namely, the TechnologyOne business, and how it's divided into business units which are defined by geographical boundaries. Do you remember telling him about that? Mr Di Marco: We would have talked about the business and we would have talked about he would be responsible for Victoria. Mr Tracey: The Victorian … Mr Di Marco: Region Mr Tracey: Region? Mr Di Marco: Yes Mr Tracey: And you would have explained to him - well, you explained to him that each business unit reports to the head office in Brisbane? Mr Di Marco: It would have been explained. Yes. Mr Tracey: And it was also explained that the incentive bonus arrangement for Mr Roohizadegan was based upon the performance of the whole Victorian region. Do you remember saying that to him? Mr Di Marco: I remember saying to him that there would be an incentive based on the performance of the Victorian region. Yes. He would make a lot of money out of it. 191 Mr Di Marco's evidence is that Mr Roohizadegan did not ask him for incentives for SMS in the first couple of years after he commenced employment. Even when he asked for those incentives later in his employment, Mr Di Marco's evidence is that Mr Roohizadegan had not said to him that he thought that he was contractually entitled to incentive payments on SMS at any time prior to 1 October 2010. 192 Mr Di Marco gave evidence that he alone was the decision-maker with respect to Mr Roohizadegan's dismissal. In that regard, Mr Di Marco's evidence was that he had three reasons for dismissing Mr Roohizadegan. Those asserted reasons were as follows: (1) The licence fees in the Victorian region were not growing; (2) Concerns had been raised by Mr Roohizadegan's team, which was a "team in crisis"; and: (3) Mr Roohizadegan had been unable to work well with three different managers within a two-year period (T594, line 44-T596, line 46). 193 With respect to his making the decision to terminate, Mr Di Marco gave the following evidence-in-chief (T522): The email from Kathy Carr sort of overtook everything. You know, it just - just brought everything to an end because it was so bad, but there were other things that were happening that meant that Behnam was already in a very precarious position with the company, you know, it was very unlikely, totally unlikely he would stay. And the main issue there is this behaviour that was escalating where he was undermining his operating officer where he was pushing back on things that were not acceptable to push back on. He was not taking responsibility, which was clearly his responsibility. He was complicating things, causing confusion, and also, too, the licence fees had stagnated, which was just unacceptable. 194 Mr Di Marco's evidence is that up until 2016, he had continued to have confidence that with mentoring from his direct reports Mr Roohizadegan could augment his commitment and passion with new leadership skills and take the business forward in its next phase of growth (T520, lines 5-17). He had put in new operating officers to mentor Mr Roohizadegan with that objective. In 2016 however, that had gone badly wrong: There was, firstly, a guy called Lee Thompson. Lee wasn't with us very long, and there had been some issues with Lee generally and then with Lee and Behnam, a few bumps there, but, anyway, Lee left and I put in a new operating officer, a guy called Martin Harwood. Now, Martin I have known for over 35 years. He is one of the most talented execs in the IT industry in Australia. He is exceptional. You know, I've work with him for such a long time. So I brought Martin in so that I had someone really good who I knew and trusted. Lee I didn't know. We brought him in and we'd had some problems, so this time I brought Martin in because I knew Martin and I knew what he could do. I'd seen what he could do. I had confidence in him that he would be able to mentor the regional managers, Behnam in particular, and help them to put in place the structures and the systems that they needed to grow. So I put Martin in. And that works - was working well, I could see. You know, there were those bumps again, and there are in some emails there, but in 2016, early 2016 the email you brought me to earlier about the profit forecast, that's where it just totally came off the rail. Literally within months the whole thing just spun out of control. Behnam's demonstrated a set of behaviours which were just totally inappropriate. He was not taking responsibility as Martin had alluded to. He was undermining Martin. He was undermining other people in the company. He was making things difficult. He was confusing things. He was pushing back on things that were just not appropriate to push back … 195 Mr Di Marco's evidence is that when he became aware on 25 April 2016 of the contents of Ms Gibbons' report regarding the complaints that some of TechnologyOne's staff had made about Mr Roohizadegan's conduct and the culture of the Victorian region, he had immediately concluded that he had no choice "but to let Benham go" (T522, line 30). 196 His evidence was, however, that Mr Roohizadegan was "almost out the door anyway" (T522): There were issues before that and so before that email Behnam was really almost out the door anyway. You know, he was about to be exited anyway, and I'm explaining the chronology of what happened before that. The email from Kathy Carry sort of overtook everything. The email from Kathy Carr sort of overtook everything. You know, it just - just brought everything to an end because it was so bad, but there were other things that were happening that meant that Behnam was already in a very precarious position with the company, you know, it was very unlikely, totally unlikely he would stay. And the main issue there is this behaviour that was escalating where he was undermining his operating officer where he was pushing back on things that were not acceptable to push back on. He was not taking responsibility, which was clearly his responsibility. He was complicating things, causing confusion, and also, too, the licence fees had stagnated, which was just unacceptable. (Emphasis added). 197 Mr Di Marco explained his reference to licencing fees in that evidence as follows: The licence fees was - is what drives our business. It is what has made us successful is this 10 to 15 per cent licence fee growth. Everything we do is about getting licence fee growth. From that comes our profitability. From that comes our success as a company and underpins the business. So the licence fee growth is 10 to 15 per cent, and every region has to contribute that. Now, a region may miss that one year, and that's fine if there's a good reason. To miss it two or three years is unacceptable. An example of that is that, 12 months earlier, I had let the regional manager for New South Wales go because he had missed his numbers two years in a row, which is not acceptable. I mean, these people are paid a million dollars a year. They're paid to perform at a high level. They're paid there to deliver the results. And Behnam's licence fees had not grown for three years. It was a huge drain on the rest of the business. We had to support it. And the fact that Behnam had pushed back on that and was not accepting responsibility for it was just unacceptable. 198 Mr Di Marco then expanded on his evidence that Mr Roohizadegan had inappropriately "pushed back". Dr Spry referred him to an email (Ex R33) that Mr Roohizadegan had sent to Mr Harwood (into which Mr Di Marco had been copied), in which he had disputed Mr Harwood's observation that Victoria could not "go backwards for a fourth year in a row": Dr Spry: … The subject heading is Victoria Forecast? Mr Di Marco: Goes on forever, doesn't it? Dr Spry: It goes on, yes? Mr Di Marco: Unbelievable. Like War and Peace. It goes on earlier than that, too, doesn't it? Dr Spry: Yes. So … So, yes, so having considered that email, and you were saying this is one of the ones that you were concerned about, about Mr Roohizadegan pushing back. Is there anything in that email that stood out to you as doing that? Mr Di Marco: Well, it's just there's so much information there, isn't there? So much, just, you know, getting in the way of what the issue is. The issue is that the forecast shows that we've got a problem, and Behnam is not accepting that and is not putting into place anything to fix it and taking responsibility to fix it. You know, there are other emails where he actually blames his 2IC, which is Metcalf, for the problem, which is unacceptable, you know? He's the regional manager. He's responsible for the forecast, you know? The regional manager who flies up to Brisbane and presents to me every deal, it's him. It's not his 2IC. He has to tell me every deal they're going to close. And it's the regional manager who I talk to every week about how those deals are progressing, not the 2IC. The regional manager is accountable. So there's no accountability being taken about the problem, and not even accepting there's a problem either, which is the main thing. And not even accepting the fact there has been a problem in the prior year. I mean, the statistics are there. The licence fees have not grown for a number of years. And he's not even accepting that, right? So he's not accepting what is hard concrete data. He's pushing back. "Everything is basically fine in Victoria", you know what I mean? Dr Spry: Now …? Mr Di Marco: He says, "I overachieved the sales budget during the last four years." You know, it's just divorced from reality. I mean, you know, he had not overachieved. It's a drag on the business. It has not achieved the 10 to 15 per cent licence fee growth we need. Dr Spry: Now, we …? Mr Di Marco: I don't know how to make head nor tails of that behaviour. I mean, that's where it starts. I'm seeing this really bad behaviour. If he had come back and said, "Look, we have a problem. We need to work to fix it. This is what we're going to do," that would be fine. 199 As to his evidence that he had decided Mr Roohizadegan had to be dismissed upon his becoming aware of the contents of Ms Gibbons' email, he gave the following evidence-in-chief: Dr Spry: Could you tell the court who Kathy Carr is? Mr Di Marco: Yes. Kathy Carr is - was responsible for our HR department. She had been with us quite a number of years. Dr Spry: And she's forwarding an email to you from a Rebecca Gibbons? Mr Di Marco: That's right. Dr Spry: If you could tell the court who Rebecca Gibbons was and the position she held at this time? Mr Di Marco: Rebecca worked for Kathy, and she was responsible as the HR liaison for a number of the regions for which Victoria was one of those, and her job was to - to work with the regions. Dr Spry: Now, you read - well, did you read the email from Ms Gibbons? Mr Di Marco: Yeah, I did. It was in the morning. We had a board meeting later that day. It was … Dr Spry: If I - just if I could just pause there. Could you just tell the court your reaction on receiving that email? Mr Di Marco: If I follow it backwards, it's one of the worst emails I've received in 33 years of being in business. I mean, it's just an atrocious, atrocious email and horrible. Dr Spry: And why did you form that email - sorry, why did you form that view? Mr Di Marco: Well, I'll just read you one sentence, okay, because I think it sums it all. Simon is a solid performer. He was on track to hit Club this year and he is also building a good pipeline. When I asked him if he enjoyed work for TechOne, his response was that we were a great company. We have great products, a fantastic office - sorry, and we produce great products, but he struggles to be proud of working for us when we appear to allow such a culture of fear, intimidation, bullying and passive aggressive behaviour. He asked me outright whether we was [possible transcription error] an organisation think it was acceptable to know about Behnam's behaviour and do nothing about it. He stated the impression of Victoria, not just in the workplace, but our reputation in the marketplace is that we allow this behaviour to continue and just turn a blind eye as the figures have been so good in their previous years. And that comment is indicative of the whole sales team, not one, that's the whole sales team. Every person in the sales time. I mean, I was just totally flabbergasted, you know. His Honour: So just picking up, where is that in the text? It's what page and where in the text? Mr Di Marco: It's page 580 and it's the last paragraph. It starts almost in the third-last sentence, second-last sentence of the last paragraph. I mean, even if it was just one person, one person it would have been unacceptable, but it's the whole team. That's the amazing thing; the whole team. 200 I address the evidence Mr Di Marco gave in cross-examination in my discussion below regarding the parties' submissions as to this witness's credit.

[19]

Applicant's submissions 201 The Applicant makes the following submissions with respect to Mr Di Marco's credit: 7.19 The Second Respondent was an unsatisfactory witness. 7.20 The Second Respondent gave evidence that he terminated Mr Roohizadegan's employment for various reasons, including that he had not been able to get along with his previous three managers (T575.28-30). The Second Respondent's evidence in relation to this point should not be accepted as Mr Lee Thompson, one of the managers whom the Second Respondent says could not work with Mr Roohizadegan, has given evidence that he disagrees with any assertion that Mr Roohizadegan's employment was terminated because they did not get along (T458 at 38 to 40). Moreover, as submitted earlier, the notion that a reason for dismissal included the Applicant not getting along with his managers is directly contradicted by Mr Di Marco's own statement in the termination meeting on 18 May 2016 that the decision had nothing to do with Start McDonald or Martin Harwood. 7.21. On the first day of his evidence, Mr Di Marco enthusiastically and confidently tried "to sell" his version of why the Applicant's employment was terminated. This was in marked contrast to his demeanour at the end of his cross-examination. During the enthusiastic phase, Mr Di Marco used hyperbole, referring to being "flabbergasted" by Rebecca Gibbons' 24 May 2016 email, and proffering that the email was one of the worst emails he'd read in business in 35 years. No such comments are to be found in his affidavit. 7.22. The hyperbole undermines Mr Di Marco's credibility and reliability as a witness. So do his disingenuous set up of the termination meeting, his admitted concealment from the Applicant over a period of weeks that he was considering terminating his employment and his admitted stringing along of the Applicant so the Latrobe deal could be done (as submitted earlier in these submissions). 7.23. In short, Mr Di Marco was not a witness of credit, he was not a reliable witness and his evidence should not be accepted on controversial matters, including in relation to his proffered reasons for his adverse action. Where his evidence conflicts with the Applicant's evidence, the Applicant's evidence should be preferred.

[21]

Consideration 203 Dr Spry submits that the general demeanour of Mr Di Marco in the witness box was one of a man trying to remember in detail events that had occurred over three years ago. He submits that Mr Di Marco's responses in evidence-in-chief and cross-examination were given without him reviewing documents. He further submits that Mr Di Marco made appropriate concessions when he was unable to remember specifics of a day, or for example whether people had worked on public holiday (T560). 204 I reject the proposition that it can be taken to be self-evident that it speaks in favour of Mr Di Marco's credit that he chose to give his evidence without first reviewing any of the relevant documents. It might equally reflect complacency, arrogance or indifference to the accuracy of his testimony. 205 In any event, I am not satisfied that the factual basis for that submission is made out. Dr Spry did not refer to anything in the transcript as would support the Court finding as a fact that Mr Di Marco gave his evidence without earlier having reviewed the documents. On the contrary I am satisfied that he did so, at least in part. I note in that regard that in response to a question in examination-in-chief as to whether he had had an opportunity to review the email chain relevant to Ms Gibbons' report on the views of TechnologyOne's staff in Melbourne, Mr Di Marco answered: "Yes, I'm familiar with this email." (T518). 206 Dr Spry submits that Mr Di Marco, when he thought "an alternative interpretation of his statement was being used had the ability to say that interpretation was wrong". However, the very example that Dr Spry advances in favour of the Court concluding that Mr Di Marco was a credible witness illustrates, to the contrary, Mr Di Marco's reluctance to concede error. 207 The example given is Mr Di Marco's response to his being cross-examined by Mr Tracey in respect of a passage in his witness statement (sworn as an affidavit) in which he refers to "I and TechnologyOne's executive team" (emphasis added) having made the decision to terminate Mr Roohizadegan's employment. That evidence was given in a context where it is uncontentious that a meeting of TechnologyOne's executive was convened on 26 April 2016 for the purpose of discussing Mr Roohizadegan's employment. In his evidence-in-chief however, Mr Di Marco had given evidence that he and he alone had made the decision to terminate Mr Roohizadegan. 208 Under cross-examination, Mr Di Marco initially sought to maintain that the other members of TechnologyOne's Executive Team had not been involved in making the decision to terminate Mr Roohizadegan's employment (T569). Asked to explain why, if that was so, he had called a meeting of the executive Mr Di Marco indicated he had misheard or misunderstood the question: Mr Tracey: Well, I put it to you you convened this meeting because those other people who I've just taken you to, mentioned in the email and who you've confirmed, those other people were involved in making a decision to terminate Mr Roohizadegan's employment, weren't they? Mr Di Marco: No, they were not. His Honour: Well, why did you involve them in a meeting of an executive? Mr Di Marco: I wanted to get their advice. His Honour: Yes. Well, that means they're involved in it, does it not? Mr Di Marco: But they didn't make the decision, your Honour. The decision …. His Honour: But your question was, were they involved in it? Mr Di Marco: I'm sorry. I thought you were saying they made the decision. Did I misread that - misheard that? 209 Mr Di Marco then conceded that the members of TechnologyOne's Executive Team had provided advice to him on the issue (T569) and, to that extent, had been involved in making the decision: Mr Tracey: The question was whether those people were involved in making the decision to terminate Mr Roohizadegan's employment? Mr Di Marco: They provided the advice to me. Mr Tracey: So they were, as his Honour put to you, involved in the decision to terminate Mr Roohizadegan? Mr Di Marco: All right. Yes. 210 Mr Tracey then took Mr Di Marco to his affidavit. Mr Di Marco acknowledged that he had carefully prepared his affidavit and had sworn to its truth (T571-572). Mr Tracey referred Mr Di Marco to paragraph [77] in which he had deposed: I realised then that in hindsight, TechnologyOne should have terminated Behnam's employment in late April 2016 after I and the Executive team first made the decision, rather than wait for the La Trobe University deal to be signed. (Emphasis added). 211 Mr Di Marco then conceded that what he had sworn in that paragraph was "not correct" (T570, line 47). However, he almost immediately sought to walk back from that admission (T571, lines 7-15) : Mr Tracey: And now you are saying it [the affidavit] is untrue? Mr Di Marco: Well, I think it's in the wording itself. I mean the wording is so subtle with this. Mr Tracey: Well we can get to the subtleties of the wording, Mr Di Marco, but you would agree with me, surely, that a central issue in this case is who made the decision to terminate the applicant's employment isn't it? Mr Di Marco: There are so many issues in this case. So many. I mean it's … Mr Tracey: A central issue in this case? Mr Di Marco: There are so many central issues in this case. 212 I have accepted, for reasons I give later, that I should proceed on that basis that Mr Di Marco was ultimately the sole decision maker. However, his tortured and evasive evidence with respect to his earlier statements that on their face appeared to admit the contrary does not support Dr Spry's submission that where "an alternative interpretation of his statement was being used [he] had the ability to say that interpretation was wrong". 213 A second instance of Mr Di Marco being reluctant to acknowledge inconsistencies within his evidence is that which arose when he was cross-examined with respect to his statement in evidence-in-chief that before April 2016 Mr Roohizadegan was "hanging on, barely, to his position" because of slow growth in licence fees and "escalating behaviours" (T530). His evidence-in-chief was that 2016 "looked like it was going to be a train smash" (T538). 214 When Mr Tracey confronted Mr Di Marco with TechnologyOne's forecasts for 2016 as were suggested to show otherwise, he responded as follows: Mr Tracey: The reality is, Mr Di Marco, that there was no problem whatsoever with the forecast for Mr Roohizadegan for the financial year 2016, was there? Mr Di Marco: I was told there was, so - and I will have to look it up (T585). (Emphasis added). 215 The problem of then disentangling the matters of which Mr Di Marco asserted he had personal knowledge from those which he might have been told was further illustrated in a different part of the cross-examination. 216 Mr Tracey put to Mr Di Marco that when on 12 January 2016 Mr Harwood had said that "Victoria cannot go backwards for a fourth year in a row", Mr Di Marco must have been aware that it was not in fact the case that Victoria had gone backwards (T546). Mr Di Marco's evidence was that he disagreed that Mr Harwood's assessment had been wrong (T546). 217 When later confronted by Mr Tracey with TechnologyOne's own documents as demonstrated that the financial year ending September 2013 had been a highly successful one for the Victorian region, Mr Di Marco prevaricated rather than making the appropriate concession: Mr Tracey: Did - the question is, is it true that in each of those three years Victoria's revenue growth relevant in that field had gone backwards? That's the question. True or false? Mr Di Marco: Okay. It's false. Mr Tracey: So it's false? Mr Di Marco: It's false. Mr Tracey: So Mr Harwood's statement is false? Mr Di Marco: No, it's not false. Mr Tracey: So it's true. Is that your evidence? Mr Di Marco: I'm not sure how to answer it because it's the word backwards that's the issue. So I don't know how to answer it (T547). 218 A further instance of Mr Di Marco being seemingly oblivious to the need to acknowledge an obvious contradiction in his own evidence arose with respect to his evidence that one of the reasons he had for Mr Roohizadegan's termination was his inability to work with his past direct reports. Those three managers (in chronological order) were Mr Lee Thompson, Mr Martin Harwood and Mr Stuart MacDonald. Mr Thompson's evidence was to the effect that by mid-2004, after what had been a challenging start, he and Mr Roohizadegan had developed a mutual respect and had worked well together. Pressed by Mr Tracey to accept that his assertion that Mr Roohizadegan had been unable to work well with his past three direct reports therefore could not be true, Mr Di Marco gave the following evidence: Mr Tracey: You're happy to accept that, that they could work well together and then that--? Mr Di Marco If he said that, yes. … Mr Tracey: So that, I put it to you, could not have been a valid reason … to terminate Mr Roohizadegan's employment, namely that he could not work well with Thompson? Mr Di Marco: Yes, it was. Mr Tracey: It was, was it, nevertheless a valid reason you say? Mr Di Marco: Yes, it was part of the - yes it was a reason. Mr Tracey: Well I put it to you that's just simply irrational, Mr Di Marco. You have two people saying that they can work together, and you're saying they cannot? Mr Di Marco: It's not irrational, no. 219 It was also put to Mr Di Marco that both Mr Thompson and Mr Harwood had given Mr Roohizadegan excellent or good ratings (A in the case of Mr Thompson and B in Mr Harwood's instance) on TechnologyOne's routine ABC staff evaluation criteria (T576-577). Mr Di Marco's explanation for maintaining that his evidence was not for that reason false was that he had never seen those ratings (T576-8). 220 Even accepting that to have been the case, Mr Di Marco advanced no explanation as to why he had never sought out or paid any regard to those formal assessments of Mr Roohizadegan's performance by his direct reports. 221 In any case given Mr Thompson's contrary evidence there is no plausible basis as would lead the Court to accept that Mr Di Marco's decision was based, inter-alia, on his having an honestly held opinion that Mr Roohizadegan had been unable to work well with Mr Thompson. 222 I also note that Mr Di Marco gave evidence that he had made the decision to terminate Mr Roohizadegan's employment on 25 May 2016. At that time Mr MacDonald (the third direct report Mr Di Marco stated that he then considered Mr Roohizadegan to be unable to work with) had been employed for only two weeks. In that time he had neither visited Melbourne, nor met Mr Roohizadegan. I reject the proposition that in those circumstances Mr Di Marco could have formed an honestly held view that Mr Roohizadegan would have been unable to work constructively with Mr MacDonald had Mr Di Marco given any attention to the facts as he knew them to be, and approached that question in good faith. 223 Those further examples buttress my rejection above of Dr Spry's credibility submission that when Mr Di Marco thought an alternative interpretation of his statement was being used he had the ability to say that interpretation was wrong: at least insofar as that submission implies that Mr Di Marco was able to advance a plausible basis for maintaining a discredited position. 224 To the contrary, I accept Mr Tracey's submission that in giving his evidence-in-chief Mr Di Marco initially enthusiastically and confidently tried to "sell" his version of why the Applicant's employment was terminated. I am satisfied that Mr Tracey was correct to submit that Mr Di Marco's demeanour was much changed by the end of his cross-examination. A minor but illustrative example concerns the evidence to which I refer above at [214]. 225 I specifically reject Dr Spry's submission that Mr Di Marco made appropriate concessions when unable to recall specific events. That may be accepted to be true in the single instance cited by Dr Spry when Mr Di Marco conceded that dates on emails shown to him compelled such a concession (T560). However, I reject that it can be accepted as an accurate assessment more generally. 226 As I have earlier identified, of significance in these proceedings on the Respondents' case is the email sent by Ms Gibbons to Ms Carr which she in turn she forwarded to Mr Di Marco. Ms Gibbons' email reported a number of allegations made by some staff members about Mr Roohizadegan's management of the Victorian Office (Ex R58, CB5596-5597). Mr Di Marco received a copy of that email on 25 April 2016. His evidence in examination-in-chief was that he had been "flabbergasted" by its contents (T518). It was, he gave evidence, "one of the worst emails I've received in 33 years of being in business. I mean, it's just an atrocious, atrocious email and horrible" (T501, lines 20-22). His evidence was that he had acted upon the content of that email as a basis for terminating the employment of Mr Roohizadegan (T519). 227 Mr Di Marco gave evidence that he made the decision to terminate Mr Roohizadegan's employment on his receipt of that email on 25 April 2016 (T523). He had communicated his decision to the members of TechnologyOne's Executive Team at a meeting that had been convened to discuss the subject of that email the following day. 228 His evidence was that he did not recall Ms Carr (TechnologyOne's HR Director) advising him and the executive at that meeting that Ms Gibbons' email merely contained allegations, and that those allegations should not be acted upon without an investigation. Mr Di Marco was cross-examined as follows (T572, lines 44-46): Mr Tracey: Kathy Carr at that meeting said to you that TechnologyOne…needed to investigate the concerns in Ms Gibbon's e-mail? Mr Di Marco: I do not recollect her saying that, no…. 229 Mr Di Marco however conceded that he had "been happy not to investigate … the allegations against Mr Roohizadegan" (T573, lines 13-19). 230 I find it to be implausible, and reject, that Mr Di Marco gave truthful evidence that he had no recollection of Ms Carr's advice. Ms Carr's evidence-in-chief (which was corroborated in substance by other attendees of the meeting) was to the effect that not only had she provided such advice, but also that Mr Di Marco had then insisted there not be an investigation (T1027-1028): Ms Carr: … I highlighted that because we had received a complaint from staff we needed to investigate it. And if they were going to make a decision about termination we needed to do that quickly… Dr Spry: Was anything said about when you said - did you say there needed to be an investigation did you? Ms Carr: Yes. So Adrian said that he didn't want there to be an investigation … … Dr Spry: And did he tell you why he didn't want the staff to go through an investigation? Ms Carr: Yes, because the complaints were very serious and there were other issues at play here and it was - that's all. 231 Ms Carr's evidence was not only that she did give that advice at the 26 April 2016 meeting. She also gave evidence that on 3 May 2016, when TechnologyOne's executive met for a second time to discuss Mr Roohizadegan's future, she had again asserted that TechnologyOne needed to investigate the allegations in Ms Gibbons' email (T1069, lines 41-42). 232 It was then put to Mr Di Marco that on his own evidence he had been "willing to terminate the employment of an employee of almost 10 years' service on the basis of untested allegations of fact as to complaints that had been allegedly made against him" (T574, lines 9-12) to which he answered: "No". 233 I am satisfied that that answer was disingenuous. 234 There is a further aspect of the evidence Mr Di Marco gave with respect to Ms Gibbons' email which leads me to reject Dr Spry's submission that Mr Di Marco made appropriate concessions when unable to recall specific events. 235 Ms Gibbons' email not only set out the allegations which some staff had made against Mr Roohizadegan, but also included a statement that: He [Mr Roohizadegan] is considering a bullying claim against Peter Sutching in reference to a comment in an email that stated he was over "this behaviour". He told me was considering legal action due to this. 236 When it was put to Mr Di Marco in cross-examination that having read Ms Gibbons' email he must have become aware that Mr Roohizadegan had made a complaint of having been bullied and was considering legal action, his evidence was as follows: Mr Tracey: It's an email that you say you relied on as the basis for terminating Mr Roohizadegan's employment; is that right? Mr Di Marco: Yes, yes. Mr Tracey: And it's an email …? Mr Di Marco: Mmm. Mr Tracey: … that happens to refer to the applicant, Mr Behnam Roohizadegan, considering a bullying claim and is considering taking legal action? Mr Di Marco: Yes. Mr Tracey: Surely that is something that motivated you - well, withdraw that. Surely it's something that you took in? Mr Di Marco: At the time, no. I did not take that in. Mr Tracey: I put it to you that you read it and that was one of the reasons why you decided, on the basis of that email, to terminate his employment? Mr Di Marco: Definitely not. Mr Tracey: You were aware though, weren't you, that Mr Roohizadegan was considering legal action because of that? Mr Di Marco: At the time, as I said, I did not take that in. I was focused on the broader more important issues of the email. Mr Tracey: Are you saying that the possibility of legal action against your company is not an important issue, is that your evidence? Mr Di Marco: Someone considering legal action is not important. Okay. It's not significantly important. It's considering. So it was not. 237 In the context in which those events occurred, I am satisfied that I am entitled to find it inherently implausible that a claim of such seriousness was overlooked by Mr Di Marco. I am satisfied that I am entitled to reject that evidence. 238 Moreover even if it can be accepted (contrary to my view that it is implausible) that on a first reading of Ms Gibbons' "shocking" email Mr Di Marco had not taken in that one of his most senior employees had informed Ms Gibbons that he was contemplating taking legal action against TechnologyOne in respect of the bullying he claimed to have experienced from a peer, it is uncontentious that Ms Gibbons was called into the meeting of TechnologyOne's executive held the next day. During that meeting, which Mr Di Marco attended, Ms Gibbons verbally outlined the events that had prompted her email. Her evidence was that while she did not repeat that Mr Roohizadegan was contemplating legal action, she did verbally advise the executive of Mr Roohizadegan's complaints of bullying (T726, line 47). Mr Harwood's evidence was that Ms Gibbons had told the meeting that Mr Roohizadegan was "unhappy and was considering taking legal action against Peter Sutching" (T1092, lines 25-30). Mr Sutching had earlier been one of Mr Harwood's direct reports (T1093, lines 8-12). 239 Having regard to those circumstances, Mr Di Marco's explanation for his asserted want of recall is inherently implausible. I reject it. 240 There is a further aspect of the evidence that Mr Di Marco gave with respect to Ms Gibbons' email and his response to its contents which warrants attention. It will be recalled that Mr Di Marco's evidence-in-chief was that it was the contents of that email that had led him to decide to dismiss Mr Roohizadegan. There is however a glaring contrast between his evidence in the trial that he had told Mr Roohizadegan when terminating him that he was doing so because inter-alia there was an issue of systematic bullying and culture of fear that had been raised by his staff in Victoria (as had been summarised in that email) (T641, lines 27-28), and the absence of any reference in his earlier sworn affidavit to that reason ever having being conveyed to Mr Roohizadegan (T642, lines 1-3). 241 Further, Mr Di Marco gave evidence that Mr Roohizadegan's team in Victoria was in crisis. However, in cross-examination he accepted that Ms Gibbons' email did not refer to the whole of the Victorian staff and had excluded at least one member of the sales team (T561, lines 17-30). It will be recalled that his evidence-in-chief had been that Ms Gibbons' email had recorded the views of "the whole sales team, every person in the sales team … That's the amazing thing, the whole team". 242 I further reject Dr Spry's submission that I am entitled to conclude that the complaints made by Mr Roohizadegan had not affected the way in which Mr Di Marco viewed him or his standing with the company, and that "indeed Mr Di Marco thought very highly of the Applicant". 243 I accept that until immediately before Mr Di Marco terminated Mr Roohizadegan's employment, the evidence is consistent with the proposition Mr Di Marco had thought very highly of him. However, even accepting that proposition, once the Rubicon of his dismissal had been crossed I am comfortably satisfied that Mr Di Marco was willing to advance unfair allegations against Mr Roohizadegan in an attempt to justify his decision. 244 Thus Mr Di Marco deposed in his affidavit that "as early as December 2007 I received a complaint from a long serving employee, Bernard Morris, about Benham [Roohizadegan]". The inference to be drawn from that to which Mr Di Marco deposed was that Mr Roohizadegan had had a long-standing history of having generated complaints from loyal and long serving employees of TechnologyOne. 245 In cross-examination Mr Di Marco conceded that that to which he had deposed with respect to Mr Morris was in error. He was "happy to accept" that Mr Morris was not a long serving employee and in fact had joined TechnologyOne as an employee "just a few months before" he had made his complaint (T650-651). Mr Di Marco accepted that Mr Roohizadegan had told him that he was concerned about the performance of Mr Morris (T651, lines 5-30). Mr Di Marco's explanation for having included that damaging statement in his affidavit was that at the time he had not recalled Mr Morris being on probation. Nor had he recalled his having authorised Mr Roohizadegan to "just get rid of [Mr Morris]" (T651, lines 5-30). 246 When however Mr Tracey put to Mr Di Marco that his affidavit was therefore not accurate, Mr Di Marco responded as follows (T651): Mr Tracey: You described him as a long serving employee. That's not accurate, is it? Mr Di Marco: I would have to see the termination date. That was my - I thought he was, but I don't know the - the start date, and I thought he was. Mr Tracey: You knew though that he was in a probationary period, didn't you? Mr Di Marco: I don't recollect that. I mean, I have 100s of people that work for me - 100s, maybe 1000. I mean, it's just … 247 I am satisfied that Mr Di Marco's, at best careless, slighting of Mr Roohizadegan's record in his sworn affidavit on a false premise illustrates that once Mr Roohizadegan had been dismissed and had brought legal proceedings Mr Di Marco was willing to attack, on baseless grounds, the man for whom he asserted he had had a "soft spot" (T653, line 27) and whose enterprise had helped build the success of the company he had founded. If further proof be needed of the latter proposition, I note that immediately following Mr Roohizadegan's termination Mr Di Marco made a company-wide announcement (Ex R28) advising that "[o]ur Victorian Region has been one of our most successful regions over the years with strong growth." 248 There are additional reasons to conclude that whatever "soft spot" he might once have had for Mr Roohizadegan, once he had decided to fire him Mr Di Marco was willing to act ruthlessly without regard to candour or friendship. 249 First, assuming a settled decision was made by Mr Di Marco on 25 April 2016 (which for reasons I later set out I do not accept as proven on the balance of probabilities) his conduct, as he effectively conceded in cross examination, towards the man for whom he says he had had a soft spot was thenceforth deceptive and self-serving if not cruel. I refer to the following evidence (T654): Mr Tracey: Well, on your version the decision is made on 25 April, yet between 25 April and 18 May you deliberately concealed your intention to terminate Behnam from him; is that correct? Mr Di Marco: Yes, that's correct. Mr Tracey: It's correct that you just strung him along throughout that period from 25 April to 18 May? Mr Di Marco: I - sorry - did not tell him. Mr Tracey: No, you didn't tell him, but you strung him along. You kept encouraging him in relation to closing the La Trobe deal? Mr Di Marco: You can use the word "strung along". Mr Tracey: Because they're accurate, aren't they? Mr Di Marco: I don't think they're accurate but … Mr Tracey: Well, I put to you that I can use them because they cover exactly what occurred; do you agree with that? Do you agree with that? Mr Di Marco: Yes, all right, I will agree to that. Mr Tracey: You will agree to that and you will agree that you kept encouraging him and telling him that he was doing great work on the La Trobe deal. That's right, isn't it? Mr Di Marco: On the La Trobe deal definitely. 250 Secondly, Mr Di Marco's evidence-in-chief with respect to the meeting on 18 May 2016 at which Mr Roohizadegan was terminated was that he had told Mr Roohizadegan that he had allocated five hours for that termination meeting, "so that we don't have a rushed meeting, so we could go through the process properly" (T537). 251 He later provide a more detailed explanation (T539): Well, just from the logistics, I didn't want Behnam to come up and it to be a rushed meeting, you know, so I tend to allow enough time so that, once we had discussed the separation, he could then go and talk to our legal department about the separation deed and fine-tune it. He could go talk to the accounting department to go through the numbers. It was a very generous package I wanted to offer him, but there were various options of what he could take and how he could package it up to minimise his tax. Also, too, it was to allow him, if he wanted to, to grab a coffee with me afterwards, because when I have done the separation with other longstanding employees, it has always gone well, and we have grabbed a cup of coffee afterwards, because people realise that, you know, it's now time for both parties to move on, so I wanted to have the time allocated so it wasn't a rushed thing. I didn't want him just flying up and flying back, and - so that was why. 252 I reject all of that evidence. The emails and phone calls Mr Di Marco had earlier made to Mr Roohizadegan to induce him to attend the meeting had intimated to Mr Roohizadegan that the meeting was to be held for an altogether different purpose. His affidavit contains the statement: I told Benham [Roohizadegan] words to the effect that Stuart [MacDonald] had been counselled. I said this in order to placate Benham. 253 That was in line with his also professing to Mr Roohizadegan on 13 May 2016 as he continued to finalise his plans for his termination that he had expected "them both to return to work and restart their relationship". That, however, was knowingly untrue (T657, lines 9-29). 254 The calendar invitation that Mr Roohizadegan had been sent prior to the meeting indicated that Mr MacDonald would be present. Mr Di Marco accepted that that was false representation. The meeting was presented by Mr Di Marco to Mr Roohizadegan as an opportunity to find a way that would permit both he and Mr MacDonald to get back to work together in the aftermath of their run-in the week before: a run-in following which Mr Roohizadegan had complained to Mr Di Marco that Mr MacDonald had behaved unacceptably, and that he had been bullied. 255 None of those representations were true. 256 Mr Di Marco accepts that when he sent the calendar invitation he knew that Mr MacDonald - who, misleadingly, had been included in the list of invitees to the meeting - would not attend (T632, line 22). 257 Five hours had not been set aside for discussion. As Mr Tracey put to Mr Di Marco, the "communications plan" for the meeting prepared by Ms Carr (Ex A78) - a plan that Mr Di Marco accepted he had in fact followed almost to the letter (T634, lines 11-38) - allocated only an hour for the meeting. If it needs be said, the plan demonstrates in the clearest of terms that the meeting was not called for the reasons for which Mr Di Marco had advised Mr Roohizadegan it was to be held. Its sole purpose was to permit Mr Di Marco to effect Mr Roohizadegan's dismissal (Ex A78, CB7078-7082). 258 There was no time set aside in the "communications plan" for any discussion of '"various options" let alone for "grabbing a cup of coffee". I am satisfied that the evidence entitles me to find that the meeting was planned to be, and was, over in less than an hour. Mr Roohizadegan was not to be given, and was not given, the opportunity for any further discussion. Senior leaders were to be notified at 11.15am and there was to be company-wide announcement at 11.30am: at the latest half an hour after Mr Roohizadegan's termination had been effected. That is what happened. 259 In cross-examination, Mr Di Marco gave the following evidence as to what he said and did at the termination meeting (T640): Mr Tracey: "I'm giving you some ex gratia payments, plus your share options, despite the advice of my board". That's what you said? Mr Di Marco: Words to that effect. Mr Tracey: And you said, "If you go legal on me, this offer is off the table"? Mr Di Marco: Words to that effect. Yes. Yes. Mr Tracey: Then you said to him - you give him an envelope; is that right? Mr Di Marco: Yes Mr Tracey: And you say, "All is in this envelope"? Mr Di Marco: Yes (T640). 260 Mr Di Marco later said in cross-examination: Mr Tracey: Now, you said to him - so you've given him the envelope. You said to him … "This is not negotiable" as you gave him the envelope? Mr Di Marco: That's right. … Mr Tracey: And that was because in your mind - well, this is what you were conveying: that the deal was the deal and there was no scope for Behnam to negotiate it; is that right? Mr Di Marco: Yes. The words were that, yes (T644). 261 I reject Mr Di Marco's evidence that despite his accepting that he had used those words the terms of Mr Roohizadegan's dismissal were, in fact, negotiable: Mr Tracey: Well, I put to you that when you say something is not negotiable and you're actually thinking that it was negotiable that's not true? Mr Di Marco: We're dealing with a sales person. Everything is negotiable. Everyone knows that. That's the way it works in our business and particularly with Behnam everything is negotiable (T646). 262 I reject Mr Di Marco's evidence that he had acted on the basis that TechnologyOne was willing to negotiate a different outcome. It is entirely implausible. There is uncontentious documentary evidence which proves that behind the scenes, TechnologyOne had undertaken extensive internal processes to determine and review what it would offer to Mr Roohizadegan. I am comfortably satisfied that, on the company's behalf, Mr Di Marco presented Mr Roohizadegan with what was intended to have been, and was, a pre-arranged, non-negotiable offer. 263 The evidence is intractable that not only did Mr Di Marco tell Mr Roohizadegan that the offer was non-negotiable, but that that was the fact. I reject his evidence to the contrary. 264 In Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464, the Full Court (Murphy, Mortimer and O'Callaghan JJ) noted (at [165]): To find that a person is not "a witness of truth" is, in substance, to find the person to be a liar. In the circumstances of a court hearing, with evidence given on oath or affirmation, it is also in substance a finding of perjury. It is not a trifle. Of course, it is important that judges are free to make such findings where they are required and where they are justifiable. However, the finding must not only be justifiable, it must be justified. And the place it must be justified is in the court's reasons. 265 It is unnecessary for the Court to record a finding that Mr Di Marco was not a witness of the truth. Human recall is imperfect, and Mr Di Marco may have come to believe that the relevant events must have been as he gave evidence in this proceeding: when in fact they were not. 266 It is sufficient that I record, having regard to the above considerations and those I have recorded below at [979]-[990], that I am satisfied that Mr Di Marco was a highly unimpressive witness and not one whose evidence I am entitled to accept in preference to that given by Mr Roohizadegan unless corroborated by contemporaneous documents or by other evidence which the Court accepts.

[22]

Martin Harwood 267 Mr Harwood gave evidence by way of an affidavit he adopted (Ex R65, CB471-492) that he had retired from his position with TechnologyOne in April 2017. He had been employed by the company in 2009. He became a member of TechnologyOne's Executive Team in July 2009. 268 In late 2014, he was appointed as Operating Officer for Sales and Marketing. As from that time, Mr Roohizadegan had reported directly to him. That had continued until April 2016 when Mr MacDonald had taken over in that capacity. 269 While Mr Harwood did not dispute that as Regional Manager for Victoria the prime measure for Mr Roohizadegan's success was the region's gross profit (T1113, line 15), his affidavit evidence was that licence sales were the key component for business growth at TechnologyOne: 6. … The sale of a software licence results in the creation of an ongoing annuity revenue stream and also all consulting revenues flow from the software licence sale. Licence revenue is the beating heart of the TechnologyOne business and it is the primary measure for the success or failure of the business. The three major regions, Queensland, New South Wales and Victoria constitute two-thirds of the licence revenue of the TechnologyOne business. When I was appointed Operating Officer for Sales and Marketing I looked at where the business was trending and what the current performance was. The overall business target was to grow the business by 10-15% each year. To achieve that level of growth, each of the major regions (Queensland, New South Wales and Victoria) needed to increase their share of growth accordingly. 7. I considered that Benham's region should have been one of the high growth areas, however Victoria's revenue from licence sales declined from 2014 to 2016 and the Victorian business was trending down because there was no future growth in licence sales secured … 270 Mr Harwood's evidence was that because licence sales were the key component of TechnologyOne's growth, the company had restructured its remuneration incentives for new hires in 2015. However, as Mr Roohizadegan was then an existing employee those alterations had not applied to him: 15. Prior to 2015, when TechnologyOne restructured its remuneration incentives for new Regional Managers, Regional Managers were paid on profit of their region and not on growth. Profit was generated from the New License Revenue, Maintenance Revenue and Consulting Services Revenue. This meant that even if New License Revenue was neutral or declining, profit would continue to go up because it was linked to previous licence sales which would continue to generate Maintenance Revenue and Consulting Services Revenue. 16. In 2015 and 2016, Benham was paid over $800,000. In 2014, he was paid almost $1 million. However, his New Licence Revenue continued to go backwards and he could not adapt his sales and management style to address the problems that the Victorian Region was experiencing and to improve the business. As his manager, I considered that Benham was not providing the leadership required nor was he delivering a return on the investment that TechnologyOne had made in him over a number of years. 271 I interpolate that in cross-examination, Mr Harwood acknowledged that he had been responsible for recommending that change to remuneration incentives. However, he denied that the discrepancy between Mr Roohizadegan's grandfathered contractual entitlements based on profit share was of concern to him: "there was no concern from me on what Benham [Roohizadegan] was paid" (T1114, lines 10-25). 272 Mr Harwood gave evidence that he had suggested strategies to improve Victoria's sales performance to Mr Roohizadegan which the latter had resisted implementing (CB474, paragraphs [8]-[9]). Later, he had expressed his concerns in a report to TechnologyOne's board: 11. I also raised my concerns about the performance of the Victorian region with the Board. I prepared the Board Report for the Board meeting on 13 May 2016 in which I raised my concerns about the size of the supporting pipeline. Supporting pipeline in this context meant licence fee sales forecasted for the Victorian region. Attached and marked 'MH-2' is an extract of the Board Report that I prepared in April 2016 for the Board meeting on 13 May 2016. The relevant part of this Board Report was: 'The major risk I need to manage in Victoria for the second half is the size of the supporting pipeline. We feel confident about most of the deals above but the poor supporting pipeline must be addressed quickly to ensure we have adequate cover should any of these fail to close.' 273 His evidence as to the circumstances of his appointment of Mr Metcalfe, which Mr Roohizadegan gave evidence had been effected without him being consulted, was as follows: Appointment of a regional sales manager 17. As the TechnologyOne business grew across the board it became clear to the CEO and the Executive Team that we needed to strengthen the sales management team in the major Regions. In 2015, the Executive Team made the decision to introduce Regional Sales Managers to work under the Regional Managers in the key regions to help develop the business further. The intention of the Executive Team was that the Regional Sales Managers would manage the more junior sales people and the Regional Managers would be freed up to concentrate more on the strategy of the business and the pursuit of the larger opportunities with the more senior sales people in the region. The decision to introduce Regional Sales Managers was also part of succession planning for our Regional Managers, so if one of them left the business, the Regional Sales Manager could take over. 18. Benham was resistant to the idea having [sic] a Regional Sales Manager in Victoria and became very defensive about having a Regional Sales Manager working with him. I believe that he saw this as a threat to his position rather than an opportunity to have more expertise available to manage the sales team and drive growth. This was in contrast to NSW and Queensland where the Regional Managers welcomed the prospect of having an experienced Sales Manager working under them. 19. Because of Benham's reluctance, I decided that I would initially bring in one of the other Regional Managers from a smaller region to assist Benham as an interim step. I asked Richard Metcalfe, the Tasmanian Region Manager to work in Victoria with Benham in the position of Acting Regional Sales Manager. I put Richard in place as a holding strategy to get Benham used to the idea of having somebody running part of the business for him. Richard managed a part of the Victorian sales team and also maintained his responsibilities for the Tasmanian business. Richard attended the Victorian office 3 days per week from March 2015 to February 2016. Richard's job in Victoria was to focus on the sales team, work with them and improve the situation. Richard managed the more junior salespeople and Benham continued to manage the senior sales people. 20. This proved to be a difficult task for Richard because Benham continued to react with suspicion about the arrangement. In or around February or March 2016, Richard return to work in Tasmania full-time for family reasons. 274 His evidence as to the proposition that he had threatened Mr Roohizadegan that one of them would have to go if Mr Roohizadegan insisted on meeting with Mr Di Marco to raise his complaints was as follows: 26. During February 2016, Benham was in Brisbane and requested to meet with Adrian. This was in no way unusual, most of the Region Managers took the opportunity to have a personal catch up with Adrian when they came to HQ. I deny that I instructed Benham not to see Adrian because it was something that was welcomed by both Adrian and me. I was not unhappy about Benham's meeting with Adrian and I deny that I raised my voice or screamed at Benham about it as alleged by him. I had absolutely no problem with Benham meeting with Adrian because this was in line with any other Regional Managers raising issues or concerns with the boss. 27. Adrian would normally ask me what topics a Regional Manager would most likely raise and that was the case for this particular meeting he had with Benham. I advised Adrian that Behnam would likely raise two issues. The first issue I considered Benham would address was that he could not deliver on the level of growth that I had set for the Victorian region and what I wanted was not achievable. I knew that Behnam would raise this issue because we had several discussions about the sales performance of the Victorian region and what my expectations were but Behnam did not agree with the budget that I had set for his region because it was higher than what he wanted to be measured against. 28. The second issue I considered that Benham would address with Adrian was that he would again seek to have his own candidate to be appointed to the position of Regional Sales Manager. However, I explained to Adrian that Behnam had already agreed to appoint Boris. 29. I called Behnam in advance of his meeting with Adrian to let him know Adrian had spoken to me and that I had told him what I thought would be discussed in the meeting. I deny that at any time I said to Behnam, as asserted by him, words to the effect, 'you do not have a right to see Adrian. I am your boss' and 'if you go to this meeting on Wednesday it will be either you or me at TechnologyOne by the end of the day. One of us has to go, Behnam'. This is completely at odds with my belief that it is important that our Regional Managers have a direct line of communication to the CEO. It is ingrained in to the TechnologyOne culture. Even if I had wanted to, I could not stop Behnam from meeting with Adrian. 30. I was called into the meeting with Behnam and Adrian on 3 February 2016. I spoke about the appointment of a new Regional Sales Manager first. I said to Behnam and Adrian during the meeting words to the effect of 'I would not appoint Benham's candidate Phil Pantano because Boris is the right man for the role'. Adrian then confirmed that Boris would be appointed to the Victorian Regional Sales Manager position. I recall that in relation to the issue about the sales figures, Adrian said to Behnam words to the effect of 'we all have to work together. We need to listen to Martin and step up and face the challenges'. I was then asked by Adrian to leave the room. I deny stating words to the effect of 'Benham you might have won the battle, and I have lost the war this time, but I will ultimately win. I am going to scrutinise you, your work and make life difficult for you until you go from TechnologyOne'. I also deny that Benham said to me 'you can scrutinise me all you like, I never have and never will do anything wrong by TechnologyOne.' 275 Mr Harwood's evidence regarding Mr Roohizadegan's contention that he had moved to dismiss Mr Con Tsalkos without consultation with him was as follows: 31. Richard Metcalfe had told me there were a number of people in the Victorian sales team who were not performing satisfactorily and that in particular he and Benham had come to a decision to terminate the services of an employee named Con Tsalkos. Benham and Richard worked on the termination process with Rebecca Gibbons, HR Business Partner. It was a standard practice, when an employee's services were being terminated, for there to be a deed of release and from my understanding, the situation was no different with Con's termination. 32. During the process of dealing with Con's dismissal from the business, I received an email from Behnam about the situation, in which he described either Richard or I as a 'fifth column'. Attached and marked as 'MH-9' is a copy of the email from 18 June 205 to 19 June 2015 between me and Benham regarding the termination of Con's employment. 33. I confronted Benham about his use of the expression 'fifth column'. Behnam apologised to me for his comment and explained what he meant to say. Behnam also said English wasn't his first language and he did not fully understand the expression 'fifth column'. Behnam's complaint was that he had not been kept in the loop about what was happening with Con's dismissal. However, Behnam had instigated the decision to terminate Con and had full knowledge of what was happening with the termination process as he had always been included in emails discussing the termination. 276 Mr Harwood gave the following evidence as to his perception of Mr Roohizadegan's management style: 34. My impression of Behnam was that he is a very nice person at a personal level because he is a dedicated family man and he has a social conscience. However, the opposite is true when it comes to business because Benham's management style left a lot to be desired in that Behnam was autocratic in his role as a manager which resulted in a culture of fear in our Victorian sales team. My perception of the Victorian office whilst under Benham's management was that upon walking in, you would notice signs of the culture of fear because people were unusually quiet and they seemed reluctant to engage or talk to you because they were fearful that they might say something out of turn which would upset Behnam. 35. As Behnam's manager, I did not consider that Behnam could build a mature, self-confident team that was empowered to build the sort of business that TechnologyOne required due to his autocratic management style which negatively affected his staff's ability to deliver the results required by TechnologyOne. This is because Behnam would direct his employees to do something but he would rarely provide guidance or support to them and then he would hold them accountable if something went wrong. 36. Behnam's management style lacked the mentorship element that you would expect from a leader. This is because Behnam did not engage with his sales organisation and lead from the front by helping his sales team grow their abilities. His style was about telling what needed to be done but not working to help show less experienced people how to do it. 277 Tellingly however, Mr Harwood also gave evidence from which it might be inferred that his view of Mr Roohizadegan had already soured well before he had come to the role of Operating Officer for Sales and Marketing: 44. I recall that I started to raise the fact that Benham might not be the right person for the job with Kathy Carr and Adrian as early as 2012. At that time, Roger Phare was Operating Officer for Sales and Marketing and I was running the Industry Solutions Group. My team spent time with the sales teams in the regions working on opportunities because their role was to support the sales teams with industry experience. My team would report back to me and identify issues in Victoria, specifically the fact that the sales team lacked effective leadership from Behnam. 45. I consider that Adrian had a blind spot when it came to Behnam. Adrian did not appear to fully appreciate all of the difficulties with Behnam. In my view, that was because Adrian was never Behnam's direct line manager and did not see first hand what was happening. 278 In his oral evidence-in-chief Mr Harwood testified as to who had attended and what had happened at the meeting of the Executive Team on 26 April 2016: Dr Spry: Now, first of all, who was at that meeting? Mr Harwood: Adrian as the chair of that meeting, me, Stuart MacDonald, Ed Chung and Kathy Carr. Dr Spry: Now, when the meeting started, once you were all gathered at the meeting, when the meeting started who's the first to speak? Mr Harwood: Adrian. Dr Spry: And that's Adrian Di Marco? Mr Harwood: Yes. Adrian Di Marco. Dr Spry: And what does Mr Di Marco say? Mr Harwood: Adrian basically framed what the meeting was - was called for, the fact that he had received an email from Kathy, I believe, on the Sunday that he found shocking, I think was the word he - he used, and that we needed to look at the allegations in that email as a matter of urgency. And at that point I believe - I don't think Rebecca Gibbons was with us when we started, but at that point Rebecca was asked to join the meeting. And Rebecca then took us through point by point the - the email that she had sent to Kathy. … Dr Spry: And did she say anything else about what happened in Victoria? Mr Harwood: She did. Dr Spry: When she was down there on her visit? Mr Harwood: She did. She also said that she had had a meeting with Behnam after her interviews with the - the other various staff members, and that at that meeting Behnam had indicated that he was unhappy and that he was considering taking legal action against Peter Sutching who was the product general manager for our asset management product. 279 Mr Harwood's evidence was that he had not been surprised by what Ms Gibbons had reported "because she had already discussed the matter with me after her meeting in Melbourne" (T1093, lines 22-23). 280 His evidence of what had happened after Ms Gibbons had reported and left the meeting was as follows: Dr Spry: And then what happens after she leaves? Mr Harwood: After she leaves, Adrian said to the people in the meeting room, "Well, what do you think? What are your comments?" The first person to speak was Stuart. And Stuart said, "Well, this is my part of the business. I'm the operating officer for sales and marketing. I will deal with this. I will talk to Benham and I will get to the bottom of this." And I said - then I spoke and I said, "Well, you've only just joined the company, Stuart", which was true. He had been on - in the company for a matter of weeks at that point in time. And I said, "Look, I've been looking after that part of the business for the last 18 months. I'm - I don't want to throw in at the deep end here. I'm happy to come and do that or, in fact, handle that for you if you wish." Dr Spry: When you say … Mr Harwood: Because that should have been handled by Benham - before Stuart had arrived in the company. Dr Spry: When you say "do that" or "handle that", what are you referring to? Mr Harwood: Well, what Stuart was - I was referring to what Stuart was talking about. Stuart said that as the operating officer for that part of the business, Benham was one of his direct reports. He had to take this up with Benham. And he would get to the bottom of it, right. My offer for assistance was to either do that with him or instead of him. Dr Spry: And what - was anything further said during that meeting? Mr Harwood: Yes. Well, Adrian said - Adrian then asked was there any other comments. There was nothing more that - Ed didn't say anything at that point. Kathy Carr was … Dr Spry: And by Ed you mean Mr Chung? Mr Harwood: Sorry, I beg your pardon, Ed Chung, who had taken my role as the OO for products and solutions. And Kathy Carr made no further comments, to the best of my recollection, at that point in time. Adrian then spoke and said, "Well, Benham has to be terminated". That was his comment to that, at which point Stuart again said that, "Well, you know, I'm Johnny on the spot. It's my part of the business." And he said he would handle that. And that was pretty much that meeting over. So there were no dates talked about. The - basically, what had come out was something that could not be tolerated by the business. It was certainly something that, to the best of my knowledge, no one in headquarters had any knowledge of prior to Rebecca going - Rebecca Gibbons going to Victoria and having those interviews with the sales staff. 281 He gave evidence-in-chief of a further meeting on 16 May 2016 as follows: Dr Spry: And who was at that meeting? Mr Harwood: There was myself, obviously Adrian, Edward Chung, Stuart, Stuart MacDonald, Kathy Carr, and I am not sure whether he was at the start, but I am pretty sure that Rod Hooper who was our chief legal counsel was also involved. Dr Spry: And what was discussed at that meeting? Mr Harwood: The imminent termination of Behnam. Dr Spry: And can you recall what Mr Di Marco said, to start with him? Mr Harwood: Yes. Well, Adrian said that the - the departure of Behnam had to happen immediately. He wanted me as the operating officer for consulting to be prepared once - once the termination had happened to be able to get to each of the regional consulting directors that reported to me so that I could tell them because it's - it's a big deal to - to let a - a regional manager go with 10 years experience with the business. It was - it was a major issue. So he wanted to be sure from my part of the business that I was ready to talk to my regional managers to let them know what had gone down. And he also wanted me to be prepared to get down to Victoria and talk specifically with the consultant that lived in Victoria. Victoria had a - had a quite - we had 330 consultants in the whole business, and quite a number of them lived in - in - in Melbourne. So he wanted to be sure that people knew what was happening and what was going to happen beyond that. So that was what he wanted me to do. He talked to Ed about what Ed needed to do, and Ed needed to do a similar thing with his product general managers and, obviously, make sure that they knew. And then from that it got desiccated down to the people that worked for those product general managers as well. So - so what he wanted from us was for us to get our act together to be able to do that. But I - I - I was not required to take any part in what was going to happen with Behnam. That was obviously between Adrian and Stuart with the assistance of Kathy - Kathy Carr and Rod - Rod Hooper. 282 Mr Harwood gave evidence in cross-examination that he had had a practice of keeping notes of his meetings when he had been working at TechnologyOne: Mr Tracey: Now, before I go to the specifics, just a general question. Do I understand that at meetings when you were working at TechnologyOne you had a ring-binder notebook? Mr Harwood: For many meetings, yes, I did. Yes, I'm - I'm old-fashioned. I believe in writing things down. Mr Tracey: So you would take that into various meetings that you had of the executive team? Mr Harwood: Yes. Yes. Various meetings with many different people, and over the - over the years I had hundreds of the damn things. Yes. Mr Tracey: Would you have had that with you at the meeting on 26 April 2016? Mr Harwood: I may have had. I can't recall. Mr Tracey: Now, what has happened to that notebook? Mr Harwood: I got rid of them all the day I retired. I was out of there, so … Mr Tracey: And at the time you got rid of them you knew this proceeding was on foot? Mr Harwood: No. Not by - no, I didn't. I don't think so. It wouldn't have even crossed my mind, this proceeding. I was retired. I was finished. Mr Tracey: No, I'm just asking you whether you were aware this proceeding was on foot at the time you retired? Mr Harwood: I can't recall whether I did or I didn't. What I can tell you is it - it had no … His Honour: Sorry. Sorry? Right. Sorry. Again can I just invite you to - difficult though it may be, just answer the question? Mr Harwood: Okay. Sorry. No, I can't recall. Mr Tracey: No. Because you retired in April 2017; is that correct? Mr Harwood: I did. Mr Tracey: You knew these proceedings had commenced the previous year, in the latter part of 2016? Mr Harwood: No. No, I - I - I was unaware that it started back in 2016. 283 However, Mr Harwood later conceded that in 2016 he had been interviewed by Ms Carr as recorded in an email tendered as exhibit A81 (described as "Email Kathy Carr dated 9 June 2016 and annexures regarding general protections application of applicant") with respect to the allegations Mr Roohizadegan had made. His evidence was as follows: Mr Tracey: Okay. So at that point you did know that there were legal proceedings being brought by Behnam in relation to the termination of his employment? Mr Harwood: Well, I knew that there were some allegations being - being made about me that I refuted. I didn't necessarily know that there was any legal proceedings between TechOne and - and Behnam. Mr Tracey: Well, if there were these allegations around it would have been prudent, would it not, to have kept your notebook of meetings? Mr Harwood: Not at all because the - the comments in this I wouldn't have had in a notebook meeting. It would have been hard when the conversations didn't happen. 284 Mr Harwood acknowledged that he had attended a meeting at the Gold Coast on or about November 2009 with Mr Phare and Mr Roohizadegan, at which Mr Roohizadegan had raised his concern that revenue from the Victorian TAFE SMS had not been allocated to his business unit. His recollection however was that Mr Phare had told Mr Roohizadegan that SMS products were different to other products and that they were run out of Brisbane. (T1100, lines 12-41). Mr Harwood also accepted that he had attended a meeting in Brisbane on 17 June 2010 with Mr Di Marco and Mr Roohizadegan, at which incentives for SMS were discussed. However, he rejected the proposition that Mr Di Marco had "agreed that SMS resides in the region" (T1101, lines 4-5). 285 Mr Harwood strongly disputed a series of questions put to him in cross-examination on the premise that he had demanded Mr Roohizadegan cancel his planned 3 February 2016 meeting with Mr Di Marco and had threatened to scrutinise Mr Roohizadegan until he left Technology One. As to the events in Brisbane on 3 February, his evidence was as follows: Mr Tracey: So I will take you to that day of 3 February, the actual meeting. And Adrian said - well, first of all, the three of you were there in Adrian's office; is that right? Mr Harwood: That's incorrect. Mr Tracey: Were in your office? Mr Harwood: No. Mr Tracey: Where were you? Mr Harwood: I was in my office. Adrian and Behnam were in - in Adrian's office. Mr Tracey: I'm asking you about the time when the three of you are together? Okay. I beg your pardon. Yes, I was - I was asked by Adrian's EA to join them in Adrian's office. Mr Tracey: Yes. She brought you into Adrian's office, where you found Behnam and Adrian; is that right? Mr Harwood: Correct. Mr Tracey: Yes. And Adrian then said to the two of you, "I think the world of both of you. I like you both. What is the issue?"? Mr Harwood: I believe he said words to that effect, yes. Mr Tracey: And Behnam said that he would like to recruit his own sales, to have his own resources; that's what he said initially? Mr Harwood: That's incorrect. Mr Tracey: And he said, "I like to not be undermined. I don't like decisions being made behind my back."? Mr Harwood: That's incorrect. Mr Tracey: And he referred to wanting to recruit Philip Pantano the previous year? Mr Harwood: That is correct. Mr Tracey: And you pointed out Philip Pantano had applied twice in 2016 for a job? Mr Harwood: Correct. Mr Tracey: And he - this is Behnam - he pointed out to Adrian and you that he wanted Philip Pantano as his sales manager? Mr Harwood: Correct. Mr Tracey: And he didn't want to give a guaranteed commission to Boris? Mr Harwood: That is also correct. Mr Tracey: And when he mentioned Philip Pantano, you immediately said, "Who, Philip Pantano? Over my dead body"? Mr Harwood: That's incorrect. Mr Tracey: And you said, "Over my dead body. I don't want Philip"? Mr Harwood: That's incorrect. Mr Tracey: And Behnam said, "But Philip, he's a proven person. He used to work for us as a salesperson and as a sales manager"? Mr Harwood: That's incorrect. He didn't work for us as a sales manager. He worked for us as a - as a sales rep. Mr Tracey: As a sales rep. Behnam said that to you, that Philip Pantano worked as a sales rep? Mr Harwood: I - I can't recall. He - he may have - he may have said that, but I don't he said he was a sales manager, because he only worked in Victoria, and Behnam knew that there was no sales manager in Victoria until we - we put Richard Metcalfe in there on a pro tem basis. Mr Tracey: So he - Behnam said that - Behnam referred to having been forced to having Richard Metcalfe as his sales manager? Mr Harwood: He was not forced, so … Mr Tracey: No. This is what Behnam referred to? Mr Harwood: Yes. He may have done. Mr Tracey: Yes? Mr Harwood: Yes. Mr Tracey: And being forced to have Richard was part of your undermining of Behnam, wasn't it? Mr Harwood: That's incorrect. Mr Tracey: Now, the conversation continues. You say, "I don't want Philip to be your sales manager"? Mr Harwood: I did. Mr Tracey: And Behnam said, "Well, Philip would be reporting to me, Martin, not you". That's what …? Mr Harwood: That - that he did say. 286 Mr Harwood acknowledged that he had been a member of the interview panel which had recommended Mr MacDonald to replace himself as Operating Officer for Sales and Marketing. His evidence was that the interview panel for "low positions" normally consisted of the other Operating Officers who were available. Mr Di Marco had confirmed that recommendation. 287 His evidence as to the overlap period in which they had then shared that role was as follows: Mr Tracey: No, no. That's fine. And as I understand it, on 12 April which is about the time Mr MacDonald commences you organise a telephone conference call with all of the direct reports for your position? Mr Harwood: That's correct. Mr Tracey: And that was so that you could introduce Mr MacDonald to all of his new direct reports? Mr Harwood: That's correct. Mr Tracey: And you said that you and Mr MacDonald would be shadowing each other for a period of six months? Mr Harwood: That's incorrect. Mr Tracey: And the reality is, as I understand it, that you did assist Mr MacDonald in the early stages of his role? Mr Harwood: Yes. But what - the - the arrangement that I came to with Stuart was that I would worked with him in handover mode for a month. Mr Tracey: Right? Mr Harwood: But - but we never got to a month. It was all over in two weeks because of the pressure that I had to take up my new duties as the OO for consulting services. And Stuart was very keen to - to be hands-on himself. So after two weeks our planned handover of the month was over. Mr Tracey: So do I understand that during your - what was your handover, what ended up being your handover, you went down to Melbourne to Stuart for a meeting with the Melbourne office? Mr Harwood: Yes. I - I do believe that I - I went down there. My - my reason for going would have been to - to introduce him for the first time. But I also had another reason to be there to meet a potential candidate for the consulting business. Mr Tracey: And was that on or about 27 April that you went down to Melbourne with him? Mr Harwood: Yes. That would - that would be - be right according to my recollection. Yes. 288 Mr Harwood said he did not recall whether when he and Mr MacDonald were in Melbourne on the occasion when Mr Roohizadegan had complained about his being marginalised. He rejected that Mr Roohizadegan had asked them whether they were trying to get rid of him or trying to make him resign (T1110, lines 22-30). 289 In respect of licence fees in Victoria and other regions Mr Harwood conceded that, notwithstanding TechnologyOne's objective of growing its fees by 10-15% each year, it was inevitable that results in every region by their nature would not smoothly increase year on year. Taken by Mr Tracey to a report of TechnologyOne's summary of licence fees from 2006 to 2017, he gave the following evidence: Mr Tracey: Now, I will just ask you to look first of all at Victoria which is the top row? Mr Harwood: Yes. Mr Tracey: You will see there that starting with financial year 2007 you have a figure of 107 per cent licence fee growth? Mr Harwood: Over the previous year. Yes. Mr Tracey: Over the previous year? Mr Harwood: Correct. Mr Tracey: And then you have a series as you go from across the page to the right? Mr Harwood: Yes. Mr Tracey: A series of percentages? Mr Harwood: Correct. Mr Tracey: Some of which are representative of increased growth and some of which are representative of decreased growth? Mr Harwood: Correct. Mr Tracey: And they vary from year to year? Mr Harwood: They do indeed. Mr Tracey: And I won't ask you to look at every other region, but that's the same reality for each region, isn't it, that you have …? Mr Harwood: Yes, it is. Mr Tracey: … quite a bit of variation? Mr Harwood: Yes, it is. Mr Tracey: So you don't have a consistent trend that is identifiable over that period in each region, do you? Mr Harwood: Over the period 2006 to 2016, no. Mr Tracey: And what you can see, for example, is that in some regions - let's look at Tasmania - you can have figures that change quite dramatically. If you look at financial year '13 and financially year '14 …? Mr Harwood: Yes. Mr Tracey: … you have a figure in the first of those financial years of 52 per cent negative growth? Mr Harwood: Correct. Mr Tracey: And then in the financial year 2014, you have a figure of 284 per cent positive growth? Mr Harwood: Yes, that's right - on - on very small numbers, and that's why … 290 Mr Harwood then conceded that what he had said to Mr Roohizadegan and told Mr Di Marco regarding licences fees in Victoria being at risk of going backwards for a fourth year in a row was incorrect: Mr Tracey: So just a couple of further questions about this, Mr Harwood. It's not true, is it, that, as you said at one point to Mr Di Marco, Victoria was - had been - would be going backwards for a fourth year? Mr Harwood: No, it wasn't correct. It - it should have been a third year. 291 Mr Harwood further conceded that the full year figure for Victoria for 2016 had seen growth of 9.9% in licence fees. However, he observed that Mr Roohizadegan had left by the end of that year. Cross-examined in respect of the import of that observation, his evidence was as follows: Mr Tracey: Well, a large …? Mr Harwood: We got to - yes, full year result was 9.9, but Behnam left, obviously, through - about halfway through - just beyond halfway through that year. Mr Tracey: A few months to go, Behnam left. But he had already secured the La Trobe deal at that point, hadn't he …? Mr Harwood: No. Mr Tracey: … in effect? Mr Harwood: I think - I think La Trobe had not been signed when Behnam left. Mr Tracey: Behnam had, in effect, secured it, and it was just about - it was about to close when he was terminated? Mr Harwood: No. No deal is - is secured until it's signed. Mr Tracey: All of the work had pretty much been done by Behnam on the La Trobe at the time of his termination, hadn't it? Mr Harwood: The deal was well advanced. Okay. Mr Tracey: It was so well advanced that a matter of weeks after Benham's termination it, in fact, closed, namely, in June 2016? Mr Harwood: That may well be correct. I was not running sales then so it wasn't my issue. Mr Tracey: Benham had also undertaken a substantial amount of work on the Wesley College deal at this time? Mr Harwood: I can't recall. Wesley College was one of the deals that - we're going back three, three and a-half years, but Wesley College was on the deals I think that was in his forecast for that year. 292 Taken to the report he had prepared in April 2016 for a meeting of TechnologyOne's board on 13 May 2016, Mr Harwood accepted that the extract from that report he had included in his affidavit omitted any reference to his predictions for the second half of that financial year. His evidence then was as follows: Mr Tracey: So at the time you produced this report, I think you say, at the board meeting on 13 May …? Mr Harwood: Yes. Mr Tracey: … you were comfortable in saying to the board: We feel confident about most of the deals above. Mr Tracey: Do you see that? Mr Harwood: Yes. I do. Mr Tracey: And then you refer to the risk about the supporting pipeline? Mr Harwood: Correct. Mr Tracey: But that doesn't alter the fact that you were able to say to the board at that point, 13 May that …? Mr Harwood: Correct. Mr Tracey: … you were confident about those deals closing? Mr Harwood: Yes. I had - I had confidence that we could get to another six million and get to somewhere between nine and 10 which is what happened, but it certainly wasn't the 16 that Behnam had been talking about. Mr Tracey: I didn't ask you about that? Mr Harwood: No. That's true. Mr Tracey: I'm just asking you about whether you were …? Mr Harwood: That's true. Mr Tracey: … convinced at that point …? Mr Harwood: Yes. Mr Tracey: … 13 May that you were confident that those deals would all close in that financial year? Mr Harwood: I had confidence that those deals would close. Yes. Mr Tracey: Yes. And that was why you were expecting a much stronger half …? Mr Harwood: Correct. Mr Tracey: … to that financial year …? Mr Harwood: Yes. Mr Tracey: … for Victoria? Mr Harwood: Yes. For these second half. Mr Tracey: For the second half? Mr Harwood: Yes. Given that we were 35 per cent down on the previous year for the first half we needed to do that. Mr Tracey: And if you look at those particulars deals, the seven deals, you would agree with me that Behnam was involved in facilitating all of those deals, wasn't he? Mr Harwood: Well, they were all part of his remit. He's responsible for everything that happens in Victoria from a sales perspective. So clearly. 293 In cross-examination, Mr Harwood also accepted that he had made no reference in his sworn affidavit to Mr Di Marco having decided to dismiss Mr Roohizadegan at the meeting of the Executive Team held on 26 April 2016. He conceded that his affidavit had included a reference to that decision being made at a subsequent meeting held prior to 12 May 2016. In that regard he gave the following evidence: Mr Tracey: … and you said: I do not recall when that discussion took place, but I do recall that it happened prior to an incident between Behnam and Stuart on 12 May 2016. ? Mr Harwood: Yes. Correct. Mr Tracey: And then you say: In this meeting it was decided that Behnam's employment with TechnologyOne had to be terminated. ? Mr Harwood: We had that - that reaffirmed what was said on the meeting of the 26th. Mr Tracey: Well, you never referred at all in relation to the meeting of the 26th as having discussed the termination of Behnam's employment at that meeting, did you? Mr Harwood: We did. Mr Tracey: Well, no. In your affidavit, I'm putting to you, Mr Harwood, you referred to the 26 April 2016 meeting, but you did not say in your affidavit that a decision was made to terminate Behnam's employment at that 26 April meeting, did you? Mr Harwood: Well, that was an omission, but it was certainly said. Mr Tracey: It was a pretty significant omission, wasn't it, Mr Harwood, if it were true? Mr Harwood: It's an omission. Mr Tracey: Yes? Mr Harwood: There's no doubt at that. 294 Mr Harwood further conceded that he had been mistaken in denying any knowledge that Mr Roohizadegan had threatened legal action in respect of bullying by Mr Sutching. However, he denied that that fact had had any bearing on the thinking of those attending the meeting of the Executive Team on 26 April 2016. To explain, he gave the following evidence: Mr Tracey: And that was a matter of great concern at the meeting, wasn't it, that he …? Mr Harwood: No, not at all. Mr Tracey: … was planning to take action? Mr Harwood: Or the meeting. I don't - do not believe anyone in that meeting was particularly bothered about that. What we were bothered about was something that came out as a surprise to all of us that there was significant bullying, intimidation and humiliation happening to our employees. Mr Tracey: Hang on a minute, Mr Harwood. Significant bullying and intimidation and the like, these were only allegations, weren't they? Mr Harwood: They were allegations of people who were working for Benham. Mr Tracey: Yes, and Benham - had these allegations been put to Benham to your knowledge when you were discussing them at the 26 April meeting? Mr Harwood: Not to my knowledge. Mr Tracey: No. So how possibly could you form a reasonable belief that any of them had any basis whatsoever? Mr Harwood: Because I knew the people concerned and I had no reason to believe that they would lie. Mr Tracey: Well, surely you've got to put it to Benham to find out whether or not he says they're true? Mr Harwood: I didn't have to put it to Benham. Mr Tracey: Well, yes, you did as a matter of fairness before you jumped to a conclusion that these people were making truthful allegations? Mr Harwood: I still believe they were making truthful allegations. Mr Tracey: So you're not willing to accept that that was completely unfair of you just to jump …? Mr Harwood: Not at all. Mr Tracey: … to that conclusion. You're aware that there was no investigation into those allegations undertaken? Mr Harwood: I'm completely unaware at that stage. Mr Tracey: You didn't call for such an investigation to occur? Mr Harwood: It wasn't my duty to do that. 295 Mr Harwood denied that it had suited him to believe the allegations against Mr Roohizadegan: I had no reason to have any malice towards Benham, but I had every reason to believe that those people would not make up those stories. I believed that that then and I believe that now. 296 Taken to passages in his affidavit that refer to Mr Di Marco having requested that a third meeting of the Executive Team be held on 16 May 2016 to discuss whether Mr Roohizadegan should be dismissed, Mr Harwood gave the following evidence: Mr Tracey: And then there's a third meeting, as I understand it, which is on - which Adrian requests on 12 May 2016 …? Mr Harwood: That's correct. Mr Tracey: And that's him requesting that the executive team meet on 16 May …? Mr Harwood: Correct. Mr Tracey: … 2016? Mr Harwood: That's correct. Mr Tracey: And you've referred to that in your affidavit again in a part that is not read. The heading to the meeting invitation was "discuss the strategy for Melbourne"? Mr Harwood: Yes. Mr Tracey: And then you said - you deposed: In the 16 May 2016 meeting, the executive team talked about the fact that Benham's employment with TechnologyOne should be terminated. ? Mr Harwood: That's correct. Mr Tracey: And that was what you deposed in your affidavit? Mr Harwood: That's correct. Mr Tracey: And the reason that it was the case that the executive team talked about the fact that Benham's employment with TechnologyOne should be terminated - this is on 16 May …? Mr Harwood: Yes. Mr Tracey: … was because at that point, it had still not been decided that Benham's employment would be terminated. That's right, isn't it? Mr Harwood: That's not correct at all.

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Consideration 299 As Dr Spry submits, and I accept, Mr Harwood had an attractive and open manner when giving his evidence. He exhibited the natural confidence of a man accustomed to the good regard of others. I accept that evaluated on demeanour and presentation alone, Mr Harwood gave every appearance of being a credible and persuasive witness. 300 I accept that Mr Harwood was a savvy and experienced senior executive with a strong track record in TechnologyOne. I accept that it was on his recommendation that TechnologyOne changed from a method of incentivising its new Regional Managers on a Profit Before Tax basis to one based on licence fees. It is entirely understandable in those circumstances that Mr Di Marco would have valued Mr Harwood's contribution to TechnologyOne, and reposed great confidence in him. 301 However, I have formed a poor impression of Mr Harwood's credit. 302 Dr Spry submits that the Court should accept Mr Harwood as a credible witness in these proceedings because he "did concede he had interactions" with Mr Roohizadegan. However, such a limited concession does not justify the Court accepting that Mr Harwood was frank and truthful when giving his evidence. 303 A finding by the Court that Mr Harwood had had "interactions" with Mr Roohizadegan was inevitable. 304 "Interactions" is however an altogether too euphemistic expression to describe the circumstances as I accept occurred. In the specifics of this proceeding I have concluded that much of Mr Harwood's evidence cannot be accepted. In particular it was entirely unsatisfactory with respect to his history with, and conduct towards, Mr Roohizadegan. Notwithstanding the seriousness of my making such a finding, I am satisfied that in those respects Mr Harwood sought to downplay his antipathy and history of antagonistic conduct towards Mr Roohizadegan in contrast with what he knew to be the truth. I am also satisfied that Mr Harwood's generally calm confidence and reassuring demeanour was something of a veneer. On occasions, under pressure in cross-examination Mr Harwood displayed an edge of anger. 305 Prior to the disputed events of 2016, it is uncontentious that in September 2015 Mr Harwood had directed Ms Carr to draw up a script for Mr Roohizadegan's dismissal. He did so shortly after he had been told by Mr Di Marco that he was to be held accountable to end the "revolving door" of staff in Victoria. What had prompted Mr Di Marco's intervention on that occasion was that Mr Roohizadegan had complained to him that Mr Harwood had sacked two members of his sales team without having given either of them any opportunity to improve their performance. 306 What may have particularly galled Mr Harwood and prompted him to direct Ms Carr to plan for Mr Roohizadegan's termination was that Mr Roohizadegan (I accept provocatively) had complained in an email which he had copied to Mr Di Marco that he "cannot run [his] region in parallel with a fifth column" (Ex R12, CB4274-4275).Whether that was the trigger for Mr Harwood asking Ms Carr to put in place a plan to dismiss Mr Roohizadegan need not be conclusively determined. That is because I am satisfied in any event that I am entitled to find that there was a history between the two men in respect of which Mr Harwood had come to resent Mr Roohizadegan for disrespecting him and going over his head to Mr Di Marco whenever their views had differed. In that regard, Ms Carr gave unchallenged evidence as follows: Mr Minson: So you will see after paragraph 4 you have a heading in your affidavit called 18 - sorry. You have a heading over on page 457 called Background to the 18 May Meeting. And this is where you jump back in time to the beginning in time of …? Ms Carr: Yes. Mr Minson: … what you describe as the long history. And you go on to give some examples of that long history. And the first is that Mr Harwood had told you that Benham didn't respect him and was often very rude towards him? Ms Carr: Correct. Mr Minson: Is that right? And an example of that was that even though Martin was Benham's boss, Benham would often escalate complaints over his head directly to Adrian? Ms Carr: Yes. Mr Minson; And Martin felt that that disrespected him; is that right? Ms Carr: Yes. 307 That his antipathy had a long history is consistent with Mr Harwood's own acknowledgement that he had started to raise the fact that Mr Roohizadegan might not be the right person for the job with Mr Di Marco and Ms Carr as early as 2012. That he resented Mr Roohizadegan's closeness to Mr Di Marco is reinforced by his own evidence: he had considered Mr Di Marco to have had a "blind spot" when it came to Mr Roohizadegan. 308 I note that around that same time as he was instructing Ms Carr to put in place plans to terminate Mr Roohizadegan, Mr Harwood had given Mr Roohizadegan a "B" rating when he had applied TechnologyOne's internal ABC assessment tool. A manager who has rated a subordinate as "successful, consistently achieves performance expectations" (Ex A14) can be expected to find it challenging to persuade a court that they were acting other than vindictively if at the same time they were instructing the head of their company's human resources department to prepare a plan for that subordinate to be dismissed. 309 Dr Spry submits that Mr Harwood was cross-examined extensively regarding the events of early 2016, and was not shaken in his strong denial of having said to the Applicant "one of us has to go" and that he would scrutinise Mr Roohizadegan if he did not leave TechnologyOne. 310 Dr Spry submits that Mr Harwood had no reason not to tell the truth, and accordingly that his version of events should be preferred. 311 I reject that Mr Harwood had no reason not to tell the truth. Retirement does not immunise a person from wanting to avoid the adverse reputational consequences of a potential finding as might reveal them to be vindictive and incapable of putting aside their resentment of a subordinate who had gone over their head to complain. Having regard to the sequence of events that transpired, Mr Harwood was too scrupulous to deny anything that might suggest he entertained any resentment of Mr Roohizadegan for his version of those events be accepted as credible. 312 I am unpersuaded by Dr Spry's submission that Mr Harwood's strong denial of using the words Mr Roohizadegan gave evidence of him saying is dispositive. His denials are inconsistent with the contemporaneous notes Mr Roohizadegan made of their exchanges (Ex A11) which record Mr Harwood demanding that he not attend a meeting with Mr Di Marco, and explicitly telling him that if he did then "one of us has to go". I have earlier explained why I have accepted Mr Roohizadegan's contemporaneous notes in preference to Mr Di Marco's recall of what was said and done where they conflict. The same equally applies in Mr Harwood's instance. To make it plain, I prefer and accept Mr Roohizadegan's evidence supported by his contemporaneous notes where it conflicts with that of Mr Harwood with respect to the words spoken between the two of them. 313 That conclusion has broader repercussions. In his affidavit at paragraphs [26] to [30], Mr Harwood provides an entirely different detailed version of what he asserts was said and occurred. He asserts in paragraph [26] he "had absolutely no problem with Benham [Roohizadegan] meeting with Adrian Di Marco because this was in line with any other Regional Managers raising issues or concerns with the boss". In light of what had previously transpired and Ms Carr's evidence as discussed above, I am satisfied that Mr Harwood did resent Mr Roohizadegan going over his head to the boss. In those circumstances, I reject that his detailed alternative account can be attributed to honest but false recall. It was knowingly false. 314 Mr Harwood's willingness to give false evidence in that regard causes me to hesitate to accept any part of his evidence relating to his dealings with Mr Roohizadegan. 315 My hesitation is reinforced by my scepticism of his explanation for destroying his extensive collection of notebooks as may have contained a record of the relevant events. 316 It may be recalled that Mr Harwood gave evidence that he was "old-fashioned" and had believed in "writing things down" (T1111). He had had a practice of taking ring binder notebooks into meetings; his evidence was that "over the years I had hundreds of the damn things" (T1111). Mr Harwood retired from his employment with TechnologyOne nearly a year after Roohizadegan was dismissed. His evidence was that he had disposed of all his notebooks on the day he retired (T111). 317 Mr Tracey asked Mr Harwood whether he had disposed of the notebooks after he had become aware that this proceeding was on foot. Mr Harwood said that he could not recall whether that was the case (T1111). However, he conceded that no later than 9 June 2016: I knew that there were some allegations being - being made about me that I refuted. I didn't necessarily know that there was any legal proceedings between TechOne and - and Behnam (T1115-1116). 318 It is a matter of record that Mr Roohizadegan filed an originating application in these proceedings on 19 August 2016. Lawyers for TechnologyOne filed a notice of acting on 23 August 2016. It is beyond commonsense that knowledge of that proceeding would not immediately thereafter have been the subject of widespread discussion within the leadership of TechnologyOne. I am satisfied that it is improbable that it would not have come to Mr Harwood's notice. 319 It is accordingly implausible to a degree as entitles me to infer a want of frankness on his part that Mr Harwood had no recall of disposing of his notebooks after he had become aware of these proceedings. 320 I also have no confidence in Mr Harwood's credit with respect to the evidence he gave about the prospect of licence fees in Victoria under Mr Roohizadegan's leadership going backwards for a fourth year. 321 It may be accepted that when in cross-examination he was asked about that claim, Mr Harwood immediately conceded that he had not been correct. Given however that he had just been shown TechnologyOne's records as demonstrated that in the first of those four financial years Victoria had generated 77% growth, that concession was inevitable. However, Mr Harwood conceded only that what he had claimed had been wrong because "it should have been for a third year". 322 It was only after painful extraction that Mr Tracey obtained Mr Harwood's acknowledgement that in a report to the Board in April 2016 he had expressed confidence, having regard to seven particular deals including a large one with La Trobe University, that the third year would also see growth in Victoria's licence fees. It was similarly only after painful extraction that Mr Harwood conceded that those were deals for which Mr Roohizadegan had been responsible. He ultimately did not dispute that there had been growth of 9.9% in licence fees for Victoria in that third year. 323 I am satisfied that even if Mr Harwood is to be given the benefit of the doubt in that he may have been honestly concerned about the prospect of growth in the third year at the time he initially raised the matter with Mr Roohizadegan, by April 2016 he knew (and TechnologyOne had been advised at board level) that licence fees in Victoria would not decline in that financial year. 324 My poor impression of Mr Harwood's credit was reinforced by his responses under cross-examination with respect to TechnologyOne employee Peter Sutching. In his affidavit of 20 December 2017, Mr Harwood had deposed that: I was not aware at the time of [the 26 April 2016 meeting] that Benham made a complaint to Rebecca on 20 April 2016 threatening to bring legal proceedings because of alleged bullying by Stuart, Peter [Sutching], Marie or myself. I did not become aware of this until these proceedings. This was not discussed in the 26 April meeting. 325 After Mr Harwood was shown a copy of the email he had received from Ms Gibbons on 24 April 2016, he conceded that he had known from that time that Mr Roohizadegan had made a bullying allegation with respect to Peter Sutching and was "considering legal action due to this" (T1058-1059). 326 His denial in his affidavit of his having known that Mr Roohizadegan had made a bullying complaint and was threatening legal action is in those circumstances so implausible as to invite derision. 327 Notwithstanding the caution a court should adopt in making such a finding, for the reasons I have given I am satisfied that Mr Harwood was not a witness of the truth in respect of the evidence he gave concerning his relationship with and dealings with respect to Mr Roohizadegan. 328 I should however also say something regarding Mr Tracey's submission that Mr Harwood was not a satisfactory witness because he sought to claim in the witness box, for the first time, that the decision to terminate the Applicant's employment had been made in the 26 April 2016 meeting. The obvious truth of that criticism can be accepted. On one level however it might be thought to be at best a trivial point, because every other witness called on behalf of TechnologyOne who attended that meeting confirms that Mr Di Marco stated that on that occasion. 329 However, the point has far more significance than at first sight it appears. It is uncontentious that Mr Harwood had prior knowledge of the content of Ms Gibbons' email. Ms Carr's evidence is that when Mr Di Marco had sought the opinion of others in the meeting, Mr Harwood had responded "You know my views" (T1027, line 27). Ms Carr's evidence is that she inferred from his reply that Mr Harwood and Mr Di Marco had already spoken about what was to be done before the meeting. 330 I therefore do not discount that Mr Harwood's otherwise puzzling omission to record that the decision to dismiss Mr Roohizadegan was made on 26 April 2016, and his affirmative assertion that the decision had been made some days later after the State Managers' Meeting (T1126, line 20-T1127, line 11), was simply the truth as Mr Harwood understood it at the time he swore his affidavit. 331 As a result of his and Mr Di Marco's prior discussions Mr Harwood may have known that whatever Mr Di Marco had agreed to say during the meeting of the Executive Team later that day, that as at 26 April 2016, he as the ultimate decision maker was yet to be convinced that it was, or would be, necessary to dismiss Mr Roohizadegan.

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Stuart MacDonald 332 Mr MacDonald gave evidence that he is currently employed as TechnologyOne's Chief Operating Officer. He had commenced employment with the company on 11 April 2016 in the role of Operating Manager for Sales and Marketing. He initially worked in that capacity with Mr Harwood "who was transitioning out of that role" for a planned two month transition period (Ex R56, CB443 [44]). 333 Mr MacDonald's evidence is that once he was appointed to that positon, Mr Roohizadegan reported to him. He had formed the opinion that Mr Roohizadegan was not able to transition to effectively manage the maturing business. That was because he was not able to "release his control of the [sales] team's activities to allow them to do their sales team activities" (CB437, [11]). 334 Mr MacDonald gave evidence to the effect that he had formed the view that Mr Roohizadegan was taking advantage of TechnologyOne: 14. Benham's remuneration relied on him achieving profits and, in my opinion, he gave no consideration to the growth of the business. The Victorian region continued to profit despite stagnant and/or declining licence fee sales (which is how TechnologyOne measures growth). Benham was still earning a lot of money even without growing the business by selling new licences because the Victorian region continued to show profit due to income generated through other annuity revenue streams such as Annual Service and Maintenance fees and Consulting Services fees. These fees were generated from previous licence sales. 335 His evidence about why he instructed Mr Roohizadegan not to attend TechnologyOne's Bass Coast Shire presentation was as follows: 22. In my view, it was not a valuable use of Benham's time to go to the Bass Coast Shire presentation. I did not make this decision for any reason other than the fact that a lot of people were already going and Benham did not need to go. I was not aware that Behnam had made a complaint against Martin [Harwood] to Adrian Di Marco on 3 February. I was also not aware that Benham had made a complaint about unpaid incentives. I only became aware of these issues when preparing this affidavit in the course of these proceedings. 23. Adrian Di Marco became aware of my instructions that Behnam was not to attend the Bass Coast Shire presentation. Adrian asked me why I did not send Behnam to Bass Coast Shire and I advised him that I did not consider that it was an efficient use of resources. I do not recall the specifics of what Adrian told me, however I interpreted Adrian's instruction to allow Behnam to attend the Bass Cost Shire presentation as meaning that I should 'back off' on Behnam because I had bigger issues to deal with at the time. 24. It appeared to me that when Benham did not go to the Bass Coast Shire presentation he believed there was a perception that Marie Phillips had won an argument about it and that by excluding him from the Bass Coast Shire presentation he was now being marginalised in TechnologyOne. I did not consider that his concerns were legitimate at that stage as I had not even met Benham face to face. I recall that Benham said words to the effect of 'I am highly embarrassed by this (Bass Coast Shire presentation) and everyone thinks that Marie has won'. I was aware that Behnam was referring to an email trail between Peter Sutching, Marie and me. In the email trail Peter and Marie expressed the view that Benham did not need to attend the Bass Coast Shire presentation. Benham disagreed with their view and took offence at what appeared to be, in his view, Peter and Marie trying to tell him how to run his region. Attached and marked as 'SDM-2' is a copy of an email trail between Marie, Benham and me from 11 April 2016 to 13 April 2016 about who would attend the Bass Coast Shire Presentation. 336 He later acknowledged that he had received complaints from Mr Roohizadegan about his having been bullied by Marie Phillips and Peter Sutching (CB442, [39]-[42]) in respect of their interference in his management of his region. 337 Mr MacDonald gave the following evidence as to what he had said to Mr Roohizadegan after his having met with the sales staff of the Victorian region: 51. I recall speaking with Benham about his management of the sales team after my business review of the Victorian region. To my mind, Benham needed to move away from acting like a senior sales persons and he needed to start managing his sales team because the Victorian region was lacking effective management. I had a conversation with him on the phone and I recall that I said words to the effect of 'You've got to take this energy and put it into your team. You can't control it. You've got to take the energy you have which I'm proud that you have and I want to harness, but you've got to grow your team with that energy. You can't contain it. We hire these people, we go through the interview process, we pay them well and we need to engage them to do the job that they do. If you control like you do, we will never succeed because we can't get that maturity curve'. 338 His oral evidence-in-chief, after formalities, commenced as follows: Dr Spry: Now, Mr MacDonald, if I could just ask you some questions about 26 April 2016. Now, you will recall from the day previous you were copied into, or you received an email from - ultimately from a Ms Gibbons about ...? Mr MacDonald: Yes. Dr Spry: … about her visit to Victoria? Mr MacDonald: Yes. Dr Spry: Now, did you read that email …? Mr MacDonald: Yes. Dr Spry: … at the time? And what was your reaction to it? Mr MacDonald: It was in line with my expectations. Dr Spry: And what were those expectations? Mr MacDonald: That there was an issue in the Victoria office related to the team not being - the workplace was not a comfortable place for them to work in. Dr Spry: And what led you to that view prior to receiving the email from Ms Gibbons? Mr MacDonald Multiple points. Point 1 would be I had spent some time in the region. I had met with all the sales people prior to and I had got the same sense during those one-on-one meetings that I had. I had spent some time with Benham himself and had seen the way that he acted related to issues, and so validated it again. And then there was an issue that we were trying to get a dinner organised with a customer from Melbourne Uni, and the challenging exercise was heavy going there. It all validated the controlling nature that I was seeing. Also through the interviews or discussions I had with the sales team, all validated through that email. 339 His evidence was that prior to the meeting of the Executive Team, he had attended a meeting with Mr Harwood and Ms Carr because "we wanted to understand each other's position before we went in …": Dr Spry: And what was your position that you expressed at that meeting? Mr MacDonald: My position was I did not believe that Benham had the capability to grow the region and based on that key point, that we needed to do something to resolve that. Dr Spry: And when you say "we needed to do something to resolve it", what did you have in mind? Mr MacDonald: To move him on. Dr Spry: And when you say "move him on", what do you mean by that? Mr MacDonald: To terminate his employment. 340 He gave the following evidence as to the meeting of 26 April 2016: Dr Spry: This is the meeting following the short meeting with - the meeting between Ms Carr, Mr Harwood and … His Honour: On 26 April? Dr Spry: On 26 April, yes. So we're on 26 April. There's a meeting that you've been invited to with Mr Di Marco, Mr Chung, Ms Carr, Mr Harwood and yourself - 26 April. Now could you tell the court what Mr Di Marco said during that meeting? Mr MacDonald: Yes. It was Adrian Di Marco's meeting. He ran the meeting. He asked for our position. We all gave our position. At the end of that Adrian concluded that we needed to terminate Behnam and to draw up plans His Honour: Sorry. Just, again, it would assist if you were just a little slower? Mr MacDonald: Sorry. I apologise, sir. Dr Spry: What did he say first when the meeting started? Did he start speaking? Mr MacDonald: It was Adrian's meeting so he absolutely started speaking. He … Dr Spry: And what did he say? Mr MacDonald: He asked for our position. He wanted to know Martin's position, Kathy's position and my position. So we provided our position. Dr Spry: At some point did Ms Gibbons come to this meeting? Mr MacDonald: I don't recall. Dr Spry: Okay. Sorry. I'm sorry to interrupt you. Keep going? Mr MacDonald: Yes. It was the basis of the email from Ms Gibbons that was - that was the conduit that brought us all together. And through that review, Adrian saw that there was a - an untenable issue that needed to be resolved. And as a conclusion of Ms Gibbons' email, Martin's feedback of history, my feedback related to what I've seen in the region and the history related to growth, it was decided by Adrian that we needed to move on. Dr Spry: Now, following that meeting, did you then plan any role in taking any steps to facilitate the termination of Mr Roohizadegan's employment? Mr MacDonald: Yes. Dr Spry: And what were those steps? Mr MacDonald: I was asked to be involved in building the plan to terminate Behnam as a result of the decision by Adrian. And so - there was a communication plan developed. And also, it was understood that I would be the one terminating through that termination plan. Dr Spry: And when was that to occur? Mr MacDonald: Somewhere around 6 or 9 May, from memory. Dr Spry: Clearly that didn't happen. Why didn't that happen? Mr MacDonald: All right. If I could go back. It was - it was supposed to - as I remember it, supposed to transpire after confirming the La Trobe opportunity and prior to the State Manager meeting. Dr Spry: Right? In that window. Why did it not happen? Yes? Mr MacDonald: When we gave our draft communication plan to Adrian, he reviewed it, didn't think that it was complete enough and he also wanted to look at the compensation package because he didn't think it was fair enough. And he also decided that he should be the one to do that work. 341 Mr MacDonald gave no evidence-in-chief as to the events of 12 May 2016 in respect of which Mr Roohizadegan had complained that he had been bullied. 342 In cross-examination Mr MacDonald initially continued to maintain that he had visited Melbourne in the first fortnight following his appointment for a period of "two days, a day and a half" (T969, line 30-T970, line 7) during which time he had met both Mr Roohizadegan and his staff and that this had informed his input to the meeting of TechnologyOne's Executive Team on 26 April 2016. He rejected that his first visit to Melbourne was on 27 April 2016: after that time at which on his evidence Mr Di Marco had already made the decision to terminate Mr Roohizadegan: Mr Tracey: When do you say that the first meeting was? Because you don't mention a date in your affidavit? Mr MacDonald: I would have - I would have assumed it was within the first 10 days. In that space. It was prior to the 26th. 343 Mr Tracey then put to Mr MacDonald that Mr Roohizadegan had given evidence that the first time they had met had been on 27 April 2016. Mr MacDonald replied that he did not believe it to be possible that Mr Roohizadegan's evidence was correct (T973, lines 17-20). 344 Obtaining the appropriate concession to the contrary was stubbornly resisted by Mr MacDonald, but ultimately achieved: Mr Tracey: Can you please look at court book volume 10, Mr MacDonald. Can you go to page 5656 - I'm sorry, 5657, Mr MacDonald. His Honour: Five-six … Mr Tracey: Five-seven, your Honour. Mr MacDonald: 5657? Yes. Mr Tracey: Yes. And I'm just going to see if this might refresh your memory? Mr MacDonald: Yes. Mr Tracey: If you could look at an email on that date from Behnam to yourself; do you see that? Mr MacDonald: Yes. Mr Tracey: And he refers to the dinner being organised with Melbourne University? Mr MacDonald: Yes. Mr Tracey: And, as I understand it, this is a topic you mentioned in your affidavit as well? Yes. Mr Tracey: Now, if you then look at the email above that, which begins on page 5656, you have an email on 25 April in that chain - same chain of emails where Behnam writes to Adrian? Mr MacDonald: Yes. Mr Tracey: Do you see that? And then he - he begins with: Hi Adrian, I am awfully sorry I have to escalate to you Do you see that? Mr MacDonald: Yes. Mr Tracey: And this is something you refer to in paragraph 36 of your affidavit? Mr MacDonald: Yes. Mr Tracey: You say you became aware Behnam escalated the situation to Adrian, is your evidence in your affidavit? Mr MacDonald: Yes. Yes. Mr Tracey: And that's this escalation; is that right? Because you say: I became aware that Behnam escalated the situation to Adrian, as Adrian sent to me and Edward Chung a copy of Behnam's email dated 25 April 2016 at 11.49 pm. …? Mr MacDonald: Yes. Mr Tracey: And this is that email? Mr MacDonald: Yes. Mr Tracey: And then if you turn the page to page 5657, the very top of the page, Behnam says: Even though Stuart and I have not met yet - Mr Tracey: Do you see that? Mr MacDonald: Yes. Mr Tracey: Do you agree with me, having read that, that as at that point you had not yet met Behnam? Mr MacDonald: As at the 25th, yes. Mr Tracey: Yes. So when you decided that he was not - that you wanted to get rid of him, if I can put it in those terms, you hadn't even met him at that point, had you, Mr MacDonald? Mr MacDonald: I'm trying to remember. Mr Tracey: I see you're checking your affidavit, Mr MacDonald. It's pretty clear, isn't it, that you had never met him at the point you formed the view that he had to go? Mr MacDonald: Just to clarify, I'm looking at the email you asked me to look at, so I'm just reading the email, so … Mr Tracey: Okay. You're looking at the email. Sorry. His Honour: There's another reference at the middle of - the third paragraph of the email below. The direct email from Mr Roohizadegan. Mr Tracey: Perhaps just to assist you further, Mr MacDonald, I have found another email, 5657. If you go to that, please. Are you at 5657? Mr MacDonald: Sorry, I'm still finishing that. Mr Tracey: So if you could go to this. This is just again to refresh your memory? Mr MacDonald: Yes. Mr Tracey: An email sent from Behnam to yourself on 25 April 9.15 pm - in the third line - third paragraph, sorry: Even though we have not met yet in your two weeks at Technology One, etcetera. Now you're satisfied, surely, on the basis of that email that you hadn't yet met as at 25 April; is that right? Mr MacDonald: Could you point me to that again? Mr Tracey: 5657? Mr MacDonald: Yes. Mr Tracey: An email from Behnam to yourself? Mr MacDonald: Yes. Mr Tracey: 25 April 2016 at 9.15 pm? Mr MacDonald: Yes. Fourth paragraph. His Honour: Third paragraph? Yes. Mr Tracey: Third paragraph …? Mr MacDonald: Yes, yes. Mr Tracey: … excluding the greeting: Even though we have not yet met yet in your two weeks at Technology One - Behnam says? Mr MacDonald: Yes. Mr Tracey: Surely you can be satisfied on the basis of that email that you hadn't met Behnam as of 25 April 2016? Mr MacDonald: Face to face. Mr Tracey: Face to face; is that right? Mr MacDonald: Yes. Mr Tracey: Yes. So the first meeting - it's correct, isn't it, was on 27 April in the morning? Mr MacDonald: I am not confident of the date. Definitely in the morning. I am not confident of the date. Mr Tracey: It must have been after the 25th, though, mustn't it, of April? Mr MacDonald: Yes. 345 In cross-examination Mr MacDonald gave the following evidence in respect of what had transpired during a video conference in which he had participated with Mr Roohizadegan, Mr Kelly and Mr Ivancic on 9 May 2016: Mr Tracey: Yes, thank you, your Honour. And, Mr MacDonald, as I understand it, on 9 May you have a video conference with Behnam and Duncan Kelly and Boris Ivancic. Does that ring a bell? Mr MacDonald: To clarify, I think it was a video conference of - of computer screens, not face to - you know, not a video conference of faces, as I remember. So it was computer screen sharing. Mr Tracey: Right? Mr MacDonald: Just to clarify. But yes, that's … Mr Tracey: But the topic was forecasting? Mr MacDonald: Absolutely. Yes. Mr Tracey: Yes. You recall that. Now … His Honour: So it had audio, not …? Mr MacDonald: Yes, but no video. Sorry. It was sharing screens. Mr Tracey: And the conference began with Behnam saying to you, "Good news. We have upside on our sales forecasts. We have additional sales which our forecasts would go up when we present". Do you recall him saying that? Mr MacDonald: It's possible, yes. Mr Tracey: Your response, though, as I understand it, was, "You fucking two, get your forecasts together"? Mr MacDonald: No. Mr Tracey: Behnam responded, "I don't understand. We have an upside to our sales figures that we are going to present. Why are you swearing at us?" That's what he said to you, isn't it? Mr MacDonald: No. Mr Tracey: Mr Ivancic has described that conversation as one in which you became extremely frustrated and said words to the effect of, "Will you two get your fucking act together and stop fucking around. This is a fucking joke". You said that, didn't you? Mr MacDonald: No. Mr Tracey: He describes in his evidence your behaviour as a tirade of swearing. That's what happened, isn't it? Mr MacDonald: No. Mr Tracey: You swore more than once. That's correct, isn't it? In this meeting? Yes? Mr MacDonald: No. Mr Tracey: You asked that question in this meeting because you've sworn on other occasions towards Behnam? MR MacDonald: Yes. Sorry. No. 346 However, after other contextual matters had been put to him by Mr Tracey, Mr MacDonald finally conceded: Mr Tracey: So, 9 May you say you don't - you didn't swear at all in the forecasting meeting? Mr MacDonald: I didn't say that. Mr Tracey: I'm asking you. Did you swear or did you not swear during the forecasting meeting on 9 May Mr MacDonald: I did. 347 In cross-examination, Mr MacDonald gave evidence as to the disputed events of 12 May 2016 as follows: Mr Tracey: Let's - let's - let's look at that day, then. This is the State Manager's meeting in Brisbane, isn't it? Mr MacDonald: Yes. Mr Tracey: So Behnam is up there as well as yourself at the meeting? Mr MacDonald: Yes. Mr Tracey: And Gareth Pye is there, as well? Mr MacDonald: Yes. Mr Tracey: And you said to him - you said to Behnam "I want Gareth to be my witness." That's right, isn't it? Mr MacDonald: Yes. Mr Tracey: And you then raised your voice and said, "Didn't I tell you fucking not to negotiate with La Trobe University?" You said words to that effect? Mr MacDonald: No. Mr Tracey: You go with me - you were concerned that - that Behnam had been negotiating with that customer? Mr MacDonald: Can you ask the question again? Mr Tracey: You were concerned at that time - the 16th - I beg your pardon - 12 May - that Behnam had been negotiating with La Trobe University? Mr MacDonald: I had been concerned, yes. Mr Tracey: Yes. And the way you expressed that concern was to raise your voice and say, "Didn't I tell you fucking not to negotiate with La Trobe University?" Mr MacDonald: No. Mr Tracey: And you said "You never told me not to go" - I beg your pardon - Behnam said, "You never told me not to go and negotiate with La Trobe. I have not agreed or given any discount." That's what he said, isn't it? Mr MacDonald: That's what he said? Mr Tracey: Yes? Mr MacDonald: That's what he said. Mr Tracey: He said. And he said - this is also what he said. He said, "I actually approached you and I said Peter Nikoletatos wants to talk with us at 2 o'clock and you just told me to 'screw you' and you left." That's what he said to you? Mr MacDonald: No. Mr Tracey: And that's because earlier in the meeting you had said the words to him, "Screw you, Behnam."? Mr MacDonald: No. Mr Tracey: And Behnam said to you, "It's because of you" - it's - Mr Pye is there as well. He said, "It's because of you - by going and seeing them" - that's La Trobe - "on 6 May" - the week before. "That's why we are in this position." That's what Behnam said? Mr MacDonald: That's what Behnam said. Mr Tracey: Yes. And then you said, "Fuck you, Behnam. You don't get it. You don't understand." Is that correct? Mr MacDonald: No. Mr Tracey: And then you started reading Behnam's email to you which referred to Peter Nikoletatos wanting $7 million and bringing it down to $1 million? Mr MacDonald: Yes. Mr Tracey: So you had the email there with you in the meeting? Mr MacDonald: Yes. Mr Tracey: And you said "this" - you said "That's negotiation." Is that right? Mr MacDonald: Yes. Mr Tracey: And he - Behnam said, "It's not. I've said it very clearly. I don't have authority to - to get discounts, etcetera. And you never told me to - not to negotiate." Is that right? Is that what Behnam said? Mr MacDonald: No. Mr Tracey: And you said, "Why did you send that email to Adrian?"? Mr MacDonald: No. Mr Tracey: And then Behnam's evidence is that he said to you, "This is the biggest deal that we've ever done" - the company has ever done - "for $23 million and Adrian wanted to be across it. Adrian has said to me during the last few weeks that he wants the deal closed. So Adrian needs to be across it." Behnam said that to you, didn't he? Mr MacDonald: Can you ask the question again? Mr Tracey: Yes. These are Behnam's words to you? Mr MacDonald: Yes. Mr Tracey: To this … ? In his … effect? … affidavit? [Possible transcription error]. Mr MacDonald: Sorry? Mr Tracey: In his affidavit? In his evidence to the court? Mr MacDonald: Yes. Mr Tracey: He says, "This is the biggest deal that we've ever done - $23 million. And Adrian wanted to be across it. Adrian has said to me during the last few weeks and including, at that time, 'I want the deal closed'. So Adrian needs to be across it." So I'm suggesting to you that's what Behnam said? Mr MacDonald: Yes. Yes. Mr Tracey: He did. And then in response you said, "You don't get it. Fuck you Behnam. You don't get it. You don't get it."? Mr MacDonald: No. Mr Tracey: And then he said to you, "Perhaps it's because English is not my first language. Perhaps I didn't put it correctly in my email that way." Did he say that? Mr MacDonald: No. Mr Tracey: And he said, "You cannot scream, swear at me."? Mr MacDonald: No. Mr Tracey: And you said, "I can."? Mr MacDonald: No. Mr Tracey: And you said, "I can fucking do whatever I like. I can fucking do whatever I like to you - to you. And you can't do any fucking thing about it."? Mr MacDonald: No. Mr Tracey: That's what you said. And Mr Pye then said, "You can't say that and do that." - in reference to you? Mr MacDonald: No. Mr Tracey: You kept saying to him, "You've given a million dollar discount. Can't you see that? It's in your email? Can't you see that?" They were your words? Mr MacDonald: Yes. Mr Tracey: And Behnam said, "No. I have not."? Mr MacDonald: Yes. Mr Tracey: And he said, "Can we ask Paul James to come and speak to you and Mr Pye?"? Mr MacDonald: I don't recall that. Mr Tracey: Well, the reason he asked that was because Paul James had been Behnam's witness to his discussion with Mr Nikoletatos. Does that ring a bell? Mr MacDonald: It's not relevant to the issue but no, it doesn't. Mr Tracey: You - he says that in response to him asking for Paul James to come to the meeting you said "no, no, no". And you, again, said, "Fuck you, Behnam."? Mr MacDonald: No. Mr Tracey: He said to you, "No-one ever, including my parents, have spoken to me in that sort of language and if you don't have any respect for me at least have some respect on my white hair." That's what he said, isn't it? Mr MacDonald: No. Mr Tracey: He said: Don't you ever talk to me with that sort of language again. And then he walked out? Mr MacDonald: No. 348 Mr MacDonald denied that the prospect of licence fees declining in Victoria was a contrived reason for Mr Roohizadegan's dismissal. However, taken to an email Ms Gibbons had sent him he gave the following evidence: Mr Tracey: She says: Hi Stuart, as discussed, please find attached the breakdown of profit, including licence fees, consulting, etcetera, for each region. … ? Mr MacDonald: Yes. Mr Tracey: And then attached to that you see various spreadsheets, including the one on page 5562 of the court book? Mr MacDonald: Yes. Mr Tracey: Which deals with Victoria and, in particular, Benham? Mr MacDonald: Yes. … Mr Tracey: Yes. So for that financial year the forecasts was that Behnam would receive - his region would receive about 13 and a half million in licence fees? Mr MacDonald Forecast, yes. Mr Tracey: Yes. That's what I put to you, the - that's what the forecast was. And then the forecast for the following financial year was about 15.5 million? Mr MacDonald: Forecast, yes. Mr Tracey: Yes. And the forecast, as I'm putting to you, was for 17, nearly 18 million, for financial year '18 …? Mr Macdonald: Forecast Mr Tracey: … in licence fees? Mr MacDonald: Yes. Mr Tracey: Yes. So the forecast was that licence fees would grow over the next few financial years. That's correct, isn't it? Mr MacDonald: That was the intent. Mr Tracey: Well, that's the forecast, as you keep repeating, isn't it? Mr MacDonald: That was the intent. Yes. His Honour: Well …? Mr MacDonald: Yes … sorry …? Yes. [Possible transcription error] His Honour: This is an email which provides to you, as I apprehend it and it has been put to you, as a breakdown of profit licence fees and consulting for each region. Those are TechnologyOne figures? Mr MacDonald: That was the - that was the budget. His Honour: It is the company's forecast? Mr MacDonald: Correct. His Honour: It is being put to you on that basis? Mr MacDonald: Yes. His Honour: And so the company's forecast that you had after receiving this document was that Mr Roohizadegan would earn in Victoria increased licence fees in the three financial years? Mr MacDonald: If achieved, yes. Yes, sir. Mr Tracey: And you had that - you had seen that email and that forecast - those forecasts on or about 21 April 2016 when you received that email? Yes. Mr Tracey: And so that was your understanding of the forecasts when you went into the meeting on 26 April; is that correct? Mr MacDonald: Which meeting are you referring to, sorry? Mr Tracey: The meeting with the executive team at which Behnam's termination was discussed, so you say? Mr MacDonald: Yes. Mr Tracey: So it simply wasn't accurate to base a decision to terminate Behnam on lack of growth in licence fees, was it? Mr MacDonald: So there was two negatives. Can you rephrase it, please? Mr Tracey: … It wasn't accurate …? It wasn't accurate? It … [possible transcription error] as you suggested, to justify Behnam's termination by the failure of licence fees to grow? Mr MacDonald: It - it wasn't accurate? It was accurate. Mr Tracey: Well, the forecast shows licence fees going up and up, doesn't it? Mr MacDonald: That's a forecast intent. Mr Tracey: Yes. Well, it's a forecast based on company data that suggests what the forecast for licence fees will be? Mr MacDonald: No. It's a budget intent. That's what we needed it to do. It doesn't mean that's what it would do. The data behind it wasn't there to support it. That's what we needed it to get to. Mr Tracey: Mr Di Marco's evidence was that TechnologyOne's forecasts are very accurate. Do you agree with that? Mr MacDonald: At a macro level, yes. His Honour: And constantly adjusted? Mr MacDonald: Sorry, sir? His Honour: And constantly adjusted was …? Mr MacDonald: Yes. His Honour: … Mr Di Marco's …? Mr MacDonald: Yes. Mr Tracey: So the - do you agree with me, Mr MacDonald, that there was no adjustment to those forecasts between 21 April and 26 April? Mr MacDonald: Yes. Mr Tracey: And there was no adjustments to those forecasts between 21 April and 18 May 2016? Mr MacDonald: I would say there was. Of the - of the state managers, which was on the 12th-ish of May, we would have adjusted the forecasts, I suspect. Mr Tracey: Do you know what the figures were? Mr MacDonald: I do not. Mr Tracey: Do you agree with me that there's a very large deal that's about to occur for La Trobe? Mr MacDonald: Yes. Mr Tracey: That's at this point? Mr MacDonald: Yes. Mr Tracey: And that would have assisted in achieving the forecast for financial year 2016 had it been closed in that year? Mr MacDonald: Assisted, yes. Mr Tracey: Yes. And you agree that the La Trobe deal was almost closed in - as at that time, April 2016? Mr MacDonald: Yes. 349 It was put to Mr MacDonald that his evidence that Mr Di Marco had been the sole decision maker in respect of Mr Roohizadegan's termination contradicted the evidence he had given in his affidavit, which provided as follows: Following an email from Rebecca Gibbons, the HR business partner, about the complaints made by the Victorian team about Behnam, the executive management team, being Adrian, Edward Chung, Kathy Carr, Martin Harwood and me, met in the Brisbane office on Monday, 26 April 2016 and decided that Behnam would be transitioned out of the Victorian state manager's role imminently. (Emphasis added). 350 He denied that his evidence that Mr Di Marco alone had made that decision was a recent invention. In re-examination he said of his affidavit, "I didn't realise I needed to be that specific. Each of the executives gave their position, but Adrian makes the final call. Adrian is the decision-maker" (T995, lines 17-19).

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Consideration 353 Mr MacDonald commenced his employment with TechnologyOne at a fraught time. Given that he continues to be employed in a very senior role and has been promoted by that company, I would not discount that in other circumstances he may well be a more competent and honourable person than is reflected in my total rejection of his credit in these proceedings. Whatever might be the case in those regards however, I accept Mr Tracey's submission that Mr MacDonald was not a credible or reliable witness and that where his evidence conflicts with that of the Applicant, the Applicant's evidence should be preferred. 354 I do not accept Mr MacDonald's evidence as to what he did and when he did it. 355 In his affidavit, Mr MacDonald states that soon after he commenced employment with TechnologyOne he asked Mr Roohizadegan to explain why the Victorian market had not grown. He criticises Mr Roohizadegan for attributing the issue to others and not taking personal responsibility. The following sentence appears immediately afterwards (Ex R56, CB436 [9]): I observed from my interactions with Benham that he was overly controlling of the Victorian sales team. 356 Although avoiding dates - which might provoke scepticism - the inference invited thereby is that Mr MacDonald had travelled to Melbourne soon after he commenced his employment. Otherwise, he could not have "observed" those interactions. 357 What was left to inference in Mr MacDonald's affidavit was explicitly asserted by Mr MacDonald in his oral evidence, after Dr Spry had asked him about his reaction to the email Ms Gibbons had sent to him regarding staff concerns. That email was sent on 25 April 2016 (Ex R58, CB5595). 358 Mr MacDonald's response to Dr Spry was that his reaction had been that the email was in line with his expectations. He gave evidence that he had spent some time in the Victorian region. He had met with all the sales people prior to his having received Ms Gibbons' email. He had spent some time with Mr Roohizadegan and had seen the way that he related to issues. His own observations therefore "validated" what Ms Gibbons had reported. 359 In cross-examination, Mr MacDonald continued to maintain that he had visited Melbourne and observed those things prior to his learning of the contents of Ms Gibbon's email. He gave evidence that he "would have assumed it [his visit] was within the first 10 days [of his employment at TechnologyOne]. In that space. It was prior to the 26th". 360 He denied it was possible that he had met Mr Roohizadegan for the first time on 27 April 2016. 361 It was only after Mr Tracey methodically cut off all of his possible escape options in cross-examination that Mr MacDonald finally conceded that he had neither visited Victoria nor met Mr Roohizadegan or any members of his sales team until after the meeting of the Executive Team on 26 April 2016 had taken place. His first visit had thus occurred not before but after the time when, on his evidence, Mr Di Marco had made a decision to dismiss Mr Roohizadegan which he had taken responsibility for implementing. He had then been accompanied by Mr Harwood. Whatever the ultimate end point of the period of transition between Mr MacDonald and Mr Harwood's employment (which need not be conclusively determined), I am satisfied that at that time they were still in their overlap period. 362 In those circumstances, I reject Dr Spry's submission that I should conclude Mr MacDonald was a credible witness because he made concessions about mistakes in his memory regarding when he first met the Applicant "which shows that he wanted his evidence to be accurate". 363 In my view, the position is entirely to the contrary: Mr MacDonald continued to insist on the truth of propositions contrary to facts as he must have known them to be until no other option remained save to make a graceless concession. 364 That evidence was not in respect of a peripheral matter. The circumstance ultimately exposed was entirely inconsistent with Mr MacDonald having based his conclusion that Mr Roohizadegan should be dismissed from his employment with TechnologyOne (reached, on his evidence, prior to 26 April 2016) on his personal assessment of the circumstances in the Victorian region. 365 A further difficulty with Mr MacDonald's evidence concerns his denial in cross-examination that he swore at Mr Roohizadegan and Mr Ivancic during their videoconference on 9 May 2016. Mr Tracey put to him that his response to that question had accepted that he had done so on other occasions. Mr MacDonald also denied that proposition (T980, lines 20-25). 366 However, after further resisting that any counselling he had been given by Mr Di Marco in respect of the 9 May conversation had gone beyond Mr Di Marco urging him not to "telegraph our punches" (T982, lines 40-41) and "to slow down" (T982, line 46) Mr MacDonald ultimately conceded "I did swear once which is in my affidavit and the counselling was related to that event" (T983, lines 34-35). His belated concession was inevitable. Paragraph [68] of his affidavit was as follows: On 9 May 2016 I had a discussion with Benham and Boris about their sales forecast and I was getting frustrated that they hadn't done what they were supposed to do. I said in frustration to them, "can you guys get your fucking act together?" … 367 Dr Spry submits that Mr MacDonald's admission to having a heated conversation with the Applicant and his admission that he was counselled about this is to his credit. I reject that submission. The concession was obtained only after all other possibilities were foreclosed. 368 If Dr Spry's submission that Mr MacDonald admitted that he had had a heated conversation with the Applicant and had been counselled in that respect is to be understood as extending to the events of 12 May 2016, I also reject that submission. There is no reference to counselling in the relevant part of the transcript beyond that which relates to the events of 9 May 2016 (T983, lines 30-45). 369 Dr Spry did not lead any evidence-in-chief from Mr MacDonald as to his account of what Mr MacDonald said or did during his confrontation with Mr Roohizadegan on 12 May 2016. Mr Tracey however, properly, put his client's instructions. There is nothing in that exchange (see above at [347]) that can be taken to be an acknowledgement by Mr MacDonald that their conversation was heated. He simply denied all of the specific instances of verbal abuse and swearing put to him. 370 Given that it is not in dispute that Mr Di Marco responded to Mr Roohizadegan's sixth pleaded instance of alleged bullying by advising him, inter-alia, that "such conduct is unacceptable" (Ex A30) and later informed him that Mr MacDonald had been counselled (Ex A24), I have no hesitation in concluding that Mr MacDonald's evidence in those regards cannot be accepted. 371 I also note that at paragraph [35] of his affidavit Mr MacDonald deposed that: … My decision to meet with the Melbourne University Representative without Benham had nothing to do with any complaint Behnam made or any threat by Benham to bring legal proceedings against TechnologyOne. I only became aware of these issues when preparing this affidavit in the course of these proceedings. 372 However, in cross-examination Mr MacDonald admitted that he had read Ms Gibbons' email to Ms Carr in which those issues were raised (T963, lines 7-18). He accepted that that was before the Executive Team had met. He nonetheless continued to deny that Mr Roohizadegan's bullying allegations had been raised at the relevant meeting of the Executive Team on 26 April 2016. However, he ultimately conceded it was possible that those allegations were discussed (T964, lines 43-46). He then sought to suggest that what he had said at paragraph [35] regarding Mr Roohizadegan having threatened to bring legal proceedings having nothing to do with his conduct was not an attempt to defend TechnologyOne against Mr Roohizadegan's claims (T966, line 27-T968, line 14). I did not find his tortured explanations in those regards to be plausible. 373 It is unfortunately necessary for the Court to record its finding that Mr MacDonald could not be accepted to be a witness of the truth. I am satisfied that Mr MacDonald was a highly unimpressive witness, and not one whose evidence I am entitled to accept in preference to that given by Mr Roohizadegan unless corroborated by contemporaneous documents or by other evidence which the Court accepts. More specifically, in respect of the disputed events of 12 May 2016 I am satisfied that I should prefer Mr Roohizadegan's evidence as supported by contemporaneous notes to that which Mr MacDonald gave. 374 In short summary I am satisfied that the evidence establishes that within the first two weeks of his employment Mr MacDonald enthusiastically lent himself to a strategy to dismiss a person he had never met, on the basis of circumstances about which he had no personal knowledge. 375 I am further satisfied that once he had lent himself to that project Mr MacDonald behaved in a boorish and abusive way towards Mr Roohizadegan on a number of occasions notwithstanding knowing the latter was under a threat of dismissal: without there being any plausible justification for his doing so.

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The other witnesses 376 Given that the Court's task in an adverse action proceeding is to make findings regarding the actual reasons of the decision maker (or decision makers), there are limits to the relevance of much of the other evidence in these proceedings. That is because if TechnologyOne and Mr Di Marco persuade the Court that the relevant decision maker or decision makers proceeded on an honest - if mistaken - view as to the matters Mr Di Marco contends to have been his reasons (and by adoption the reasons of TechnologyOne), that would be the end of the matter. The presumption provided for by s 361 of the Fair Work Act would have no work to do. 377 Thus it is not of great account in these proceedings whether any of the complaints Ms Gibbons detailed in her email to Ms Carr and Mr Di Marco were accurately conveyed, or to the extent they were accurately conveyed whether they themselves accurately identified the objective truth of the position in Victoria. Rather, what the Court is required to focus on is the actual mental processes of the relevant individual or individuals who made the decision to dismiss Mr Roohizadegan: Barclay at [140] (Heydon J); BHP Coal at [7] (French CJ and Kiefel J), [85] (Gageler J). 378 The same must be so with respect to Mr Di Marco's other asserted reasons for his decision: namely Mr Roohizadegan's alleged incapacity to get along with his three most recent managers, and his alleged failure to grow the business by increasing licence fees. What is ultimately determinative is not the objective truth of those propositions, but whether the decision maker or decision makers honestly believed them to be true: and proceeded to terminate Mr Roohizadegan for those reasons. 379 The Respondents carry the burden of proof. Let it be assumed however that the Court is satisfied that Mr Di Marco was the relevant decision maker as I have, for the reasons I give later, accepted. In those circumstances, if it concludes on the balance of probabilities that Mr Di Marco genuinely believed each of those circumstances was the true position and took the adverse action decision he did (dismissing Mr Roohizadegan) for those reasons without any of the complaints that Mr Roohizadegan made being a substantial or operative factor in that regard, the Respondents must succeed in that aspect of these proceedings. 380 By way of illustration, Mr Di Marco gave evidence that his reasons for deciding to terminate Mr Roohizadegan included that TechnologyOne's licence fees in Victoria were at risk of going down in the 2016 financial year. In cross-examination, he conceded that that was because "I was told there was, so - and I will have to look it up" (T585, line 6). He later accepted that "in the end it was based on what I was told" (T585, lines 16-18). To make such a consequential decision on such a frail basis might seem unfair. If however the Court accepts that Mr Di Marco proceeded honestly on that premise, Mr Roohizadegan cannot succeed by adducing evidence that objectively establishes that that premise was factually unsound. 381 Likewise, if the Court accepts Mr Di Marco's evidence regarding his belief in the truth of the complaints Ms Gibbons put before him that is the end of things in that regard: notwithstanding he may have resisted an investigation of those complaints as would have allowed him to make a finding not wholly dependent on hearsay. 382 Of course, that does not mean that what a decision maker asserts as his or her reasons must be accepted. The Court is required to make findings as to the decision maker's actual reasons. What those reasons are is to be determined from all of the facts established in the proceeding and inferences properly drawn from them. If the inferences to be drawn from those facts are that Mr Di Marco knew that the actual position was to the contrary, or that he had no sound basis to believe what he had been told, then what he claims to have been his actual reasons must be evaluated in that light. 383 That path of analysis however entitles me to confine my subsequent reasoning as to the evidence given by the other witnesses in this proceeding to the extent that the evidence they gave may, contextually, throw light on Mr Di Marco's actual reason or reasons for dismissing Mr Roohizadegan.

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Mr Ivancic 390 Mr Ivancic's evidence (Ex A5, CB222-236) is that between February 2016 and 23 January 2017 he was employed by TechnologyOne, initially as Regional Sales Manager before being appointed in a caretaker role as Regional Manager for Victoria after Mr Roohizadegan had been dismissed. His evidence was that he is currently employed by Quest Software as Vice President and General Manager Asia Pacific and Japan. 391 He initially had been interviewed for a more senior position within TechnologyOne which he had not obtained. On 11 November 2015, he had received a call from Mr Harwood in which the latter advised as follows: 10. Graham then organised for me to have a telephone call with Martin Harwood on 11 November 2015. In this call Martin asked me if I would be interested in the Sales Manager role in Victoria. I also recall that Martin specifically mentioned Benham, and said words to the effect: " we're looking for other things for Benham in the company, because he's been there quite a while and we need to utilise his skills in a different way. We're [TechnologyOne] looking for other things for Benham to do, maybe nationally, we don't know right now" and "you should prepare to come on board in this lower role of Sales Manager, but eventually there could be the opportunity to take on another role in Victoria." 392 He had reluctantly accepted that less senior position as a stepping stone into the area of enterprise applications - in which TechnologyOne works - after being offered six months' guaranteed commission (for which he had not asked) and following an interview with Mr Roohizadegan that had gone well. 393 In cross-examination Mr Ivancic was unshaken in his evidence that Mr MacDonald had repeatedly sworn during his conversation of 9 May 2016 with him and Mr Roohizadegan. That was the conversation in which they advised Mr MacDonald of Victoria's updated sales projections. He had been shocked. He had not been spoken to like that in his 35 years of experience. His evidence was that in any of the other companies for which he had worked, "if any manager had used language like that they would have been terminated immediately, especially to a subordinate, let alone a peer" (T105, lines 5-9). 394 Mr Ivancic also gave extensive evidence both in chief and in cross-examination of his opinion of Mr Roohizadegan's style of management. The evidence he gave was broadly to the effect that he had considered Mr Roohizadegan to have been a proud traditional manager, excellent with customers, but that in his opinion Mr Roohizadegan had been too much of a micro-manager in respect of his sales team. Thus in cross-examination he accepted that some of Mr Roohizadegan's conduct may have been viewed by his staff as demeaning and belittling (T135, lines 7-20): Dr Spry: Now, you did observe Mr Roohizadegan saying to his sales staff that wherever they go - whenever they go to a meeting they must make sure they've got enough money for a coffee? Mr Ivancic: Correct. Dr Spry: They should take a pen and paper with them; correct? Mr Ivancic: Correct. Dr Spry: Now, these are adults he is speaking to …? Mr Ivancic: Correct. Dr Spry: … who've been employed by TechOne for some time; correct? Mr Ivancic: Correct. Yes. Dr Spry: Now, I would suggest to you that that would be demeaning behaviour of one's team, to talk to them in such a manner; correct? Mr Ivancic: Correct. It could be. Yes. Dr Spry: It's belittling; correct? Mr Ivancic: Correct. 395 That seemingly adverse testimony was put in some context by his subsequent response (T135, lines 36-40: Dr Spry: You felt his behaviour to be patronising; correct? That is, in telling his sales representatives that they should take notepads and pens on sales calls? Mr Ivancic: Yes. That's correct, and unfortunately I had to display the same patronising behaviour later on after Behnam left because people were going to sales calls ill-prepared, so I guess I was just as patronising later on. 396 It is unnecessary to set out Mr Ivancic's evidence as to Mr Roohizadegan's management style in full. For the reasons I have given, except insofar as his views (or purported views) were communicated to Mr Di Marco by way of Ms Gibbons' email I do not regard such evidence as relevant to the matters I am called on to decide. For the same reason, I need not resolve the conflict between what Mr Ivancic states he said or did not say about Mr Roohizadegan's staff micro-management in a (disputed) unsigned draft statement prepared by TechnologyOne's solicitor after an interview in the Brisbane office about a month after Mr Roohizadegan had left and before he left its employ (T56, lines 5-32; T61, line 39-T62, line 12). 397 There is nothing in any of the evidence, documentary or otherwise, before me to suggest that - beyond what Ms Gibbons reported - Mr Ivancic's views regarding Mr Roohizadegan's management style were ever communicated to or came to the knowledge of Mr Di Marco. Similarly, whatever Mr Ivancic later said or did not say to Mr Chung (a subject of extensive cross-examination) happened only after he had been told that Mr Roohizadegan was being terminated and that he was to be offered that vacant position in a caretaker capacity. Whatever he may have thought or said at that point of time can have no bearing on what were the decision maker's actual reasons for that decision. I will however address later whether I should, as Dr Spry submits I ought, conclude that the inconsistencies alleged reflect adversely on Mr Ivancic's credit. 398 To enable the reader to follow the evidence which Mr Ivancic gave in cross-examination regarding Ms Gibbons' email, I note that that email contains the following report of her discussions with Mr Ivancic: I spoke to Boris and asked him how he was settling into the role and he confirmed everything I had been told. He felt he was not allowed to operate as a capable manager, he did feel regularly undermined and he felt that the team operated in a controlled culture of fear. I asked him what this meant for him and his future with Tech One, he also felt that the company accepted this behaviour so he was unsure. My perception is that he is a very real flight risk if nothing is resolved in the office. A point to note is that the team all spoke very highly of Boris as a leader and from a sales engagement perspective, they just felt he was not allowed to operate at his potential. 399 Mr Ivancic's evidence as to what had transpired was entirely different (T130, line 16-T132, line 22): Dr Spry: Now, you spoke to Ms Rebecca Gibbons from human resources. She came down to visit the Melbourne office in April of 2016? Mr Ivancic: Yes. Dr Spry: And she told you that she had spoken to the sales team. Correct? Mr Ivancic: Correct. Dr Spry: She gave you an overview of what the team members were saying. Correct? Mr Ivancic: Not correct. Dr Spry: And when she finished speaking, you said, "That's how it is". Correct? Mr Ivancic: Not correct. Dr spry: There was no conversation to the effect of, "The mood in the office is really flat", by you? "The mood in the office is really flat and people feel under a lot of pressure. I see a lot of divisiveness that I can't work out where it's coming from". And then Ms Gibbons did not say, "Well, what about Behnam? Is he the cause of all this". His Honour: Sorry. That question's too long and impossible to answer. Dr Spry: Yes. There was no conversation to the effect of - when you spoke with Ms Gibbons you did not say to her, "Look, the mood in the office is really flat and people feel under pressure. I see a lot of divisiveness that I can't work out where it's coming from". You didn't say that, did you? Mr Ivancic: That sounds vaguely familiar as something I said, yes. Dr Spry: Okay. And she did not say to you, "What about Behnam? He's the cause of this". She didn't say that to you, did she? Mr Ivancic: She intimated that is - well, she pretty much said, "Is it Behnam?" Dr Spry: Well, pretty much. She didn't say it, did she? Mr Ivancic: I can't remember the exact words, but it was pretty clear that she was sheeting blame on Behnam for the office mood. Dr Spry: And you did not say to her, "Rebecca, if you feel you've got a problem with Behnam and his management style, don't come to me to try and fix it". You didn't say that, did you? Mr Ivancic: I did. I was getting very frustrated by that point in time in the discussions. Dr Spry: And you did not say, "I've only been here for a couple of months, and if you say that it's as bad as it is, as it has been for a long time, why haven't you done anything about it". You didn't say that, did you? Mr Ivancic: I did. His Honour: Sorry. You did? Mr Ivancic: I did. His Honour: Thank you. Dr Spry And you did not say to Ms Gibbons, "I don't really want to get engaged in leading conversations about Behnam". You didn't say that, did you? Mr Ivancic: Sorry. I did. Dr Spry: And you did not say, "I can tell you that the mood is flat for a lot of reasons in the office". You didn't say that? Mr Ivancic: I did. Dr Spry: When you told Ms Gibbons that Mr Roohizadegan constantly calls you into his office, and then you had this occasion where you say the frequency of the calls into the office - and what you say, the next time, you would expect a treat - that's what you say happened? Mr Ivancic: Yes. Dr Spry: I suggest to you that you said you would expect a dog chew? Mr Ivancic: No. Dr Spry: That you would expect a treat. And when you said that to Ms Gibbons, assuming that you - using your words, that you would expect a treat, that was one of the examples that you gave of how Mr Roohizadegan belittled his staff; correct? Mr Ivancic: No, that's not correct. Dr Spry: He was treating you like a child; correct? Mr Ivancic: No. That's not correct. Dr Spry: And you didn't say those words in jest [spelling corrected from transcript], did you? Mr Ivancic: I did. Dr Spry: Because you wouldn't repeat that. If that was something said in gest on a particular day, you would hardly go and tell Ms Gibbons, "I said that in jest [spelling corrected from transcript]", would you? Mr Ivancic: It was in a broader conversation, talking about how I find working with Behnam. Dr Spry: That broader conversation of how you find working with Behnam, and by that, you mean that he expected you to be at his beck and call; correct? Mr Ivancic: No. No. It was a description of how fast-paced the office is, how on top of the business, that he's constantly talking about deals, wanting me to come in and talk about deals' progress, strategy - pretty fast-paced, and it was unique. I hadn't worked in that environment before. So it was worth calling out. Dr Spry: It was worth calling out? Mr Ivancic: Yes. Dr Spry: I suggest to you that you had simply made that up? Mr Ivancic: That's not correct. Dr Spry: Well, I suggest to you that the reason that you're making this evidence up is because you feel disgruntled at not getting the appointment of the regional state manager's job; correct? Mr Ivancic: That's not correct at all. Dr Spry: But it's not laughable, though, is it? Mr Ivancic: It is laughable. The role I have now, which is a role that I started negotiating for about the middle of - well, yes, September last year is managing the business. It's bigger than TechnologyOne. Why would I be disgruntled about … Dr Spry: And you only started, as I understand it, looking for that role once someone else had been appointed to the regional state manager's role. As I recall your evidence, this other person was appointed around September, and that's when you started looking for a different job? Mr Ivancic: Yes. And that was when I was still on a promise from Stuart for a bigger role in TechnologyOne. And at that point, I made my decision: I don't want to work for Stuart. Dr Spry: Could I suggest to you that Stuart said that you weren't ready to step into the shoes of the regional state manager's job? Mr Ivancic: They are not the words he used to me. 400 Mr Ivancic also gave evidence to the effect that he would not have confirmed certain of the things Ms Gibbons asserted in the email that he had told her. Ms Gibbons had reported that Shane (Cagney) was in tears as he had been regularly threatened with his job. She reported that she had spoken to Mr Ivancic who had confirmed that he "was really feeling the pressure and would not be surprised if he went on stress leave". The inference conveyed was that that was a result of Mr Roohizadegan's conduct. 401 However, Mr Ivancic's evidence (which I do not understand was ultimately disputed) was that Mr Cagney was struggling in his role and was "probably the poorest performing sales representative in the office". Mr Ivancic himself had put him on a performance improvement plan, which was a formal process to monitor his activities work and output (T111, lines 7-17). 402 Mr Ivancic gave the following evidence in cross-examination as to what he conveyed to Ms Gibbons regarding the morale at TechnologyOne (T130, line 37-T131, line 4): Dr Spry: There was no conversation to the effect of - when you spoke with Ms Gibbons you did not say to her, "Look, the mood in the office is really flat and people feel under pressure. I see a lot of divisiveness that I can't work out where it's coming from". You didn't say that, did you? Mr Ivancic: That sounds vaguely familiar as something I said, yes. Dr Spry: Okay. And she did not say to you, "What about Behnam? He's the cause of this". She didn't say that to you, did she? Mr Ivancic: She intimated that is - well, she pretty much said, "Is it Behnam?" Dr Spry: Well, pretty much. She didn't say it, did she? Mr Ivancic: I can't remember the exact words, but it was pretty clear that she was sheeting blame on Behnam for the office mood. Dr Spry: And you did not say to her, "Rebecca, if you feel you've got a problem with Behnam and his management style, don't come to me to try and fix it". You didn't say that, did you? Mr Ivancic: I did. I was getting very frustrated by that point in time in the discussions. 403 He then gave the following evidence in re-examination (T139, lines 4-13): Mr Tracey: That's okay. It was also put to you by Dr Spry that your view on 17 May was still that the problems in the Victorian office were attributable to Behnam. As I recall, your answer to that question was, "That's not correct." Is that right? Mr Ivancic: That's right, yes. Mr Tracey: Are you able to say to the court what you say the problems were attributable to? Mr Ivancic: The problems were centred around aggressive sales targets, poor product quality, the pressure to deliver projects in timeframes that weren't realistic, the inability to deliver new products when they were promised to the customer. So there were - and a lot of disgruntled customers complaining to us. 404 On Mr Roohizadegan's behalf, Mr Tracey submits that: 7.3. Mr Ivancic was a credible witness who made concessions against both his own and Mr Roohizadegan's interests. For example, Mr Ivancic admitted that he observed Mr Roohizadegan to have had a style of management that he would describe as "micromanagement", but that he ultimately found this style of management to be warranted (T96.32-42). 7.4. The Court should not accept the Respondents' attempts to undermine Mr Ivancic's credibility for the following reasons: (a) The affidavit from Leo Whiteley does no more than establish that a version of a draft witness statement, prepared by an unknown person, was sent by Mr Whitely to Mr Ivancic who then made comments and changes, but Mr Ivancic takes issue that that is the final statement he viewed or amended; (b) The Respondents asserted that Mr Ivancic was a disgruntled employee and was not being truthful in his evidence because he was not appointed to the role of Regional State Manager (T132.5-7). The Court should not accept this baseless assertion, as it is the case that Mr Ivancic is now employed by an organisation that is larger than that of the First Respondent (T132.9-12). (c) The Respondents asserted that Mr Ivancic was making up his evidence as he went along (T132.20). The Court should not accept this assertion in circumstances where Mr Ivancic was forthcoming and responsive to each question put to him. Mr Ivancic did not give evidence that was inconsistent with his witness statement (T139.32-36); T140.1-11). (d) Mr Ivancic presented as a confident witness who was cautious about ensuring he told the truth, which he plainly did. 405 On behalf of the Respondents, Dr Spry submits that: Mr Boris Ivancic is not a creditable or reliable witness and where his evidence differs from that of Mr Chung, Ms Gibbons or Mr MacDonald, their evidence should be preferred to that of Mr Ivancic. Mr Ivancic's refusal to accept that he returned an updated copy of his statement with amendments made by him tells strongly against his honesty and reliability as a witness (CB7548-7533; R67 [3],[4],[5]). Further, Mr Ivancic is clearly a disgruntled ex-employee of Technology One. 406 My general impression, insofar as it is open to rely upon demeanour, was that Mr Ivancic was both a seriously minded man with a strong record in management and a calm and persuasive witness of the truth. He remained unshaken after cross-examination. I accept Mr Tracey's submission that Mr Ivancic made concessions against both his own and Mr Roohizadegan's interests. That was as Mr Tracey submitted exemplified by Mr Ivancic conceding that Mr Roohizadegan had a style of management that he would describe as "micro-management", while acknowledging that ultimately he himself had found this style of management necessary to adopt. 407 A similar instance of Mr Ivancic being prepared to make an appropriate concession arose during cross-examination about a contemporaneous note made by Mr Chung of a conversation that they had had when he had been informed that he was to take over Mr Roohizadegan's position in a temporary capacity. Mr Ivancic frankly conceded that during that conversation: I took opportunity to blow my own trumpet; I won't deny that. I said, "I think that I can do a few things differently that might make the branch operate a little more harmoniously or resolve some of the issues we have with skills and the way we approach the market" (T108). 408 I acknowledge that in cross-examination Dr Spry put to Mr Ivancic that he had made prior inconsistent statements in a document that had been drafted after he had been interviewed by a solicitor, in the course of TechnologyOne's preparations to respond to the legal action which Mr Roohizadegan commenced against the company. Dr Spry put to Mr Ivancic that he had received that draft statement from the company, had made only minor changes to it and had emailed it back to the sender. The relevant emails were tendered as Ex R1 (CB7548-7553). I accept that if it is open to conclude that Mr Ivancic adopted that statement as the truth, it does contain some prior inconsistent statements. 409 In cross-examination however, Mr Ivancic stoutly maintained that the statement included within the emails tendered as Ex R1 was not his document. He maintained that he had made more "substantial" revisions to the draft statement, which he had sent back to the company in a final version that was altered more significantly. Mr Ivancic's evidence was that there had been significant errors in the document. He said: I wouldn't have put in incorrect names or let incorrect names go through a document. I wouldn't have referred to discussions with Amit [Sion] when I hadn't had them (T126). 410 Notwithstanding Mr Ivancic's robust riposte, contemporaneous documentary evidence clearly supports Dr Spry's contention that Mr Ivancic did send back the copy of the statement that had been prepared by TechnologyOne's solicitor with a cover note annotation "please find my updated copy attached". That document was then in the form that Dr Spry put to him: not one with more extensive revisions. I have no basis to reject Mr Whiteley's subsequent evidence that no further version was received by TechnologyOne. I am satisfied on the basis of the documentary record that Mr Ivancic therefore must have been either mistaken or untruthful when he asserted that he had returned a document that had been more extensively revised. 411 However, the document Mr Ivancic returned remained in draft. It was never signed. I find it to be implausible that Mr Ivancic would have ultimately sworn to the truth of a statement in that form had it continued to contain the disputed content to which he referred in his evidence. 412 I have earlier noted that an entirely honest witness may come to believe that relevant events must have been as they give their evidence, when in fact they were not. In my view, that is the explanation in this instance. Mr Ivancic knew he needed to make further revisions to his draft statement before adopting it and, with the passage of time, came to believe that he had already communicated the substantial revisions required. 413 In assessing the credit of Mr Ivancic, I decline to place any significant weight on what were asserted to be prior inconsistent statements in the draft he had returned with only limited changes then flagged. 414 Although Mr Ivancic's evidence in respect of the form of that documents cannot be accepted, I am satisfied that that was a consequence of false recall rather than deceit. More specifically, I am satisfied he neither thereby had adopted nor would he have deposed to the truth of that document in that form. 415 Dr Spry also contends that Mr Ivancic was a "disgruntled ex-employee of TechnologyOne", and as such was not a witness of credit. I do not find that suggestion persuasive in light of how cross-examination with respect to that issue unfolded. 416 Mr Ivancic temporarily filled the role of Regional State Manager left vacant by Mr Roohizadegan after his termination. He frankly admitted during cross-examination that he had an "expectation" that he would be permanently appointed to that role, and was disappointed when that circumstance did not eventuate. 417 However, when it was put directly to Mr Ivancic that he was being dishonest with the Court because felt "disgruntled at not getting the appointment of the Regional State Manager's job", he denied that and said: It is laughable. The role I have now, which is role that I started negotiating for about the middle of - well, yes, September last year [2018] is managing the business. It's bigger than TechnologyOne. Why would I be disgruntled about [that]? (T132) 418 Both Mr Ivancic's acceptance of his initial disappointment and his denial of dishonesty had the ring of truth. Both were consistent with his making frank and appropriate concessions whilst remaining unshaken in his account. I reject the Respondents' suggestion that I should proceed on the basis that Mr Ivancic gave false or unreliable evidence out of revenge for not having been permanently appointed as Regional State Manager. 419 In summary, I accept Mr Ivancic to have given truthful evidence, albeit clearly mistakenly so in one instance.

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Ms Hamson 420 Ms Hamson's evidence was given largely by affidavit (Ex A40, CB243-246). She had been initially interviewed for a position with TechnologyOne by Mr Ivancic (whom she had known from working with him previously), and had commenced employment with the company on 11 July 2016 in the position of Account Director. 421 Ms Hamson accepted that in her discussions with Mr MacDonald she had made her employment conditional upon Mr Ivancic being her manager. That was nothing to do with her opinion of Mr Roohizadegan, who she did not know. It was because she was interested in the job only by reason of her high regard for Mr Ivancic. Her evidence was that in commencing employment with TechnologyOne she had taken a pay cut of at least $20,000.00 because she had really wanted to seize the opportunity to work with Mr Ivancic again. 422 She resigned from TechnologyOne some eight months later. She now works for Quest Software as Enterprise Sales Director. 423 Ms Hamson denies having said anything adverse about Mr Roohizadegan, and in particular anything to the effect that Mr Roohizadegan was known to be exceedingly difficult to work with, to Mr MacDonald. Cross-examined, Ms Hamson was unshaken in that evidence. 424 Ms Hamson's evidence is to be understood as prophylactic against the prospect that Mr MacDonald - who later also interviewed her prior to her appointment - might be anticipated to give evidence that she had indicated to him that she would decline the position if she had to work with Mr Roohizadegan, and that she had told Mr MacDonald that Mr Roohizadegan was known in the Victorian market as being exceedingly difficult to work with. 425 I am satisfied that Ms Hamson was a credible witness. I infer that Quest Software, the company for which she now works, is the company where Mr Ivancic is now employed as Vice President and General Manager Asia Pacific and Japan. I infer that Ms Hamson followed Mr Ivancic to that company. I accept that the only reason Mr Hamson told Mr MacDonald she would not be willing to take the position that had been offered to her if Mr Roohizadegan was going to be her manager was that her sole interest in the role, and the reason why she was prepared to make a financial sacrifice of some significance to accept it, was that the position would enable her to work professionally with Mr Ivancic again.

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Mr Price 426 Mr Price gave evidence-in-chief by affidavit Ex (A41, CB280-286). His evidence was that he had been employed by the Catholic Education Office as its IT Vendor Manager from May/June 2013 to May/June 2016. Over a period of some three months starting from August 2016, he had negotiated a contract with Mr Roohizadegan. He had found Mr Roohizadegan to have been a tough negotiator but fair and credible. He recalled Mr Roohizadegan having stated on more than one occasion words to the effect that: we're [TechnologyOne] not looking for a transactional relationship, we're looking for a long-term strategic partnership. Where we find that mutual ground cannot be accommodated, we would rather walk away than to be in a bad relationship. 427 Mr Roohizadegan thereafter was central to holding the deal they had achieved together. Mr Price's evidence was that over the three years he had dealt with TechnologyOne before Mr Chung was appointed, the company had gone through at least four project managers who had reported to Brisbane rather than Mr Roohizadegan. They all had made service commitments that were never delivered. 428 His evidence was that whenever such issues arose, "Benham was the glue that continued to call everyone back to the table and say words to the effect, 'no, no, no, This is what we agreed, and this is how we should be approaching it'". 429 Mr Price was cross-examined only as to one passage in his affidavit: in respect of an instance he recalled that had occurred in 2013 when Mr Jane, the Catholic Education Office's Principal Consultant, had questioned Mr Roohizadegan's and TechnologyOne's integrity in respect of outstanding items on a deal regarding TechnologyOne's Limited Solutions Agreement. Mr Roohizadegan had been deeply offended at what was said. 430 Mr Price gave evidence that Mr Jane had later accepted that he should apologise. Mr Price's evidence was that he recalled thinking that Mr Roohizadegan's reaction in terminating the meeting had been entirely justified. That was the only time there had been a heated discussion. 431 Cross examination was effectively limited to Dr Spry putting to Mr Price certain things Mr Jane may have said at that time. Mr Price accepted that Mr Jane had asked Mr Roohizadegan "Are you playing games with me?". Dr Spry also put to Mr Price that Mr Jane had said "Fuck Benham. Just to be clear, I don't agree" during that heated moment. Mr Price's response was that the word "fuck" was not used by Mr Jane. 432 Mr Price's cross-examination occasions no reason to doubt his credit. I accept Mr Price to have been a witness of the truth.

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Mr Luczek 433 Mr Luczek gave evidence-in-chief by affidavit, having made one immaterial amendment (Ex A42, CB208-210). His evidence is that he was employed by the Mitchell Shire Council between November 2010 and August 2014. He was promoted to Manager of Information Services in January 2012. The council was already a client of TechnologyOne. It engaged that company to provide: (a) Payroll & Human Resources Module; (b) CI Property & Rating Module; (c) Finance Module; and (d) Customer Service Module. 434 He relevantly gave the following evidence: Dealings with Behnam Roohizadegan 8. In or around late 2011 or early 2012, about the time I was promoted to Manager of Information Services, Council had an issue with one of the Technology One Modules, and the Account Manager at TechnologyOne, Mr Phillip Pantano (Phillip), Account Manager, was not responsive dealing [sic] with the issue that I had raised, that is, he was slow. 9. As there was no progress with the Account Manager, I decided to contact the next level up (in terms of seniority). That person was Mr Benham Roohizadegan (Benham). 10. Behnam and I developed a relationship where each time I needed to email TechnologyOne about an issue with our systems, I would always copy in Benham. 11. Behnam was fantastic in that each time I raised an issue, he was very responsive, and was on the phone straight away. That is, he would call me back within a day. I really admired that about Benham, particularly given he was a busy man, and at a very senior level. 12. I recall occasions where I would email the Account Manager, copying Benham, about an issue Council was having, and would receive a call from Benham's executive assistant, informing me that Behnam was in a meeting, but that he had received my email and would call me back as soon as possible. 13. When Benham was able to return my email about an issue I had raised, he would call and say to me words to the effect of, "okay, I was unaware of that, I will address it and I'll get to it." I would then usually hear from the Account Manager shortly after, and the issue was resolved. … 17. When negotiating costs and prices, Benham was always available and always tried to help. Behnam would regularly say to me words to the effect, "this is a partnership. We want to work together." This gave me the impression that Benham was different, in so [sic] that he really wanted to help Council. 18. Council's budgets are extremely tight, with little movement, therefore I needed to spend the funds wisely to get the best value and service. Behnam understood this. In contrast, I had to deal with a lot of other systems providers, who did not understand this. 19. Although I do not recall the exact date, I recall negotiating with TechnologyOne about costings for extra licences, or something similar. Behnam and Philip both visited Council's office to discuss. 20. During this negotiation, I found Behnam to be polite, sincere, genuine and respectful. This goes for all my communications with Benham, both via email and face to face. 21. I recall an occasion where Benham invited me to a TechnologyOne User Group meeting at their Melbourne office, where he also provided lunch. Again, Behnam was very polite, sincere, genuine and respectful. 22. I have never heard or observed Benham to be rude, disrespectful or abrupt in any way. 435 Mr Luczek was cross-examined by Dr Spry, but there is nothing in that exchange that is material to note. His cross-examination concerned whether Mr Luczek had alerted Mr Roohizadegan to complaints the council had had about their payroll system. His evidence in cross-examination was to the effect that because Mr Roohizadegan had not been involved in that product, he had not done so. Dr Spry did not put to Mr Luczek any questions to suggest that any part of his substantive evidence was untruthful or mistaken. 436 I am satisfied Mr Luczek was a witness of the truth and I accept his evidence

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Mr Dalton 437 Mr Dalton gave evidence by way of an affidavit containing agreed redactions (Ex A43, CB 238-240). His evidence was that he had recently retired from his former long term employment with the Casey City Council. When he had joined Casey he had realised that it needed a major update to its IT systems. He had first engaged with TechnologyOne in 2006. He had met Mr Roohizadegan in 2007. He had had dealings with Mr Roohizadegan throughout the bidding phase, contract negotiations and implementation support for the five services (property and rating, electronic content management, finance, capital works and customer service) that TechnologyOne came to provide for Casey. His evidence was that Mr Roohizadegan was always seeking a mutually beneficial outcome: 6. Having worked with Benham throughout the procurement cycle of the five products as listed above, I found Behnam to be a very sincere person, who genuinely wanted to see both his customers happy and the company he worked for succeed. 7. During the negotiation phases, I found Benham to be very respectful and considerate. Behnam always listened and tried to understand Casey's position and from that, he would come up with different options that would satisfy both Casey and TechnologyOne. He always focused on achieving the best outcome for everyone and I never felt like he was trying to close a deal for the sake of closing it. 8. I do not recall Benham ever raising his voice or being manipulative or rude during my dealings with him. 438 Mr Dalton gave evidence as to Mr Roohizadegan's commitment to his employer at the time his daughter had fallen ill as follows: 9. I recall very clearly there was one particular occasion in late September 2010, when Casey was finalising the contract with TechnologyOne regarding the property and rating system. I found Benham to be a very dedicated worker. 10. I recall during that time, Benham's daughter was very ill and had to be rushed to hospital. However, Behnam was desperately keen to close the deal with Casey on behalf of TechnologyOne. 11. I was extremely surprised that despite his daughter's very ill health at the time, Benham still made a trip out to my office in order to ensure the contract documents were signed. On top of that he also had to bring along two of his other children with him because his wife was at the hospital with his daughter. 12. Benham was very apologetic for having to bring his children with him, however he had no choice but to do so because of his daughter's critical condition. I recall Benham was extremely concerned and worried about his daughter and spent quite some time at my office talking about his daughter's situation. 13. At the same time, I knew there was an urgency for Behnam to close the deal with Casey, and he was quite deliberate about wanting to get that result. Behnam was very open and honest about his intentions at the time. He mentioned that Adrian Di Marco wanted the contract signed off before the end of September 2010 so the contract value could be booked for the financial period. I had the impression that it was quite a big deal for him and TechnologyOne to have this contract signed at the time. 439 Mr Dalton was not cross-examined. I proceed on the basis that I am entitled to accept his evidence.

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Mr Thompson 440 Mr Thomson gave evidence that he had been employed as Operating Officer Sales and Marketing with TechnologyOne from January 2014 to October 2014. At that time the company was planning to become a much bigger corporation with a global scale. Because of his experience working with multinational software companies, he had been tasked with using that experience to increase the performance of the existing workforce and grow the organisation rapidly. His responsibility was to drive sales and marketing for TechnologyOne. He had reported directly to Mr Di Marco, with whom he had regular dealings. 441 His evidence was that he had thought there was not a cultural fit between him and TechnologyOne, and in the event his employment had been terminated in October 2014. He had been replaced by Mr Harwood. 442 He had met Mr Roohizadegan when he first started in the role of Operating Officer Sales and Marketing. He gave evidence as to what he understood of the then relationship between Mr Roohizadegan and Mr Di Marco as follows: Mr Tracey: And then I will ask you also about your understanding of the relationship between Mr Di Marco and Mr Roohizadegan; how would you describe that? … Mr Thompson: … Adrian had a lot of respect for Behnam's contribution to the business. He was responsible for the Victoria operation and represented a large share of the revenue contribution to TechnologyOne. 443 Mr Thompson had been responsible for evaluating Mr Roohizadegan's performance. He gave the following evidence as to his assessment of Mr Roohizadegan's performance, and of their working relationship as it evolved over that time: Mr Tracey: Mr Thompson, the - I'm going to take you to another document now. This is at volume 15 of the court book, and I will just ask you to turn to the very end of that volume - or almost the very end - and to page 9636. Are you able to describe to the court what that document is? Mr Thompson: Yes. It's a - it's a methodology that TechnologyOne uses to rate the performance of sales personnel, and it's really predicated on performance against quota. Mr Tracey: And, as I - I asked you a moment ago about your role in assessing performance of those in your - those of your direct reports, including Mr Roohizadegan. Are you able to say what rating you gave him by reference to this? Mr Thompson: Yes. As a - as a bi-product of performance he would have been rated an A. His Honour: He would have or was? Mr Thompson: He was. His Honour: And that is to be understood - what A means - by reference to the table at page 9363? [Being "Consistently exceeds performance expectations to achieve exceptional results: Ex A14]. Mr Thompson: That's correct. Yes. Mr Tracey: Your Honour, I won't tender that because it's already in evidence, that table. Are you aware, Mr Thompson, when you would have given that rating to Mr Roohizadegan? Mr Thompson: I can't give you a specific date. His Honour: It doesn't assist by looking at any of the … Mr Tracey: Are you aware of how often ratings were given at TechnologyOne? Mr Thompson: Every six months is my understanding. His Honour: It would have to be in 2014 obviously. Mr Tracey: In 2014 when Mr Thompson is there. His Honour: So towards the end or at the beginning of your time or twice? Mr Thompson: I would imagine I would have done it twice. One would be predicated - as I said it's on results, and I know that Behnam had some excellent results in the preceding year, and during my tenure he also had excellent results. Mr Tracey: And, Mr Thompson, are you able to describe your working relationship with Mr Roohizadegan when you were employed at TechnologyOne? Mr Thompson: Yes. I would say when I first joined, Behnam and I were probably at odds. There were moments where I was giving him feedback and sometimes that was not well received. And I would say that that changed - certainly the first three months was contentious. I would say the next three months was far more even, and I would say the last three months very collaborative and respectful. Mr Tracey: What would you say about your ability to work with him in your respective roles? Mr Thompson: Sorry, could you repeat the question? Mr Tracey: What would you say about your ability to work with him in your respective roles? Mr Thompson: I think at the outset I found him challenging, but I do think during the course of our working relationship, we developed a mutual respect, and I would say within the last three months we could work well together because he was prepared to take coaching and input and advice. Mr Tracey: You're aware that subsequent to your time at TechnologyOne Mr Roohizadegan's employment was terminated? Mr Thompson: Yes, I am aware. Mr Tracey: If it were to be said that a reason for that termination was his inability to work well with you, what would you say to that? Mr Thompson: I would disagree with that. I think he and I did work well together in the later stages of my tenure. 444 In cross-examination, Mr Thompson accepted that Mr Roohizadegan had challenged the achievability of what is described as the "stretch target" for additional sales over budget as Mr Thompson had proposed. Mr Roohizadegan had done so on the basis that he had a non-performing sales team. Mr Thompson explained what a stretch target was as follows: Dr Spry: Now, I thought your evidence a little while ago was that that target was not imposed by you that was something that the individual manager put forward as their proposed target. So which one is it? Mr Thompson: So - so the naming convention - one is a forecast, one is a target. Dr Spry: Yes? Mr Thompson: The forecast remains unchanged. So the forecast is the forecast which the individual owns. Dr Spry: Yes? Mr Thompson: The target is an annual number set for the year, and then the stretch target is "I think you can do more". Dr Spry: Yes? Mr Thompson: "Why don't we shoot for the 2.5 million?" There is no consequence on negativity associated with not hitting the stretch target. The forecast does not change. It is an aspirational number to achieve. So the forecast was not changed at all. 445 Mr Thomson agreed that some of Mr Roohizadegan's sales team had been non-performing. Mr Roohizadegan had agreed to be mentored by him on developing his management skills. He had agreed to cut Mr Roohizadegan some slack and to enable him to hire more people and develop both those new individuals and his existing hires (T466, lines 7-12; T468, lines 9-11). 446 Mr Thompson agreed that Mr Roohizadegan had copied his email challenging the achievability of Mr Thompson's "stretch target" to Mr Chung and Mr Di Marco, but denied that he had shaped his later conduct towards Mr Roohizadegan as a result of his wishing to avoid issues with Mr Di Marco. The relevant evidence is as follows: Dr Spry: Now, I understand, Mr Thompson, that you don't have that before you, but the email from Mr Roohizadegan was sent to you, CCd to Mr Chung and Mr Di Marco. Now, I want to ask you this: it was a common occurrence, was it not, for Mr Roohizadegan in responding to you - sorry, I withdraw that. When you first commenced employment with TechnologyOne - and I understand your evidence to be for the first three months you found Mr Roohizadegan to be a challenging person to work with? Mr Thompson: That's correct. Dr Spry: And he was your - he was reporting to you? Mr Thompson: Correct. Dr Spry: And when you found him challenging, what do you mean by that? Mr Thompson: I would say that he was set in his ways. Very - wanted to control things, and he wasn't necessarily receptive to feedback. Dr Spry: And did he see you as someone who was interfering in his running of the Victorian state region? Mr Thompson: Potentially at the outset I could imagine he would think that. Dr Spry: Now, it was a common occurrence that he would, throughout your tenure, when he would emailed you about issues on which you disagreed - for him to copy in at least Mr Di Marco; correct? Mr Thompson: Yes, that's correct. Dr Spry: And you would agree during your tenure at TechnologyOne that he was close to Mr Di Marco? Mr Thompson: Yes. Dr Spry: And you would agree that if he had any issues with you he would escalate those issues to Mr Di Marco? Mr Thompson: Yes. Dr Spry: And in your later tenure at TechnologyOne you would agree that the way you managed Mr Roohizadegan was to try and first seek the support of Mr Di Marco; correct? Mr Thompson: I don't believe so. Dr Spry: And you would agree that in your later months at TechnologyOne you tended to let Mr Roohizadegan run his - run the Victorian region much as he wanted to to avoid further issues with Mr Di Marco; correct? Mr Thompson: No, I would disagree with that. Dr Spry: Yes. There's no further cross-examination. Thank you, your Honour. 447 The Applicant submits that: 7.11. The Court should accept Mr Thompson's evidence as being objective and truthful. 7.12. In giving evidence, it was clear that Mr Thompson had no loyalty to either Mr Roohizadegan or the Respondents. Indeed, Mr Thompson makes concessions that for the first three months of his employment with the First Respondent, his relationship with Mr Roohizadegan was "contentious" (T458 at 22 to 23) and that he found Mr Roohizadegan "challenging" (T458 at 30). Mr Thompson does go on to say that in the last three months of his employment with the First Respondent, his relationship with Mr Roohizadegan was "very collaborative and respectful" (T458 at 23 to 24). 7.13. This evidence supports the proposition that the relationship between the Applicant and Mr McDonald would have improved over time. 448 The Respondents submit that: The Applicant called Mr Lee Thompson. Mr Thompson confirmed that at least in the early stages of his relationship with the Applicant, the Applicant had difficulty working with Mr Thompson. Mr Thompson's evidence supports the conclusion drawn by Mr Di Marco that the Applicant had difficulty working with his three (3) managers leading up to the termination of his employment - namely, Mr Thompson, Mr Harwood, and Mr MacDonald. 449 Mr Thompson was an impressive witness. I agree with Mr Tracey that there is no indication that Mr Thompson shaped his evidence to assist Mr Roohizadegan. I do not discount that Mr Thompson might once have harboured some bitterness towards TechnologyOne having regard to his having been dismissed by that company after less than a year. Dr Spry however does not suggest, and nor would I conclude, that his evidence should be discounted for that reason for want of credit. 450 Whilst not directly related to the issue of credit, I should mention that I am unpersuaded by Dr Spry's submission that Mr Thompson's evidence supports the conclusion purportedly drawn by Mr Di Marco that the Applicant had difficulty working with his three managers leading up to the termination of his employment: namely Mr Thompson, Mr Harwood, and Mr MacDonald. Mr Thompson's evidence as to whether Mr Roohizadegan had had such difficulty in respect of their relationship, taken as a whole, was to the contrary. 451 In any event, what is material to the outcome of this proceeding is the mind and reasons of the decision maker. In that regard it is conspicuous that Dr Spry chose not to ask any questions in cross-examination to suggest that Mr Thompson had ever conveyed to Mr Di Marco the views he submitted (in my view implausibly) the Court should find him to have possessed with respect to Mr Roohizadegan's ability to work with him..

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Mr David MacDonald 452 Mr David MacDonald gave his evidence-in-chief by way of affidavit (Ex A50, CB199-203). 453 Mr David MacDonald's evidence was that he had been employed in Melbourne by TechnologyOne from 2005 to July 2011 as its Customer Development Manager and, once Mr Roohizadegan had commenced with the company, had reported directly to him: 17. When Benham commenced as manager, it was a breath of fresh air, as we clicked immediately, and he was very fair in spreading opportunities among the business development team. For example, if a deal or opportunity came up that fell into an employee's vertical market, Benham would give that deal to them. He did not seem to favour any employee in particular. 454 His evidence as to Mr Roohizadegan's management style was that he had mentored new staff, and had been sympathetic to those with personal family difficulties. However, he accepted that Mr Roohizadegan was direct in his instructions to employees: 10. Benham could, at times, come across quite direct in conversation, but that was just his style. That is not to say that Benham was not polite, but he was direct in his instructions in his expectations [sic]. 11. I do not recall any employees in the Melbourne office clashing with Behnam over something derogatory (that is, something Behnam had said or done that was not nice). More than anything, there were cultural differences between Benham and some employees. For example, employees might not have understood why Benham was approaching something in a certain way, or did not understand why he was communicating something in the way that he was. … 23. Benham required the sales team to wear ties. Whilst the sales team complied with this, I recall over hearing comments about Benham being "old school". 24. Benham did not allow any swearing or vulgar language in the office. He was quite old school and respectful in that regard. 455 Mr David MacDonald gave evidence that he had dreaded travelling to Brisbane because the head office was very "club like" and closed off, as if it were for local employees only. 456 In cross-examination by Dr Spry, Mr David MacDonald accepted that he and Mr Roohizadegan had become friends and that he had remained in contact with him. He accepted that Mr Roohizadegan may have lost a deal for TechnologyOne with City West Water because, at the time of his daughter's illness, he had been on the phone for much of the time during a business meeting: which had been unusual for him. Mr David MacDonald was not otherwise cross-examined on his affidavit. 457 The Applicant submits that: 7.14. Mr MacDonald gave evidence that was consistent with his witness statement. The Court should accept Mr MacDonald's evidence as being the truth. 458 The Respondents submit that: Although Mr David MacDonald ceased employment with Technology One in July 2011, well before the Applicant's exercise of any workplace rights, he said during cross-examination that he remained in regular contact with the Applicant since then, meeting up with him every six weeks or every couple of months, and that they have become friends (T489). Notwithstanding this, the Applicant chose to lead no evidence from Mr MacDonald as to the Applicant's health before and after his dismissal. The Court should infer that any evidence from Mr MacDonald on this issue would not have assisted the Applicant, and it is not the role of cross-examination to draw this information from Mr MacDonald. 459 I do not take the Respondents to suggest that I should discount Mr David MacDonald's credit by reason of his continuing friendship with Mr Roohizadegan. Mr David MacDonald was not cross-examined as to any material aspects of his evidence regarding his assessment of Mr Roohizadegan's management style with his subordinates. I accept Mr Tracey's submission that I am entitled to find him to have been a witness of the truth. 460 I accept however Dr Spry's submission that with the exception of a reference to the immediate circumstance of Mr Roohizadegan's conduct when his daughter became ill (which I infer related to the stress he was then suffering) Mr David MacDonald did not give any evidence as to Mr Roohizadegan's health before and after his dismissal. Nonetheless, I do not draw the inference Dr Spry submits I ought to draw in respect of that circumstance. The fact that Mr David MacDonald gave no evidence as to Mr Roohizadegan's mental anguish prior to his dismissal beyond a single instance when he had learnt of his daughter's illness is entirely consistent with Mr Roohizadegan having been at pains to not disclose his subsequent circumstances to those with whom he worked. Beyond that, Mr Roohizadegan's health status after his dismissal is not in dispute: the expert evidence called by both parties, notwithstanding some differences as to its aetiology, is entirely consistent with respect to his condition since that time. The expert medical witnesses are agreed that he suffers from a complete incapacity to work.

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Mr Di Guilmi 461 Mr Di Guilmi gave evidence-in-chief by way of an affidavit (Ex A51, CB288-294). 462 His evidence is that he was employed by TechnologyOne from September 2011 to November 2014 as an Account Manager in sales before leaving for a higher paid position with his current employer. While with TechnologyOne he had reported directly to Mr Roohizadegan "with dotted line reporting to Mr Pantano". 463 He gave the following evidence of his experience of Mr Roohizadegan's relationship with him and the TechnologyOne sales team: 7. Benham was a great mentor and I learned a lot from him from a sales perspective. A lot of what I learned I still apply today in my current job. For example, from Benham I learned to be professional 100% of the time by wearing a suit and tie every day. This is something that I still do today, even on casual Fridays. 8. Benham had a strong character and was the ultimate professional who respected the hierarchy of TechnologyOne more than anything else. Behnam was also a firm manager, in that he had standards that he expected his team to comply with. For example: (a) if someone in the sales team was going to be late to work, Behnam required prior notice; and (b) if someone did not dress professionally in a suit and tie, Behnam would warn them. 9. I would describe him as an alpha type character, in that he was an intelligent and highly successful man, who commanded respect due to his role as General Manager and leader of the Victorian office. However, at no point in time did I feel that he was offensive or as though he stepped outside the realms of a professional relationship. … 11. During the time that I worked with Benham, I did not hear Benham make any racist or sexist remarks to anyone. I, along with other sales team members, attended numerous Australian Israel Chamber of Commerce luncheons held at Crown's Palladium, and organised by Benham. 464 He further gave evidence of the culture of the Melbourne office: Culture of Melbourne Office 15. The culture of the Melbourne office was generally quite good. I found most people got along at the Melbourne office and I did not observe any particular issues or unhappiness amongst people who worked there. 16. Friday night drinks were enjoyed each week by anyone who wished to attend. The fridges in the kitchen were stocked with alcoholic beverages every week. 17. I recall that Benham provided coffee and cakes from the café located in the Melbourne office at most sales meetings. I also recall cakes being provided and enjoyed in celebration of a team members birthday. 18. Being in the sales industry, I would say the culture was highly successful and high achieving, which was one that Benham promoted. I really enjoyed being part of a highly driven team. From my perspective, being part of the Victorian region, which was highly successful, was key to myself enjoying my time at TechnologyOne. I was able to learn a lot from many successful individuals at TechnologyOne and that came down to that successful culture driven by Behnam. Staff turnover 19. I did not notice any staff turnover in the Melbourne office that was out of the ordinary for the industry. 465 In brief cross-examination, Mr Di Guilmi denied recalling Mr Roohizadegan saying that certain women who were to be employed would not be a distraction because they were ugly. In re-examination, he clarified that he did not believe Mr Roohizadegan had made those remarks. 466 Dr Spry made no submissions regarding Mr Di Guilmi's credit. I am satisfied Mr Di Guilmi was a witness of the truth. I accept his evidence as it relates to the period it covers.

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Mr Pantano 467 Mr Pantano gave his evidence-in-chief by affidavit (A52, CB212-220). He was examined by video link. His evidence was that he had been employed in Melbourne by TechnologyOne from December 2010 to November 2013 as Senior Customer Account Manager. He had resigned to take up a substantially higher paying position with his present employer, Oracle Corporation. 468 Mr Pantano gave the following evidence about Mr Roohizadegan's management style: Benham's management style 10. Behnam's management style was directive, that is, he would say words to the effect of "do X, don't do Y". I would accept this for what it was, being some direction to help me do my job better, as his experience of what worked provided short cuts to success for others. 11. I do recall some employees taking offence to Benham's directions. For example, Simon may have said to me words to the effect, "why is he telling me what to do? I know how to do this." It was not uncommon for employees in the Melbourne office to voice the view that Benham was micromanaging, controlling, challenging or extremely detailed. 12. I recall having a conversation with Simon [Dugina] and Mathew [Di Guilmi], and potentially others, where I said words to the effect, "Benham, he's a different style of guy, but he's well intentioned. Just listen to the intention and don't get caught up in the words, his success is not an accident." 13. I recall Benham saying to Simon, and other more junior sales employees, words to the effect, "before you send that email, make sure I see it first" or "I want Philip to read your email before you send it." I never understood Benham to say this in a demeaning or belittling way, it was just his style. Benham did this with all employees, it was consistent behaviour across the team. 14. However, Benham was very open to receiving assistance, as much as he was to be giving it. For example, Benham would regularly share his emails with me and others, and say to me words to the effect, "run your eye over this, tell me what you think, I'm intending to convey "x" does this email convey that?" 15. I do not recall Behnam ever dictating an email to a sales employee. Behnam may have said words to the effect, "I would say this" or "I would say that" or "it would be better to say this". … 23. I recall an occasion where I made a comment in the open office to Behnam with words to the effect, "that's when you get paid the big bucks." Benham took immediate offence to this, and said words to the effect, "I work like a donkey. I work 18 hours a day, I dedicate my life to this place, no one words as hard as I do, I deserve to be successful because of all the sacrifices I have made for TechnologyOne." Benham's response gave me an insight into the type of person he is - he took pride in the fact that he work as hard as he did. He was also not aware that my words to him where [sic] a very common phrase and not intended to be an insult, it shaped how I worked with him going forward. 469 His evidence was that the Melbourne office had been a social place to work and that people regularly went out to coffee or lunch together and held regular Friday night drinks albeit without a relaxation of formality: 35. Whenever a weekly sales meeting was held on a Friday, Behnam always provided chips and drinks (soft-drinks), or provided a round of coffees. 36. I recall that Behnam did insist that everyone wear a tie, which was a standard he expected from his employees. Behnam also wore a tie. 37. I recall Mr Peter Sutching (Peter) coming to the Melbourne office in or about 2012, and Behnam saying to him words to the effect, "respectfully, this is my branch/office, I have expectations that everyone wears a tie when they come to work. Can you please wear a tie?" I recall hearing Peter muttering under his breath words to the effect of, "fuck off, what year do you think this is." 470 His evidence was that notwithstanding the growth and the importance of the other regions to its financial success, TechnologyOne had remained a Brisbane-centric organisation: 44. TechnologyOne was a head office mandated organisation, in that all the key roles were in Brisbane, and there was no opportunity for career growth outside of Brisbane. The organisational structure was very flat. 45. There were also challenges in the way the organisation was set up. TechnologyOne had both product managers and branch (or state) managers. There was conflict between them, as a product manager would want to be actively involved in a deal, but a state manager would want to run the transaction, as it was in their state. 46. A classic example is student management services (SMS), which had its own business unit. The conflict arose because the SMS business unit was actively involved with a customer that may have been in Benham's region and at times without his knowledge. 471 He instanced (at [54]) Mr Harwood becoming involved with his customer accounts without telling him, and Mr Roohizadegan having taken issue with that on his behalf. He gave the following evidence as to his understanding of the then relationship between Mr Harwood and Mr Roohizadegan: 55. It was common knowledge that Benham and Martin did not have a great relationship. Whilst their relationship was publicly respectful, it was clear that there was no real respect between the two. At a time when Martin lead the Product and Development team, I recall him saying words to the effect of, "you know what Benham's like" or "you can't even take him to a customer". 472 In brief cross-examination, Mr Pantano accepted that he had viewed TechnologyOne as a good company for which to work and had applied for a position at a higher level within the company which he had not obtained. He rejected that he had been late in attending a meeting with a client that Mr Harwood had facilitated. He conceded that some people (I infer in the Melbourne sales team) had been offended by Mr Roohizadegan's directive manner. 473 The Respondents do not submit that I should reject Mr Pantano's evidence for want of credit. I am satisfied both that Mr Pantano was a witness of the truth, and that I am entitled to accept his evidence.

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Mr Davey 474 Mr Davey gave his evidence-in-chief by affidavit dated 3 October 2019 (Ex A53). He was examined by video link. His evidence is that he had been employed by TechnologyOne from November 2010 to September 2012. He had been responsible for a product called Customer Relationship Management (CRM). He was currently an account manager for Oracle Corporation and based in the United Kingdom 475 The thrust of Mr Davey's evidence was there was no reason for incentives to be different in respect of CRM and another product which was also marketed by TechnologyOne: Student Management Services (which I have earlier abbreviated to SMS). They were competing products. That was because although SMS was aimed specifically at tertiary education, CRM systems were routinely sold into the same market where the "customer" was identified as students or alumni: Dr Spry: Now, you were responsible for a product that you described as CRM, Customer Relationship Management; correct? Mr Davey: That's … Dr Spry: And you understand, do you, that Student Management Services, SMS, is a complete system for universities and the tertiary education from the enrolment of students through to the end? Do you understand … ? Mr Davey: Yes. I - I have a good understanding of SMS. Yes. Dr Spry: Yes. And customer relationship management, as I understand it - well, correct me if I'm wrong - is about managing clients and the like. When someone comes in and buys something, that's entered in and receipted and so on; correct? Mr Davey: That's - yes. I mean, in its very loose terms, absolutely, and in tertiary education it can mean student relationship management. His Honour: Sorry. The line here is not absolutely precise. So it could mean …? Sorry. Could mean something. I didn't hear you? Mr Davey: Yes. So customer relationship management, it depends what is termed the customer. In tertiary education, you could argue that the - the customer was actually a - a potential student, a - a current student or, indeed, alumni. So that's where CRM is often sold, and it's sold as much in the UK, in the States and Australia into universities and academia as - as a different student management system. In fact, Oracle itself, we sell our CRM systems into universities quite widely. Dr Spry: That's now - we're talking about 2010 to 2012. Now, I would suggest to you that at that time, at the very least, the SMS product was a different one to the CRM product; correct? Mr Davey: Yes, it was a different product, yes. Dr Spry: Now, you see you give some evidence that in paragraph 21 you don't see any reason why state managers such as Mr Roohizadegan should not have been incentivised, paid in incentives on the sale of SMS in their region? You don't see any reason why he should not have been paid incentives on the SMS product? Mr Davey: Well, he was paid incentives. He was paid incentives on any product that was being sold. 476 Without asserting any direct awareness of Mr Roohizadegan's individual compensation plan, Mr Davey had understood Mr Roohizadegan to have been incentivised on the same basis for both products: he expected that that would have been the case (T507, lines 1-20). 477 The Respondents submit that I ought to prefer the evidence of Mr Arnott who gave evidence for the Respondents to that of Mr Davey, and reject that CRM and SMS were comparable and competing products. I deal with that question later. However, Dr Spry does not submit that I should reject or place lesser weight on Mr Davey's evidence for want of credit. I am satisfied that Mr Davey's evidence was that of a witness of the truth as he understood it to be.

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Mr Preston 478 Mr Preston gave evidence-in-chief by affidavit (Ex R44, CB410-419). He is currently employed by TechnologyOne as an Associate Application Managed Services consultant. He had earlier worked for five years (from 2011) as a Recruitment Partner. His job had been to enable TechnologyOne to recruit the best talent in the market. He had managed all recruitment for the Sales and Marketing and Research and Development streams in every region for the business. 479 He gave the following evidence as to what that role had involved: 3. My role as Recruitment Partner was inward facing in that the managers were my customers because it was my job to find highly skilled, professional, talented people to fill any vacancies within their teams. My role involved engaging talent to get them excited and interested in TechnologyOne and then ultimately getting them in front of the managers to not only interview but to "sell TechnologyOne" by talking about their experiences, the company, the culture and the role. The messaging that we tried to get all our managers to convey was for the candidates to walk away wanting to work for TechnologyOne, regardless of whether the Manager wanted to hire them or not. 480 His evidence is that as one of his "customers", Mr Roohizadegan was the subject of adverse feedback. In contrast to Mr Metcalfe, he had been challenging to work with: 8. On a number of occasions, I received feedback from candidates and from agencies giving me feedback from their candidates after interviewing for positions in the Victorian office of TechnologyOne. The feedback was that they loved the opportunity but that they did not want to work under Benham. Some examples of the feedback that I received about Benham included comments to the effect of 'I just can't work for that man'; 'I couldn't see myself working for him'; 'you'll be crazy to work with this guy'. He's a chauvinistic pig' [sic] and 'I'll work for the business, but I won't work for the manager there'. 9. I found Benham to be a challenge to deal with because I would spend a lot of time sourcing talented people only to have them lose interest when they met Behnam. On the other hand, Behnam would not want to proceed with some candidates who had years of experience at reputable companies. To my mind, I also felt Benham would not want to proceed with particular candidates if he thought that they would be a threat to him … 10. By way of comparison, I recall that when Richard Metcalfe was in the Victorian region for a short time from April 2015 to March 2016 to temporarily fill the newly created role of Regional Sales Manager until Boris Ivancic was recruited, he would interview candidates to fill some of the vacancies in the region. The feedback from candidates who had been interviewed by Richard was really positive and the exact antithesis of what we would get about Behnam. However, after the candidates went on to meet Behnam and found out that Richard wasn't going to be there indefinitely, they were no longer interested. Like for example Matthew Bennett whose feedback was 'Richard was such a different guy to talk to. He's a great guy. I was disappointed when I found out I wouldn't be reporting to him. I told the recruiter 'If Benham is the person I have to directly report to I won't continue on. That would be disappointing though"). 11. I recruited successfully for all the other regions and there were no issues because they had good managers and I could sell them with confidence because I believed in the managers that we had. Conversely, with the Victorian region, unfortunately I didn't feel that confidence, not only from the feedback that I had received, but from my dealings with Benham, how he talked to me (and other people in our team). Based on my experience, Benham wouldn't be a pleasant guy to work for. Having interacted with Benham at functions I found him disingenuous. The other challenge was trying to sell the leadership under Behnam with confidence. When asked the questions what's the manager like, I stepped around the question so candidates could make up their own impression. I had to recruit in the region regardless of leadership, but it is people's careers so I would let candidates make up their own minds. 481 He had raised those concerns with Ms Gibbons and Ms Carr. 482 In or around October 2015, Ms Gibbons had asked him to create a spreadsheet of the feedback from potential candidates from the Victorian region (paragraph [15]). He had done so (Ex R45, KP-6, CB8046). His spreadsheet contained reports of a number of complaints he received during October and November 2015. 483 He had kept the spreadsheet on Google Drive, and shared it with Ms Gibbons and Mr Harwood (paragraph [16]). He did not produce the spreadsheet to facilitate a "witch hunt". His assumption had been that it was to be used to provide "referenceable incidents of feedback so they could be addressed to improve the region" (paragraph [17]). 484 He did not give any "direct feedback" to Mr Roohizadegan. He had been reluctant to do so because on an earlier (unidentified) occasion when he had done so, Mr Roohizadegan had "bitten his head off and reacted defensively" (paragraph [18]). 485 On 9 November 2015, Mr Harwood asked him for his comments on the difficulties in recruiting in Victoria. He had replied to Mr Harwood's email (Ex R45, KP-1, CB4500) to the effect that candidates for positions with TechnologyOne did not want to be put forward or apply if they would be working for Mr Roohizadegan (paragraph [6]). 486 On 10 November 2010, Mr Preston sent an email (Ex R45, KP-8, CB4502) to Mr Harwood. In that email he reported that a candidate had described his interview with Mr Roohizadegan as the worst he had ever had. 487 Mr Preston gave evidence in his affidavit that when Mr Roohizadegan had left, the position with respect to recruitment had improved (paragraph [20]). 488 In cross-examination, Mr Preston conceded that recruiting for any senior sales role was a challenging proposition throughout the TechnologyOne business nationally (T821, lines 38-40). He accepted that Mr Roohizadegan never told him that he viewed any candidate as a threat. 489 Mr Preston conceded that over the period 2013-15 he had received not only negative feedback but also positive feedback about Mr Roohizadegan. He conceded that he had omitted to mention any of the latter instances in his affidavit. He denied that it thereby conveyed an inaccurate picture (T825, line 13-T826, line 21): Mr Tracey: You agree with me that in the period 2013 to '15 you are receiving positive feedback about Behnam, aren't you? Mr Preston: We have all kinds of feedback, so - so, yes. Mr Tracey: Yes. You don't refer to that in your affidavit, do you? Mr Preston: We don't because it wasn't something we needed to improve. Positive feedback is exactly what we want. Mr Tracey: No, I'm talking about you. You don't record that in your affidavit …? Mr Preston: Yes. Mr Tracey: … that there has been positive feedback about Behnam, do you? Mr Preston: I don't. No. Mr Tracey: No. And that's because you are seeking to paint a picture to the court, like you did in the spreadsheet, of a very negative situation with respect to the recruitment by Behnam, aren't you? Mr Preston: I don't agree. Mr Tracey: Well, surely you must agree with me that it's completely inaccurate if you are - to paint the picture if you're receiving positive feedback, and yet you're not recording it alongside the negative feedback in your affidavit? Mr Preston: The - the spreadsheet was designed so that we had referenceable feedback from the candidates that gave us negative feedback on Behnam so that we could address is [possible transcription error]. Mr Tracey: I'm not asking you about the spreadsheet at the moment. I'm asking you about your affidavit? Mr Preston: Okay. Mr Tracey: This is your affidavit to the court in which you are seeking to present a picture, are you not, of how Behnam was perceived by recruits; is that correct? Mr Preston: Say that again, sorry. Mr Tracey: In your affidavit, you are seeking to paint a picture to the court as to how Behnam was received, or perceived, by recruits, aren't you? Mr Preston: In my affidavit I'm expressing lots of different things, but - sorry, I don't - I don't get your question directly. Mr Tracey: You're trying to tell a story in here about how Behnam was perceived by recruits in the Victorian region; aren't you? Mr Preston: Some points in my affidavit highlight the feedback that we got from Behnam. Mr Tracey: From Behnam? Do you mean about Behnam? Mr Preston: Sorry, about Behnam. Mr Tracey: Yes. And the feedback that you're highlighting about Behnam is purely negative, isn't it? Mr Preston: What's in the spreadsheet reflects the times we got negative feedback on him, yes. Mr Tracey: No, I'm not asking you about - I'm talking about your affidavit. You in your affidavit have only chosen to refer to the negative feedback about Behnam. It's a simple proposition, Mr Preston. You agree with it? Mr Preston: Yes, I have highlighted those examples. Yes. Mr Tracey: Yes. And you've deliberately omitted to include positive feedback about Behnam; that's right, isn't it? Mr Preston: I haven't included it in there. Mr Tracey: No. And that's because you want to advocate for the proposition that he was bad from the perspective of all recruits; that's right, isn't it? Mr Preston: Say that again, sorry. Mr Tracey: You want to advocate that he was bad from the perspective of all recruits, that's why you've only included the negative feedback? Mr Preston: So in my affidavit the examples I've given were for the negative feedback that we got. Positive feedback was expected from all regions. 490 He had no recall of receiving positive feedback about Mr Roohizadegan contained in email addressed to him dated 1 October 2013 (Ex A73). 491 Mr Preston accepted that there had been successful recruitments in the Victorian region in 2015/16 when Mr Roohizadegan was regional manager (T834, lines 22-23). He conceded that the spreadsheet he had prepared at Ms Gibbons' request had been designed to capture negative feedback (T829, lines 17-18). He understood Ms Gibbons to have requested it on Mr Harwood's behalf (T831, line 39). 492 He conceded that he knew that Mr Roohizadegan had complained about his conduct in not returning phone calls and emails from external recruiters (T832, lines 30-40). 493 His evidence in cross-examination regarding his describing Mr Roohizadegan as "disingenuous" was as follows (T833, lines 16-33): Mr Tracey: And you also describe him as disingenuous? Mr Preston: Yes. Mr Tracey: And you base that comment which is a pretty serious comment, isn't it …? Mr Preston: Yes. Mr Tracey: … to call someone disingenuous … ? Mr Preston: Yes. Mr Tracey: … you base that on having interacted with him at functions; is that your evidence? Mr Preston: There's - there's more context to it than that if you would like me to elaborate. Mr Tracey: Well, you've said in your affidavit: But having interacted with Behnam at functions I found him disingenuous. So are we to take it that you formed that view from interaction at functions; is that right? Mr Preston: It was a magnitude of things. It was - it wasn't just one isolated case. I didn't build that in - just from one interaction. 494 The Applicant submits as follows: 7.24. Mr Preston was an unsatisfactory witness who was evasive in his responses to questions put in cross-examination. In particular, Mr Preston would not admit that he reported only negative feedback to Mr Harwood and Ms Gibbons in relation to Mr Roohizadegan, and that he had failed to give a complete and accurate picture by not reporting any positive feedback. It was only after lengthy cross-examination on this point that Mr Preston admitted that he had only reported negative feedback (T824-832). 7.25. In light of the above, the Court should not accept Mr Preston's evidence and, in any event, give it very little weight. He, like many of the Respondents' witnesses, had an agenda of seeking paint the Applicant in a negative light. Truth and objectivity came second to that goal. 495 The Respondents make no submissions concerning the credit of Mr Preston. 496 When giving his evidence Mr Preston presented as a highly confident and assertive individual: notwithstanding the concessions he was compelled to make. 497 In re-examination, asked why he did not follow up with Mr Roohizadegan at the end of 2015 regarding the negative feedback Mr Preston gave the following evidence: There was a scenario where I had presented Behnam with feedback, and the way that he responded to me was really defensive and made me feel very uncomfortable, so I had spoken to my business partner - so we had presented this feedback, and it was all about positive improvement. It's all - all I want as a recruiter is candidates to come away with a good experience. We're not going to want to recruit them all. Some of them - they're not going to be right for the company and they're not going to have the right skills, but they can still have a good experience from that engagement. So I had presented that to Benham and that we need these people just to come away with a positive experience of Tech One, and it was - the way that it was - he responded to me was - as I said, made me feel uncomfortable. I took it to Rebecca to say, "This is the scenario. This is the response", and she said, "You don't have to be made to feel like that", so she - as the HR person, she said, "You can bring the feedback to me and then we can address it from there" (T839). 498 Mr Preston's explanation as to why he compiled a spreadsheet behind Mr Roohizadegan's back at the request of Ms Gibbons and Mr Harwood without informing Mr Roohizadegan of what, on his evidence, had been said by potential recruits about his interviewing style is wholly inconsistent with the self-confidence and assertiveness he displayed when giving his evidence. That discrepancy leads me to be sceptical that Mr Preston did in fact undertake that task, as he gave evidence, assuming it was intended to provide referenceable incidents of feedback so they could be addressed to improve the region: not as part of any '"witch hunt" or, to put the matter more neutrally, to provide only adverse information about Mr Roohizadegan to Ms Gibbons and Mr Harwood. 499 His description of Mr Roohizadegan as having been "disingenuous" based on having interacted with Benham at functions was not given any substance by his condescending to particulars: notwithstanding Mr Tracey having opened the door to him taking that opportunity in cross-examination. 500 I accept Mr Tracey's submission that in both his affidavit and his oral evidence, Mr Preston was seeking to paint the Applicant in a negative light rather than to provide a fair and rounded picture of his interactions with Mr Roohizadegan. It was with the greatest reluctance that Mr Preston accepted that others he had sought to recruit may have said positive things about Mr Roohizadegan. 501 I decline to characterise Mr Preston as other than a witness of the truth. However, it is clear that he disliked Mr Roohizadegan. That was not only demonstrated directly by his description of Mr Roohizadegan as being disingenuous and, in his view, not a pleasant guy with whom to work. It was also demonstrated by his being willing to lend himself to the collection of exclusively negative information about Mr Roohizadegan and sharing it, in that form, by Google Drive with Mr Roohizadegan's immediate superior: Mr Harwood. I reject that it is credible that he undertook that task on the assumption that the material he was collecting was later to be drawn on to help improve Mr Roohizadegan's performance. 502 Mr Di Marco (along with TechnologyOne) does not advance the proposition that Mr Roohizadegan's manner of conducting interviews or recruiting staff was a reason for his termination. For that reason, Mr Preston's evidence is of limited relevance in these proceedings. To any extent however that it may be thought otherwise, I am satisfied for those reasons that I should place little weight on the views he expresses and the facts he asserts: save when confirmed by contemporaneous evidence.

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Mr Jarman 503 Mr Jarman gave the bulk of his evidence-in-chief by (a partially redacted) affidavit (Ex R48, CB385-390). He is employed as a presales consultant with TechnologyOne. His role in that regard is, inter-alia, to provide demonstrations of software and build solutions for customers. He had been employed by that company for 12 years. From August 2010 until May 2017 he had been a product customer service manager within the Victorian region. He and Mr Roohizadegan had had interacted on a daily basis at work. 504 He gave evidence regarding his opinion of Mr Roohizadegan's management style: 4. I considered that Behnam displayed narcissistic personality traits and if anyone ever tried to contradict him, he would become very angry. Behnam took the credit for any successes but would shift the blame for any failure onto an individual employee, often a sales account manager. 5. I observed that there was a lot of political navigation that you had to take into account when dealing with Benham. Benham's management style was very controlling and I often saw him bullying staff, specifically his own sales team. 6. I observed that Benham sought to control his sales team and involve himself in as many decisions as he could. The sales team were treated like children by Behnam in that if they did not follow his instructions, he would become very upset and would chastise them. I consider that many staff members feared these repercussions. Behnam did not reward based on merit, but instead on how far an employee would bend to his will. 505 He had observed Mr Roohizadegan make disparaging and mocking remarks or racist jokes behind employees' backs (paragraphs [11] and [15]). 506 Initially there had been no female sales staff. When Mr Roohizadegan had finally hired two women, he had made the point that "we had nothing to worry about in regards to distraction as these women were 'ugly'" (paragraph [24]). 507 He had humiliated one employee by calling out his sales staff individually in order of the worst to best performing member (paragraph [17]). 508 Customers had complained to him about Mr Roohizadegan: 28. I recall customers would often make negative comments about Behnam. These negative comments would usually be along the lines of not liking Behnam and not wanting to deal to him. These customers would complain that they perceived Behnam as being insincere and disingenuous. 29. It was part of my role as customer service manager to deal with those negative comments. Our approach would normally be to show empathy for the customers' position and sometimes go as far as suggesting that the customer did not have to deal with Benham directly. 30. I did not raise those concerns about Benham with any of my superiors because I worried that if I elevated the concerns, then Behnam would find out. I feared that there would then be personal consequences and I felt personally vulnerable because I considered that there was a risk that my job was at stake. I observed that Benham was very good at instilling an atmosphere of fear and I considered Benham to be a revengeful person. 509 Mr Jarman's uncontentious evidence was that there were 80-90 staff of TechnologyOne in the Victorian region and in the order of seven or eight sales staff who had reported to Mr Roohizadegan during 2015 to 2016 growing to around nine to ten towards the end of that period, although he did not know many exactly (T869, line 31-T870, line 24). 510 In cross-examination Mr Jarman conceded that he, Mr Finch and Mr Dugina (other witnesses for the Respondents, whose evidence I address below) had discussed their respective criticisms of Mr Roohizadegan. He denied however, contrary to the evidence given by Mr Dugina, that they had discussed those criticisms at the time of his preparing his affidavit in December 2017. 511 Mr Jarman then conceded that Mr Roohizadegan had both been generous and supportive of the staff in TechnologyOne's Melbourne office (T865, line 24) and had assisted them if they had experienced personal difficulties (T865, line 42). He accepted he had not mentioned either of those matters in his affidavit. 512 Taken by Mr Tracey to notes of a 2015 focus group that had been conducted under the heading "Benham Roohizadegan" (Ex A16, CB9641) Mr Jarman then gave the following evidence: Mr Tracey: Now, I will ask you to assume that these are notes taken by human resources in 2015 as part of a focus group, and if you could look, please, under the heading Behnam Roohizadegan, if you can have a read through the six points made under his name, please, and then I will ask you a question? Mr Jarman; Yes. Mr Tracey: Do you agree with me that that is a reasonable or accurate description of Behnam as a manager in 2015? Mr Jarman: Which of these? Mr Tracey: The whole lot? Mr Jarman: The whole lot. No. Mr Tracey: You agree with me that he provided staff with encouragement? Mr Jarman: Yes. Mr Tracey: And he got hands on with opportunities? Mr Jarman: Yes. Mr Tracey; He was very good in terms of helping with opportunities and closing deals? Mr Jarman: Yes. Mr Tracey: Getting his time would be challenging but he was very good? Mr Jarman: Very good at closing deals. Mr Tracey: And helping with opportunities? Mr Jarman: Yes. Mr Tracey: He was viewed by some people as a mentor? Mr Jarman: Some, yes. Mr Tracey: He has taught people the world of sales? Mr Jarman: Yes. Mr Tracey: He has helped to grow people's markets …? Mr Jarman: Yes. Mr Tracey: … and to expand deals? Mr Jarman: Yes. Mr Tracey: He has given learnings to people? Mr Jarman: Yes. Mr Tracey: They have been invaluable for them? Mr Jarman: Yes. Mr Tracey: He's great at his job? Mr Jarman: Specifically those things you mentioned, yes, in that context, yes. Mr Tracey: He can [possible transcription error] authoritarian in his management style. This may be a cultural thing? Mr Jarman: Yes. Mr Tracey: You just have to work around it. People had immense respect for him? Mr Jarman: Some. Mr Tracey: He had an element of control in the way he managed people described as the Kevin Rudd factor? Mr Jarman: Yes. Mr Tracey: Skipping the next one because it's about Richard, he is motivating and supportive. He can also be tough; that's accurate? Mr Jarman: Yes. Mr Tracey: Continuing: He's successful, so I can't not respect that. That's true, isn't it? He was very successful? Mr Jarman: Yes. Mr Tracey: And he had a lot of good qualities, didn't he? Mr Jarman: Yes. Mr Tracey: Continuing: And he tells it how it is, and that's part and parcel of dealing with him. …? Mr Jarman: Yes. Mr Tracey: Continuing: Some people get his attention; others don't. … ? Mr Jarman: Yes. Mr Tracey: Continuing: For some people, he's been great and very patient with them. … ? Mr Jarman: I never saw that. Mr Tracey: Continuing: Everyone wanted his knowledge and assistance. … ? Mr Jarman: No. Mr Tracey: Continuing: Some people were priorities over others. … ? Mr Jarman: Yes. Mr Tracey: And that's because he managed people differently depending on who they were, didn't he? Mr Jarman: Yes. Mr Tracey: And he did that in order to best assist that person to be their best? Mr Jarman: No. Mr Tracey: Now, you've agreed with an overwhelmingly number of positive aspects of Behnam's management, haven't you? Mr Jarman; I have agreed with most of it. Mr Tracey: Most of it. And yet we see nothing of this kind in your affidavit, do we, Mr Jarman? Mr Jarman: Correct. Mr Tracey: You would have to agree with me, simply for that reason, wouldn't you, that the court cannot rely on your affidavit as an accurate and rounded description of Behnam as a manager, can it? Mr Jarman: That's not correct. Mr Tracey: These matters you raise in your affidavit, you didn't raise them with Behnam, did you? Mr Jarman: No. Mr Tracey: That's the cross-examination, thank you, your Honour. 513 In re-examination, Mr Jarman gave evidence that the reason he had not raised his concerns with Mr Roohizadegan had been because he had feared for his job. Mr Roohizadegan was authoritarian and did not like criticism (T868, lines 26-30). 514 The Applicant submits that: 7.29 Mr Jarman was one of the small handful of Melbourne office staff (a tiny percentage of the 80-90 staff in that office) whom the Respondents called. He gave evidence of his negative perceptions of the Applicant. Mr Jarman's affidavit reveals him to be wholly concerned with attacking the Applicant's character. He fails even to say one positive thing about the Applicant. His bias and, moreover, his irrelevance given that he was not a direct report of the Applicant and did not even report his alleged concerns to the First Respondent's human resources manager, make him a witness whose evidence should be given little to no weight. 515 The Respondents made no submissions as to the credit of Mr Jarman. 516 I was initially puzzled by how the Court should assess Mr Jarman's credit given the unusual mix in his evidence of frank concessions in cross-examination (to the effect that not only had Mr Roohizadegan had a lot of good qualities but also that there were many positive aspects of his management style) and repeated stubborn refusals to accept that his evidence-in-chief, which had mentioned not one positive thing about Mr Roohizadegan, was the result of his trying to convince the Court that Mr Roohizadegan's management and behaviour were much worse than he knew them to be. 517 After reflection, I have concluded that the only plausible solution to that conundrum is that in giving his evidence Mr Jarman was prepared to be malicious but was not prepared to be wilfully dishonest in the context of the solemnity of giving his evidence in court. I reject that I should dismiss all of his evidence as that given by a witness careless of regard for the truth. 518 I therefore decline to accept Mr Tracey's submission that Mr Jarman's evidence should be accorded little weight. 519 To the extent that Mr Jarman's evidence was adduced by the Respondents with the intention of it providing an objective basis for the Court to conclude that the Victorian region as led by Mr Roohizadegan was a team "in crisis" at the time he was dismissed, Mr Jarman's fulsome concessions in cross-examination stand overwhelmingly as proof of the contrary. 520 I identify no reason why, to the extent the objective truth of that fact may be relevant, it would not be open to the Court to accept the concessions Mr Jarman made as standing against the acceptance of that proposition. It was given by a witness having knowledge of the relevant circumstances called on the Respondents' behalf. 521 I note however that Mr Tracey's submissions refer to Mr Jarman's evidence that he had not reported his concerns to any of his superiors: not even to TechnologyOne's Human Resources Manager. That assertion is in paragraph [30] of Mr Jarman's affidavit. It has significance in these proceedings. 522 In that circumstance, whether I am right or wrong in my evaluation of the import of his evidence taken overall in the previous regard, it is not open to the Respondents to rely on Mr Jarman's evidence as relevant to Mr Di Marco's state of mind or the state of mind of anyone else within TechnologyOne involved in the decision to terminate Mr Roohizadegan, as at the time he or they made that decision.

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Mr Dugina 523 Mr Dugina gave his evidence-in-chief by (a partially redacted) affidavit (Ex R46, CB392-398). His evidence is that he was employed by TechnologyOne as customer account manager from April 2013 until February 2018. He recommenced employment with TechnologyOne as sales manager in October 2018. That remains his position. 524 He was recruited by Mr Roohizadegan. He had taken the job despite his having been warned by an ex-employee that Mr Roohizadegan was difficult to work with. He then had reported directly to Mr Roohizadegan for two years, and then to Mr Ivancic. During that period however, Mr Roohizadegan had continued to micro-manage his work. He had found it frustrating to effectively work for two managers. 525 His evidence regarding Mr Roohizadegan's management style was, inter-alia, as follows: 6. I observed that while Behnam could be generous and supportive, at times he could be manipulative, bullying and narcissistic. I recall that an example of this behaviour was when Behnam would ask you to dictate an email that you didn't necessarily agree with and then he would make you send that email from your mailbox, sometimes standing behind you will dictating. This occurred multiple times, some examples that I can recall include the following: a. On 30 October 2013, Benham told me to write an email to a customer, Corangamite, to decline sales negotiations and I recall that he stood behind me and dictated word for word what he wanted me to type. I did not agree with the email because I would not have declined to negotiate with the customer however, Benham told me to send the email directly to the customer. Ultimately, we did not secure the sale. Attached and marked 'SPD-1' is a copy of the email Behnam dictated and I typed to the Corangamite on 30 October 2013. b. On 6 February 2016, Benham told me to write an email to him and other senior managers thanking Behnam for arranging a meeting with Yarra Ranges which he had not in fact arranged because I had instigated the meeting myself. At the time, I did not think I could say no to Benham because I thought that he would treat me less favourably if I refused his instruction. Approximately 40% to 50% of my income was commission and I considered that Benham had direct control over my livelihood, the commission I was earning, and the deals I was doing. I believed that if Behnam became disgruntled with me then he would negatively impact those thigs by reallocating customer accounts to other staff. Attached and marked 'SPD-2' is a copy of the emailed dated 9 February 2016 to Behnam, copying in Boris Ivancic, Richard Metcalfe, Peter Sutching and Marie Philips, about the Yarra Ranges meeting. … 9. I observed that Benham would sometimes lie about people's sales figures and pump them up to make other sales team members feel like they weren't doing enough or they weren't working hard enough. I considered that you never knew whether what Benham was saying was truthful or not. I recall that Behnam would often boast about his own accomplishments in meetings but he would downplay others' successes, particularly interstate visitors and non-sales staff. 526 Mr Dugina gave evidence that he had observed that Mr Roohizadegan would "sometimes lie about people's sales figures and pump them up to make other sales team members feel like they weren't doing enough or working hard enough" (paragraph [9]). He recalled that in around February 2014 Mr Roohizadegan had threatened several staff (including himself) that they would be sacked if they did not meet 100% of their half year target. If needed, they would need to give up any extracurricular activities and work 16 hours a day to achieve that target (paragraph [13]). 527 He had decided to raise his concerns with Ms Gibbons in April 2016 because Mr Roohizadegan's behaviour was more erratic than it had been: 19. … I discussed with Ms Gibbons some of the grievances that I had regarding him being so controlling and dictating emails. I also raised what I perceived as some of Behnam's other negative traits such as his compulsive lying and manipulative behaviour. I recall that Ms Gibbons had agreed with me that Benham's behaviour was not acceptable and she had told me that she was aware of what was going on. 528 In cross-examination he accepted that he had quite close friendships with both Mr Jarman and Mr Finch. They had discussed their opinions of Mr Roohizadegan amongst themselves, and had done so at the time of preparing their affidavits in December 2017. He further accepted that despite his criticisms of Mr Roohizadegan, he had been able to have a working relationship with him (T851, line 24). 529 The Applicant submits that: 7.3 The second of the small contingent of critics was Mr Dugina. He was the only one whose complaints were conveyed to Ms Gibbons (who then inaccurately conveyed them to Kathy Carr). His evidence was uncompelling and it is unreliable, especially given his collusion with Mr Jarman and Mr Finch, and the fact that he essentially reported to Mr Ivancic, rather than the Applicant. 7.31 Like Mr Jarman and Mr Finch, and as revealed in cross-examination, Mr Dugina sought to exaggerate the Applicant's negative qualities, under-emphasise the Applicant's positive qualities, and he had an agenda in that regard. 7.32 Mr Dugina's evidence should be given little weight. 530 The Respondents made no submissions concerning the credit of Mr Dugina. 531 My impression of Mr Dugina as a witness was that he had a score of some kind to settle with Mr Roohizadegan. He required prompting during cross-examination to accept that there was another side to the story. That was so including in respect of his allegation that Mr Roohizadegan had told him he might have to sacrifice his running if he did not meet his sales targets, against which stood his prompted concession under cross-examination that Mr Roohizadegan provided him with personal support for the Medibank marathons in which he had run (T853, lines 23-24). 532 However, while I am satisfied that his evidence was that of a person incapable of impartiality I reject that Mr Dugina was entirely indifferent to the truth. He did not dispute that he and two other witnesses (Timothy Finch and Oliver Jarman) who gave critical accounts of Mr Roohizadegan were "quite close friends" and that they had all discussed their opinion of Mr Roohizadegan when preparing their affidavits in these proceedings. Similarly although his affidavit was wholly negative in respect of Mr Roohizadegan, in cross-examination he accepted that a 2015 focus group report containing more positive feedback was an accurate assessment of Mr Roohizadegan's performance as a manager, and that the positive feedback he had himself provided about Mr Roohizadegan in a post-placement review had been accurate at the time it was given. 533 Mr Dugina also accepted that - contrary to the impression his affidavit might have conveyed -since Mr Roohizadegan had left TechnologyOne in May 2016 things had not gone smoothly in Melbourne. There had been multiple regional managers in that short time: initially Mr Ivancic on an acting basis, then Mike Inge, Mike Wilcox and, more recently, Sumal Karunanayake (T853, lines 26-47). 534 My overall impression however remained that notwithstanding such concessions, Mr Dugina implausibly resisted conceding that he was exaggerating Mr Roohizadegan's faults as his manager. As an example, he deposed in his affidavit that Mr Roohizadegan "would sometimes lie about people's sales figures and pump them up to make other sales team members feel like they weren't doing enough or they weren't working hard enough". In his affidavit he also referred to his having complained about Mr Roohizadegan's "compulsive lying". However, in cross-examination he accepted that it was not possible for Mr Roohizadegan to have lied about his team's sales figures because their figures were routinely placed on a projector at meetings for everyone to see. I reject that Mr Dugina's original account in this regard may be accepted on the basis that in re-examination he stated that on "one occasion" Mr Roohizadegan had told the sales team that they should "look up to Amit [Sion] and Simon [Dugina]" as they were achieving their sales targets, when in fact Mr Dugina knew that was not the case. In my view this aspect of Mr Dugina's evidence simply demonstrated his antagonism towards Mr Roohizadegan and his willingness to exaggerate the significance of what might be thought to be, at worst, a passing error. 535 I do not dismiss all of Mr Dugina's account. I accept that Mr Dugina resented Mr Roohizadegan's "micro-management". I accept that the instances about which he gave evidence entitle me to find that Mr Roohizadegan did employ that style of management. 536 However, I otherwise discount the weight I am entitled to give Mr Dugina's evidence regarding Mr Roohizadegan's management style by reason of his willingness to exaggerate and his manifest want of objectivity.

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Mr Finch 537 Mr Finch gave his evidence-in-chief by way of a (partially redacted) affidavit (Ex R52, CB379-383). His evidence is that he had left TechnologyOne's employment at the end of 2017. He was later employed by Salesforce. He had been employed with TechnologyOne for some 13 years. He had had the role of Pre-sales Consultant from May 2008 until July 2015, when he was promoted to Principal Pre-sales Consultant. He had always been based out of the Melbourne office. 538 His evidence as to Mr Roohizadegan's management style was that he had displayed a lot of trust in him, and had allowed him to run his own show. He had not micro-managed him (paragraph [13]). Generally however, he was a micro-manager: 15. My observation of the way that Behnam managed the sales team was that it was harsh, controlling and inappropriate. I understand that Behnam had to drive the sales team, but I considered that he would often over step the line and resort to bullying behaviour. … 18. I observed that Benham would undermine the sales team in front of others or talk negatively behind their backs. I was often appalled by Behnam's behaviour. For example, Amit Sion did very well under Behnam. However, he would talk about him behind his back and saying things like 'he's weak', 'he's United Nations', 'he doesn't want to confront people' and those sorts of things. Another example would be Tony Kishazi. Behnam used to tell me he was a horrible salesperson and I could be a much better salesperson. 19. Behnam used to regularly denigrate salespeople to me or even in groups when those people weren't there. It was common enough that it was never shocking when he made negative comments it was more like par for the course. It was just his personality. 539 He gave evidence that in early 2015 Mr Roohizadegan must have been told about what he had said about his own and others' concerns in a focus group, which was meant to be confidential. The next day Mr Roohizadegan had made a comment which in Mr Dugina's perception suggested that he did not take those focus groups seriously but did reflect what had been said (paragraphs [24]-[25]). He had raised concerns with Ms Gibbons that Mr Roohizadegan had come to know information given in confidential sessions. 540 In cross-examination, Mr Finch conceded that he had discussed his complaints with Mr Dugina and Mr Jarman and it was possible he had done so around the time he had prepared his affidavit. However, in re-examination he explained that he thought that unlikely as they had been specifically instructed not to do so. 541 He conceded that he himself had spoken negatively about TechnologyOne's Victorian sales team to Mr Roohizadegan: Mr Tracey: No. It's, in fact, the case that you spoke negatively about sales reps to Behnam, didn't you? Mr Finch: I would - Behnam and I would have conversations about the performance of the sales team and I - yes. Mr Tracey: You would say things like, "Your sales reps do not get it, Behnam. They do not understand what they are selling." You said that to him, didn't you? Mr Finch: Yes. Mr Tracey: And you would say, "These sales people do not know how to sell, but are also not willing or cannot learn the product that TechnologyOne is selling." You also said that, didn't you? Mr Finch: It's possible. Mr Tracey: And you had a focus, in particular, on Amit Sion as someone who you said was not doing his job properly; that's right, isn't it? Mr Finch: No. Mr Tracey: You criticised Mr Sion to Behnam, didn't you? Mr Finch: Yes. 542 He accepted that feedback about Mr Roohizadegan was not entirely negative. It had been mixed (T902, line 32). After denying recalling that there was a lot of positive feedback, he gave the following evidence when taken to the notes for the 2015 Victorian Sales Focus Group prepared by Ms Gibbons: Mr Tracey: Well, let's go through them. If you look at the first one: He provides encouragement and gets hands-on with opportunities. Is that true? Mr Finch: Some - yes and - yes and no. Mr Tracey: Continuing: He was very good in terms of helping with opportunities and closing deals. … ? Mr Finch: I would say that's fair, yes. Mr Tracey: Yes. And he's: Getting his time can be challenging, but he's very good at helping with opportunities and closing deals. … ? Mr Finch: Yes. Mr Tracey: He was seen by some people as a mentor? Mr Finch: Yes. Mr Tracey: Continuing: He taught people the world of sales and helped them to grow their market, expand in deals. … ? Mr Finch: Yes. Mr Tracey: And: There have been learnings that he has provided to people that have been invaluable. … ? Mr Finch: Yes. That's there, yes. Mr Tracey: Yes. He's great at his job? Mr Finch: I don't agree with that. Mr Tracey: Continuing: He can be authoritarian in his management style, but this may be a cultural thing. … ? Mr Finch: I agree with that. Mr Tracey: Continuing: …you just have to work around it. That was the way to deal with it? Mr Finch: Yes. Mr Tracey: And: People had an immense respect for him. … ? Mr Finch: No. Mr Tracey: Continuing: …an element of control in his management - referred to as the "Kevin Rudd" factor? Mr Finch: No. Mr Tracey: You don't agree with that? Mr Finch: No. Mr Tracey: Skip the next one which is about Richard: He is motivating and supportive. He can also be tough. That's true, isn't it? Mr Finch: I - sometimes yes, sometimes no. Mr Tracey: He's successful; that's right, isn't it? Mr Finch: Early on, yes. Mr Tracey: Yes. You say "early on". If I put it to you that he was a very successful manager throughout his employment with TechnologyOne, you don't disagree with that, do you? Mr Finch: I think in terms of the - I think the region was very successful. Mr Tracey: That's right and it was very successful under his management, wasn't it? Mr Finch: Yes. Mr Tracey: And he has a lot of good qualities; do you agree with that? Mr Finch: In - in his role; it's a - it's some yes, some no. Mr Tracey: And he tells it how it is, but that's accepted by people as being part and parcel of dealing with him? Mr Finch: Yes. Mr Tracey: Continuing: Some people get his attention and others don't. …? Mr Finch: Yes. Mr Tracey: Continuing: Great for some people and very patient. … ? Mr Finch: Say again. Mr Tracey: Continuing: He's great for some people and he's also very patient. … ? Mr Finch: I don't know about patient, but he was good for some people. Mr Tracey: Continuing: Everyone wanted his knowledge and assistance. … ? Mr Finch: I - I guess, as a manager, that was what he was there for. Mr Tracey: Yes: …although they weren't always a priority for him. Mr Tracey: I will put it this way: some people were prioritised over others, according to this, by Behnam? Mr Finch: Yes. I agree with that. Mr Tracey: And you've given evidence, as I understand it, that Behnam's management style towards you was very hands-off? Mr Finch: Yes. Mr Tracey: Yes. Whereas you witnessed that he was a much more detailed manager, I think you referred to "micro-management", in relation to other staff; is that right? Mr Finch: Yes. Mr Tracey: So you would agree from that that he dealt with staff differently, depending on who they were? Mr Finch: Yes. Mr Tracey: And he did that because he was trying to bring out the best in each of his staff members? Mr Finch: I guess that was his intention. 543 The Applicant submits that: 7.33 Mr Finch was called as the last of the disgruntled Victorian employees. His collusion with his friends, Mr Jarman and Mr Dugina, undermines his reliability and credibility. Like them, he had an agenda of seeking to criticise the Applicant. His evidence is unreliable and should be given little weight. 544 The Respondents advance no submission with respect to the credibility of Mr Finch. 545 I reject that Mr Finch's evidence should be afforded no weight on the basis that it was the product of collusion. Of Mr Jarman, Mr Dugina and Mr Finch, only Mr Dugina gave evidence of their having discussed their evidence at the time of preparing their respective affidavits. Mr Jarman denies that that took place, and Mr Finch gave evidence that he thought it unlikely. I would not draw an adverse conclusion in those circumstances. It is however clear that having regard to the terms of his cross-examination as I have set out above, Mr Finch was prepared to criticise Mr Roohizadegan for allegedly speaking adversely about his sales team: notwithstanding that he himself had made strong criticisms of them, behind their backs, to Mr Roohizadegan. 546 Given that in the end Mr Finch accepted that there were mixed views of Mr Roohizadegan's management style within the region, that Mr Roohizadegan had not micro-managed all of his staff, and that his intention in dealing with individuals differently had been to bring out the best in each of them, I decline to characterise his evidence as wholly unreliable. 547 However, I accept Mr Tracey's submission that Mr Finch commenced his evidence with an agenda of seeking to criticise the Applicant. I am satisfied that that agenda shaped his testimony and, for that reason, I should give only modest weight to his evidence insofar as it is adverse to Mr Roohizadegan.

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Mr Metcalfe 548 Mr Metcalfe gave his evidence-in-chief by way of a partially redacted affidavit (Ex R50, CB373-377). An annexure to that affidavit (an email chain between Mr Metcalfe, Mr Roohizadegan and others) was also tendered (Ex R51, CB4265A-4265B). Mr Metcalfe's evidence is that he is currently employed by TechnologyOne as State Manager Sales and Marketing for Tasmania. From 16 March 2015 to 8 February 2016 he had taken on the additional position of Regional Sales Manager for Victoria. He had spent three days a week in Victoria and two days in Tasmania. His affidavit states that the Regional Sales Manager managed the sales team and reported to Mr Roohizadegan (paragraph [2]). 549 He had been appointed to the Regional Sales Manager position by Mr Harwood. He explained the circumstances at the time of his appointment as follows: 9. Martin Harwood was the Operating Officer at that time and it was Martin who had placed me into the Victorian Regional Sales Manager role. Martin set me the objective to bring stability to the Victorian sales team. I can't recall the specific numbers but sales team turnover in Victoria was extremely high. There were only six people in the Victorian team at the time of my appointment to the Victorian Regional Sales Manager role but there should have been nine. There had been resignations and no ability to satisfactorily fill the availabilities. 550 He was told by Mr Harwood that the business was having trouble recruiting someone for the position, and there had been no internal applications (paragraph [3]). 551 Mr Metcalfe knew that Mr Roohizadegan was not happy with him working in the Victorian office. There was a lengthy delay in confirming his appointment, which Mr Metcalfe attributed to delaying tactics on Mr Roohizadegan's part and his concern not to have someone on his "patch" who could see what he was doing (paragraph [8]). He described the culture he discovered in Victoria as follows: 5. I could best describe the culture in the Victorian TechnologyOne office as dreadful. There was no chatter in the office, no-one was interacting with each other and this concerned me. 6. I observed that there was invisible line across the office where staff did not cross because they were sales people and Behnam was the boss. In other offices, the sales people and their associates (pre-sales, PCSMs, consultants, consulting director) would freely interact with stand-up ad hoc conversations, bouncing ideas etc. The atmosphere in the Victorian office was that sales staff sat quietly at their desks with no 'banter' or chat. 7. The Human Resources (HR) department conducted focus groups with teams without their manager being present, to discuss how things could be improved. A number of Victorian office team members told me that they were nervous about saying anything in the focus group because they felt that Joanne and Amit would report what they said back to Behnam and that would have negative consequences for the Victorian sales team. I believe it was Simon Dugina who made the comment - others did too but I can't recall names. Joanne was Benham's personal assistant and Amit was Benham's favourite sales person. 552 During his time as the Victorian Regional Sales Manager, he had had great difficulty recruiting people to the team. He had heard feedback from candidates that they had heard that Mr Roohizadegan was difficult to work with. When he had put candidates forward, Mr Roohizadegan had typically rejected them (paragraph [16]). 553 Mr Metcalfe's evidence is that shortly after he had commenced in Melbourne he had formed the view that there were performance issues with two of the sales staff, Mr Loler and Mr Tsalkos, who he considered were not suitable to remain at TechnologyOne. He had discussed his observations with Mr Roohizadegan, who had given him clear verbal instructions "to get rid of them". He had been surprised to receive an email from Mr Roohizadegan on 18 June 2015 stating he did not know what was going on with respect to Mr Tsalkos, and referring to him as being part of a "fifth column" (Ex R51, CB4265A-4265B). He understood that to mean that Mr Roohizadegan saw him as someone who was causing destruction from within. He had been offended, and had taken Mr Roohizadegan to task about the use of that expression. Mr Roohizadegan had responded to the effect that he had not meant to cause offence by the use of that term. English was not his first language. Mr Metcalfe had not believed him. Mr Roohizadegan had used that excuse before. In his experience, Mr Roohizadegan spoke and wrote English very well (paragraphs [10]-[15]). 554 He had been very concerned at the effect of Mr Roohizadegan's behaviour on the Victorian business and had asked Mr Harwood "to do something about the situation". He had expressed the view that for the good of the business Mr Harwood should consider a "different management approach" towards Mr Roohizadegan (paragraph [19]). In his view Mr Roohizadegan had done a good job in building the business but "he was not the right person to expand the Victorian business" because he could not delegate responsibility (paragraph [20]). 555 In cross-examination, Mr Metcalfe's evidence was that he did not know that Mr David van den Brule had been an internal candidate for his position as Regional Sales Manager for Victoria that Mr Harwood had offered him. Nor did he know that Jesse Edwards and Mr Pantano had both applied for the role. He had understood that there were no such candidates because that was what Mr Harwood had told him (T876, line 14). 556 He had not known that Mr Roohizadegan had wanted Mr David MacDonald, Mr van den Brule or Mr Pantano to take the role. He accepted that Mr Roohizadegan may have wanted someone full-time rather than part-time (T876, line 40), but nonetheless asserted that Mr Roohizadegan "got the best person for the job" (T877, line 41). 557 He made that claim notwithstanding his concession that his own evidence was that licence fee growth in Tasmania showed a seesaw history, with a number of years of negative growth (T878-879). He did not accept that Mr Roohizadegan might have wanted somebody who had a better performance record in the role. 558 Mr Metcalfe accepted that his having decided that two of the sales staff, Mr Mark Loler and Mr Con Tsalkos, were not suitable to remain was not consistent with the objective of bringing stability to the Victorian sales team (T882, lines 5-15). However, he maintained that neither had the attributes and skills for the job (T882, line 24). Cross-examined as to his assertion that Mr Roohizadegan had verbally instructed him "to get rid of them", he gave the following evidence: Mr Minson: And you say that Behnam gave you verbal instructions to get rid of them. He never told you to get rid of them, did he? Mr Metcalfe: No. No. He very clearly told me to get rid of them. Mr Minson: Well, he actually told you to put them on performance management, didn't he? Mr Metcalfe: No. Mr Minson: He never told you to put them on performance management? Mr Metcalfe: No. He told me to get rid of them. Mr Minson: So he never told you - and by - so you say his words were "get rid of them"? Mr Metcalfe: Yes. Mr Minson: And by that you took him to mean terminate their employment? Mr Metcalfe: Yes. Mr Minson: And he never told you to put Mark on performance management? Mr Metcalfe: Not at all to my memory, no. Mr Minson: And he didn't tell you that about Con? Mr Metcalfe: No. Mr Minson: Well, can I take you to volume 8 of the court book at page 4230 - 4230. You see about halfway down the page there there's a date 25 May 2015 at 12.13 am? Mr Metcalfe: Yes, see it. Mr Minson: Do you recognise that as an email from Behnam to you? Mr Metcalfe: Mmm. Mr Minson: Do you see in the third paragraph it says: And as for Mark you need to start putting him on performance management. This may assist him to improve. …? Mr Metcalfe: Yes, I see that. Mr Minson: Do you stand by your evidence that you just gave that Behnam never told you to put Mark on a performance management? Mr Metcalfe: As I said to you, not to my recollection. But the timing of this and the other conversations that took place I - I can't tell you which one occurred first. 559 It was later established that Mr Roohizadegan's email directing Mr Metcalfe to put "Mark [Loler] on a performance management plan which might assist him to improve" (Ex A32, CB4230) was sent in May 2015, and thus well before 18 June 2015: the date on which Mr Roohizadegan had complained about not knowing what was going on. To this, Mr Metcalfe responded: "I do not take an email at a quarter past midnight as a firm instruction…" (T884, lines 18-19). 560 The following exchange reflects the tenor of Mr Metcalfe's evidence in cross-examination: Mr Minson: So he's telling you in May 2015, isn't he, (a) to put him on performance management, and (b) that he at least is doing that with a view to assisting to improve, isn't he? Mr Metcalfe: Yes. Mr Minson: And that's contrary to the evidence you gave just before I took you to this document, isn't it? Mr Metcalfe: No, I think there's three weeks have taken place between that email and … Mr Minson: The question I put to you was he never told you to put Mark on performance management and you said, "Yes"? Mr Metcalfe: I said to my recollection he did not ask me to put him on performance management … Mr Minson: So is …? Mr Metcalfe: … and I do not take an email at a quarter past midnight as a firm instruction on it. I would have had a follow up conversation with him. And in the three weeks Mr Minson: Well - well …? Mr Metcalfe: … that went on since that email it was made very clear … Mr Minson: … your follow up email is actually just above. You respond at 2.21 in the morning two hours later saying, "Understand. Will do". That's your email, isn't it? Mr Metcalfe: Yes. Mr Minson: And Behnam responds to you the following morning at - this is the same day - at 8.52 am, he says, "Thanks, Richard"? Mr Metcalfe: Mmm. Mr Minson: That's not a firm instruction, is it? Mr Metcalfe: I think your - things move quite - quite a lot and I don't know that … Mr Minson: Well, a question …? Mr Metcalfe: … that exchange is - would have been the final and definitive set of conversations that we had about that. Mr Minson: What exchange? Mr Metcalfe: This email exchange. 561 In re-examination Mr Metcalfe explained there had been subsequent discussions about going down either the performance management route or the deed of settlement route. Mr Roohizadegan had been "well across exactly those conversations" (T869, lines 28-36). 562 Mr Metcalfe however accepted that some decisions were made by him and Mr Harwood without consulting Mr Roohizadegan (T886, lines 10-15). 563 As to who he had regarded as his "boss", Mr Metcalfe gave the following evidence: Mr Minson: You called Martin [Harwood] - you say that you typically called Martin from the Melbourne Airport as you were flying home back to Hobart; is that right? Mr Metcalfe: Most weeks, I would - I would check in with him, yes. He was my boss. Mr Minson: Well, Behnam was your boss, wasn't he? Mr Metcalfe: No. Sorry, let's be clear. So my direct reporting line was to Martin and I was - for the period of 11 months, I was - yes, look, I was working for Behnam … Mr Minson: Well, you had …? Mr Metcalfe: … so for those three days a week … Mr Minson: You had two roles, didn't you? Mr Metcalfe: Yes. Correct. Mr Minson: In your role as manager for Tasmania, you reported to Martin, but in your role as regional sales manager for Victoria, your direct report was Behnam, wasn't it? Mr Metcalfe: Yes. Yes. I'm - yes, happy with that. Mr Minson: But you did actually, as you've just said, see Martin as your real boss, didn't you, in both those roles? Mr Metcalfe: I was very respectful of Behnam, very respectful of Behnam. … Mr Minson: But you were calling Martin, weren't you, when you had had your few days in Victoria to update him on the situation in Victoria, weren't you? Mr Metcalfe: Yes. Periodically, yes. Mr Minson: Well, you say "typically". Was it typically or periodically? Typically, as in each week …? Mr Metcalfe: Well, how … Mr Minson: … when you fly home, each week when you fly home to Hobart? Mr Metcalfe: I wouldn't say it was every week, but regularly, yes. Every week, every couple of weeks, I - I - I don't think it would have been every single week. 564 Mr Metcalfe denied giving misleading evidence that he had liked Mr Roohizadegan, notwithstanding his having sent a note to Ms Gibbons on 16 February 2016 saying "I'll try not to get squiffy and say something nasty about Benham" (Ex A76, CB4978). He did not recall telling Ms Gibbons that he had felt undermined by Mr Roohizadegan (T891, lines 27-40). 565 In cross-examination, notwithstanding the more positive views that had been expressed in staff focus groups he remained unshaken in his evidence that the culture in Victoria had been "dreadful". When confronted in cross-examination with evidence from a focus group conducted in the first half of 2015, to the extent that it suggested otherwise his explanation was that his joining the Victorian region in March 2015 had improved the survey results. He had had a positive impact on the culture. 566 The Applicant submits that: 7.34 Mr Metcalfe's oral evidence revealed him to be a partisan critic of the Applicant. He did, however, shed some light on the matter of licence fee revenue growth and how it varied from year to year in each region including his region of Tasmania. In this respect, his evidence undermined the Respondents' attempt to use two years of reduced licence fee growth in the Victorian region as being indicative of some downward trend which justified the Applicant's dismissal. 567 The Respondents make no submissions with respect to the credit of Mr Metcalfe. 568 Taken as a whole, the evidence of Mr Metcalfe shows he lacked self-awareness. It may be accepted that Mr Metcalfe did not know that Mr Harwood had engineered his appointment against Mr Roohizadegan's wishes, but his evidence about who he had viewed to be his "boss" and his weekly reporting to Mr Harwood demonstrates a complete lack of insight into why he might have come to have been seen by Mr Roohizadegan as working for Mr Harwood rather than in his interests and thus acting as a "fifth column". That said, I accept that Mr Metcalfe was understandably offended by Mr Roohizadegan's use of that expression: notwithstanding that on my reading of Mr Roohizadegan's email the "sting" of his observation (assuming it was not merely an infelicitous choice of words by a person for whom English was a second language) was not really aimed at him. It may be better understood as Mr Roohizadegan (I accept in a manner likely to be viewed as provocative) pushing back against Mr Harwood's making decisions about his region which he had opposed without consulting him. 569 I specifically reject Mr Metcalfe's evidence that Mr Roohizadegan gave him oral instructions to "get rid of" both Mr Loler and Mr Tsalkos. That is entirely inconsistent with the established documentary record, at least in respect of Mr Loler, which establishes that Mr Roohizadegan had instructed Mr Metcalfe to put "Mark" [Loler] on a performance management plan to give him a chance to improve. Having rejected his credit in that regard, I do not accept Mr Metcalfe's evidence in re-examination that Mr Roohizadegan had subsequently been well across the conversations he had (I infer with Mr Harwood) prior to Mr Roohizadegan sending his email of 15 June 2015 (Ex R51, CB4265A-4265B). I am satisfied that Mr Metcalfe made those arrangements with Mr Harwood leaving Mr Roohizadegan no choice but ultimately to accept the outcome at which they had arrived. 570 I also reject Mr Metcalfe's evidence that his arrival in Melbourne in March 2015 explained the positive findings of the focus group in respect of which he was cross-examined. The focus group document (described as a quantitative survey conducted by email) had Mr Roohizadegan as its subject. It had nothing to do with Mr Metcalfe. 571 Mr Metcalfe's evidence that he "really liked" Mr Roohizadegan not only must be rejected: it also diminishes any residual credit to which his evidence might be entitled. In re-examination Mr Metcalfe sought to maintain that the words he used in his message to Ms Gibbons might have been merely "banter" of a kind that he would regularly exchange with her (T897, lines 1-9). If it were banter, it nonetheless clearly revealed his true state of mind. His evidence that he had really liked Mr Roohizadegan is wholly implausible. 572 It is sufficient that I record, having regard to the above considerations, that I am satisfied that Mr Metcalfe was a highly unimpressive witness and not one whose evidence I am entitled to accept in preference to that given by Mr Roohizadegan unless corroborated by contemporaneous documents or by other evidence which the Court accepts.

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Mr Irwin 573 Mr Irwin gave his evidence-in-chief principally by affidavit (Ex R54, CB364-366). His evidence is that he had been employed by TechnologyOne as State Manager for Western Australia from March 2011 until October 2018. He is now General Manager of Strategic Sales with that company. 574 His evidence is that on 12 May 2016 he and Mr MacDonald were walking out of a room (I infer in Brisbane during TechnologyOne's State Managers' meeting of that date). Mr Roohizadegan had called over to Mr MacDonald. Mr MacDonald had gone over to him - about 6 to 10 feet away - and they had spoken for about 20 seconds. He had not heard what was said. Whatever was said had not been said loudly or he would have heard it. He had not asked Mr Roohizadegan what it had all been about. 575 He had then gone to Mr Pye's office with Mr MacDonald to discuss some matters with Mr Pye. He had seen Mr Roohizadegan come in when he was about to leave. He had not heard anything about which they spoke. 576 Mr Roohizadegan had telephoned him on Sunday 15 May 2016. Mr Irwin's evidence is that the effect of that conversation was that Mr Roohizadegan was trying to get him to agree with his version of his interaction with Mr MacDonald, including that he must have heard Mr MacDonald say "Screw you Benham" in the conversation he had witnessed. He had told Mr Roohizadegan that there were processes for dealing with issues like that and he should speak to HR. His impression of that phone call had been that Mr Roohizadegan was playing the victim and trying to get his support for a complaint against Mr MacDonald. 577 He further recalls having a second conversation with Mr Roohizadegan on the evening of 17 May, the day before Mr Roohizadegan was dismissed: 8. Benham then rang me the night before he was dismissed, on 17 May 2016. During this call, Behnam said words to the effect of: (a) he had some communication from Adrian Di Marco and was being asked to come up to Head Quarters (HQ); and (b) he was happy about going up to HQ and he thought that everything between him and Stuart was going to be resolved. 9. The impression I got from the phone call was that Benham thought they were going to move on from this issue following the meeting. 578 In cross-examination, he accepted that on 18 April 2016 he had sent an email to Mr Roohizadegan congratulating him on Victoria being the top region for sales for the half year. 579 He remained insistent that he had not heard any of the words spoken as between Mr MacDonald and Mr Roohizadegan on 12 May 2016. He accepted that he had had a house, mortgage and a sick child in 2016 but denied having upbraided Mr Roohizadegan for involving him in his complaint on those bases: Mr Minson: And he said to you, "I've given your name to TechnologyOne as my witness". Is that right? Mr Irwin: No. Mr Minson: And you said to him, "Why have you done that? Why did you bring me into it? Why did you bring me into your complaint?" didn't you? Mr Irwin: No. Mr Minson: And you said to him that you've got a new house? Mr Irwin: No. Mr Minson: That you've got a large mortgage? Mr Irwin: No. Mr Minson: That you have a sick child? Mr Irwin: No. Mr Minson: That you - if you mention his name again, he would deny - you would deny that you ever heard Stuart saying, "Screw you"? Mr Irwin: No. Mr Minson: Nothing further, your Honour. 580 The Applicant submits that: 7.35 Mr Irwin's evidence was direct and in fact he was one of the Respondents' most impressive witnesses. It is submitted, however, that he was protecting his position as an employee of the First Respondent, like he did when he failed to back up the Applicant in relation to matters Mr Irwin had witnessed. 7.36. The Court should accordingly prefer the Applicant's evidence to Mr Irwin's evidence where that evidence conflicts, because there is a strong basis to accept the Applicant as witness of truth (for the reasons set out above), and Mr Irwin had a motive for not being accurate in his recollection. 581 The Respondents advance no submissions with respect to the credit of Mr Irwin. 582 I need not address the Applicant's submissions as to motive. 583 It is sufficient to observe that Mr Irwin's evidence in cross-examination was entirely to the effect that he had heard nothing of what was said during the exchange between Mr MacDonald and Mr Roohizadegan on 12 May 2016. Accepting that evidence does not undermine the Applicant's case. His failure to hear what was said provides no basis for the Court to revisit its earlier expressed conclusion that it should prefer Mr Roohizadegan's account, supported by his contemporaneous notes in that regard, over that given by Mr MacDonald. 584 While it might seem curious that Mr Irwin's affidavit does not suggest that he told Mr Roohizadegan during their phone call of 15 May 2016 that he had not heard what had been said by Mr MacDonald at that time, given he was not cross-examined on the premise that his omission to include that matter in his statement was significant I decline to draw an adverse conclusion with respect to his credit in that regard.

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Mr Orchard 585 Mr Orchard gave his evidence-in-chief principally by affidavit (Ex R53, CB360-362). His evidence is that he had commenced his employment with TechnologyOne as Financial Controller in 1994 when it was still a quite small company. He had been appointed Chief Financial Officer in 1999 and had remained in that position until December 2009. He had also served as Company Secretary from 10 August 1995 until he resigned on 8 July 2011. There is a lacuna in the evidence but I infer he was subsequently re-employed by TechnologyOne and, as at the time of his giving evidence, held the role of National Finance and Commercial Manager. 586 His evidence is that between 2006 and the end of 2009 he had interacted with Mr Roohizadegan a couple of times a month in his role as Chief Financial Officer. His recollection of Mr Roohizadegan was that he was extremely driven by remuneration and self-promotion. A common theme of his phone calls was that he thought he should be earning more money. 587 His evidence was that he had no recall of any specific discussions with Mr Roohizadegan regarding incentive payments for SMS products. However, he was confident he would not have said to Mr Roohizadegan that he would arrange for him to receive an incentive payment for a SMS deal. That was because the SMS products were not incorporated into the State Managers' remuneration and incentive package. He would therefore have had to seek approval from either Mr Chung or Mr Di Marco before making such an arrangement, and he had no recollection of ever having done so. 588 As to the SMS products, he gave the following evidence: 9. … the SMS product had only been developed in the early 2000's. The SMS product was starkly different from the TechnologyOne Financials product because SMS was a large and complex product that required specialist knowledge of the higher education sector to sell and implement. As such, the personnel who were responsible for selling the SMS product were a National team, based in Brisbane, managed centrally by head office. 10. In 2009, Theresa Murphy headed up the SMS team in Brisbane. The only expectation from State Managers, like Benham, was for them to create introductions between existing clients and the SMS team where appropriate. For example, if the Victorian team had previously sold a financials product to a University, then Benham was expected to make an introduction if it would create an opportunity for the SMS team to sell the SMS product to that customer. However, this was the extent of Benham's (or any other State Manager's) involvement in the SMS deal. 11. Benham would have been unlikely to be involved in the product scoping, demonstrations, pre-sales or contract negotiations for the SMS product deals because those functions were handled by the central SMS team, in conjunction with the risk management committee. Therefore, there were no commissions or incentives payable to Behnam, or any other Regional/State Manager, for SMS deals, as they played no part in the contract or implementation. 589 In cross-examination, Mr Orchard conceded it was possible that Mr Roohizadegan had raised with him his entitlement to incentives on sales of SMS products including in respect of the implementation of those services at Melbourne University: Mr Tracey: Now, you say in paragraph 6 as well that you recall a common theme of Benham's phone calls was that he thought he should earn more money. Do you see that? Mr Orchard: Yes. Mr Tracey: And that included him referring to incentives based upon student management services? Mr Orchard: No, I don't recall that being the reason. Mr Tracey: You say in paragraph 7 under the heading Student Management Services that you don't recall specific discussions with Behnam about - or regarding incentive payments for SMS products, but you would agree with me that it's possible that there were such discussions? Mr Orchard: It is possible, but I don't recall any. Mr Tracey: And the - because what - I withdraw that. Because what Behnam's evidence has been is that between 2006 and 2009, he raised concerns with you about SMS revenue not being put into business unit 03. Do you recall that? Mr Orchard: No, I don't. Mr Tracey: Possible that he raised those concerns with you? Mr Orchard: Possibility, yes. Mr Tracey: And he also has given evidence that he raised a particular concern or a specific concern about revenue generated from the implementation of services at Melbourne University. Do you recall that? Mr Orchard: No, I don't. Mr Tracey: He says that he raised with you the matter of whether the revenue from the implementation of services at Melbourne University had not been put into business unit 03. Does that ring a bell? Mr Orchard: No, it doesn't. Mr Tracey: Is it possible that he raised that? Mr Orchard: It's possible. 590 Mr Orchard accepted that creating an introduction between a client and a potential client of TechnologyOne for SMS services was an important first step for a Regional Manager to complete (T914, lines 1-36). He conceded that Mr Roohizadegan was involved in those sorts of introductions. He could not gainsay that Mr Roohizadegan may have been involved in product scoping, demonstrations and contract negotiations regarding SMS products with Melbourne University (T914, line 37-T915, line 9). 591 He conceded that being involved in the making of a contract or its implementation was not a requirement of Mr Roohizadegan's KPIs or his entitlement to remuneration, although he did not believe that SMS revenue went to "Business Unit 03". If that was not correct, then his evidence was that it would not matter if Mr Roohizadegan had or had not played a part in the transactions leading to those sales (T914, lines 23-34). 592 In re-examination Mr Orchard gave the following evidence: Dr Spry: Mr Orchard, you were asked some questions about Mr Roohizadegan raising with you incentives for Melbourne University; do you recall that question? You said, well, it was possibly raised with you? Mr Orchard: But I have no recollection of it. Dr Spry: And had he raised it with you, what could you have done? Would you have been in a position to - well, do what? What could you have done if he had raised it with you? Mr Orchard: My action would have been to discuss it with my - the person that I reported to because it would have been outside the scope of the - the net profit definition as well as the - that it related to a product that wasn't under the domain of the Victorian business unit, and I would have discussed it with my - the person that I reported to and - and possibly others. Dr Spry: And who did you report to at that time? Mr Orchard: Edward Chung. Dr Spry: And when you say it wasn't within the domain, why do you say that, of business unit 03? Mr Orchard: Business unit 03 was largely responsible for the sale and implementation of the financials products which was the original product started by TechnologyOne. Student Management Systems was run as a national product, and there was a central team based in Brisbane, and they were responsible for all facets including sales, consulting and support. 593 The Court then sought to clarify the import of that evidence: His Honour: You've referred to SMS as being outside the domain of business unit 03. And you've explained that in part, as I understand it, by saying that it was because the generation of sales and the like was [the] responsibility of the Brisbane office. But as I apprehend the evidence in this proceeding there were also other - I think Dr Spry has described them as lines that were run out of Brisbane. In evidence they've been referred to, I think, as verticals. Dr Spry: Verticals. Yes. His Honour: Verticals which were run out of Brisbane and sold by Brisbane, but as I apprehend, it attributed to the state-based regions. Now, that's as I apprehend the evidence, but I'm subject to correction? Mr Orchard: Would you like me to … His Honour: Is that correct? I mean, is that understanding correct or can …? Mr Orchard: Yes. When those words were being used a few moments ago what - what's my recollection is that it might have been one product, but there were three business units within that product. And so, student management, as the example, would have had a consulting business unit, a research and development unit, and the core sales unit. So it didn't mean that one product meant one business unit. And it's also not the same as a geographical business unit because the - the sites that were implemented for student management were all around Australia. So it wasn't - it wasn't a Brisbane thing or a Queensland thing; it was a - it was managed at the corporate office in Brisbane. … His Honour: Was there any other excluded product - sorry, was there any other product which was centrally managed, if I could put it that way? You said it wasn't exclusively out of Brisbane, but it was …? Mr Orchard: Another example I can recall is what - it was originally called project services, and I think … His Honour: Yes, I think that's exactly - project services? Mr Orchard: And it then became custom developments, I think. His Honour: Yes? Mr Orchard: So that would be another example where it was a team run centrally, but they did have projects in different locations around Australia. His Honour: So with project services, was the revenue attributable to regions, or was that not …? Mr Orchard: No, that would have all … His Honour: No? Mr Orchard: … been retained by them, albeit with probably a small percentage going to fund the corporate teams. 594 The Applicant submits that: 7.37 Mr Orchard's evidence during cross-examination is of some use in understanding the matter of how the Applicant was remunerated and his role as a regional manager in supporting the SMS product, Mr Orchard also conceded that the Applicant's raising with Mr Orchard of his entitlement to incentives based upon SMS revenue. Mr Orchard's evidence is otherwise of little weight or relevance in the proceeding. 595 The Respondents advanced no submissions with respect to the credit of Mr Orchard. 596 I am satisfied that Mr Orchard was a credible witness. The concessions he made in cross-examination, including that Mr Roohizadegan may have raised with him his entitlement to incentives with respect to SMS services, enhance rather than detract from his credit. Subject to the correctness or otherwise of the assumptions he had made regarding Mr Roohizadegan's entitlement to incentives for particular sales achieved by TechnologyOne in Victoria, I accept his evidence.

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Mr Arnott 597 Mr Arnott gave his evidence-in-chief by way of an affidavit (Ex R55, CB368-371). His evidence is that he joined TechnologyOne in January 2009 as the Research and Development Manager for SMS. In February 2011, he had become SMS General Manager. In February 2017, he had become TechnologyOne's Sales Director for Education. His evidence with respect to the history of the SMS product was as follows: 6. When I first joined TechnologyOne in 2009, the SMS product was sold by a separate business unit which I ran. The SMS business unit had its own profit and loss statement (P&L) and it was centralised rather than operating through the regions. It had its own sales team, consulting team as well as research and development team. 7. The reason for this separation from the other products which were run through regional P&Ls, was because the SMS product is unique. The SMS product is targeted to the education sector and effective engagement in that sector requires specific knowledge to generate sales, which the regional sales teams did not have until recently. 8. In 2009, the regions were not involved in the SMS product sales whatsoever because they were not trained in how to sell the SMS product. Whilst there were SMS consultants who were based in the regions to roll out the software when the SMS business unit won a deal, those consultants continued to report back to the SMS business unit and not to the Regional Manager. For example, there were a few SMS consultants who were based in Victoria because a number of the bigger universities are in that region however, all SMS consultants reported to Liam MacNamara, Consulting Director, who reported to myself. 9. In October 2010, TechnologyOne restructured the incentives for SMS product sales so that the sales team in the regions started to get commission on SMS product deals that were won by my team in their regions. 10. I recall that, for the first few years, this did not change the way that the regions contributed to those SMS product deals. This is because the SMS consultants and pre-sales team members who reported to the SMS business unit continued to run the SMS product sales from engagement through to demonstration with very little involvement, if any, from the regional sales teams and the salaries for these team members continued to be costed to the SMS business unit's P&L. 11. After 1 October 2016, an additional royalty came out of the SMS business unit's P&L on a monthly basis for the regional sales teams incentives even though they did not do any of the work to win the SMS product deals. I recall feeling disgruntled by this at the time because my incentive payments were reduced because there was an extra cost running through the SMS business unit's P&L. This is because my incentive was based on the profit of the SMS business unit. 12. From in or around 2014, the SMS business unit engaged a lot more with the regional sales teams to ensure that they were trained to sell the SMS product and the larger regions now have full time team members who only sell education products. 598 His evidence also included some observations on Mr Roohizadegan's involvement in SMS deals. He stated that Mr Roohizadegan had played no part in securing a 2009 deal with Victoria TAFE. When Mr Roohizadegan had later become involved, his inappropriate negotiating tactics (writing a number on the back of a piece of paper which he had slid across the table) had lost TechnologyOne an opportunity in 2014 to upsell more software to that client (paragraphs [13]-[15]). He had considered Mr Roohizadegan's behaviour to have been unprofessional and embarrassing because he "did not understand the product we were selling well enough to effectively engage with the education customers". He also did not seem to understand that those customers had clear procurement processes they had to follow. He had often hassled them inappropriately (paragraph [16]). 599 In cross-examination Mr Arnott conceded that the Electronic Contents Management system offered by TechnologyOne was, similarly to SMS, run through the Brisbane head office and not through the regions: and that it had its own profit and loss account in TechnologyOne's books. 600 He conceded the same was the case with respect to TechnologyOne's Property and Rating product and its Assets Management System. 601 He accepted that he did not know whether Mr Roohizadegan had been paid an incentive in respect of sales of those products, but conceded: All our - all regional managers get some incentive in - from the sales of products, but student management wasn't the case back then - back then as I've set out in my affidavit. 602 His evidence was then as follows: Mr Tracey: So you say that SMS was not like other products because it targeted a particular sector, namely, education; is that your evidence? Mr Arnott: It targeted a specific area of unique knowledge and skill set that you required. Yes. Mr Tracey: And in that sense it's absolutely no different, is it, from property and rating which targeted the unique area of Local Government? Mr Arnott: There's a lot of - well, you could say that. 603 However, he resisted accepting that SMS was a competing product with CRM: Mr Tracey: So Mr Arnott, customer relationship management is another product of TechnologyOne, is that right, known as CRM? Mr Arnott: Mmm. Mr Tracey: And you agree that CRM is a competing product with SMS? Mr Arnott: No. Mr Tracey: Well, I put it to you it is in that CRM if purchased by a tertiary education institution, that institution would not often need to purchase the SMS product? Mr Arnott: Incorrect. Mr Tracey: Because CRM would do things that that institution would need? Mr Arnott: CRM plays a place in any organisation including the university, but it - it does not - it's not an SMS. It integrates to a SMS. Mr Tracey: Well, Mr Davey's evidence - do you know Nick Davey? He was previous GM for CRM. For CRM. Yes? Mr Arnott: Yes. Mr Tracey: His evidence is that CRM was a competing product with SMS? Mr Arnott: That's incorrect. Mr Tracey: I suggest to you that the only thing that seems to make SMS unique, to use your word, is that SMS is larger some other products of TechnologyOne; that's what you're saying, isn't it? Mr Arnott: No. It takes many years to understand SMS. It takes years to train consultants and sales staff on the solution, so it is different to other solutions. The sheer size of it, the uniqueness of it that is why … Mr Tracey: Like other products it's sold throughout all of the geographical regions of TechnologyOne? Mr Arnott: Correct. Mr Tracey: Sold to customers that have their head offices in those geographical regions? Mr Arnott: Sorry, can you repeat that? Mr Tracey: It's sold to customers that have their head offices in those geographical regions? Mr Arnott: Yes. So universities are in different states. Yes. Mr Tracey: And there's in fact quite a number of universities in Victoria which are customers of the SMS product? Mr Arnott: Correct. 604 He conceded that he could not be confident that it had been Mr Roohizadegan's conduct that had caused TechnologyOne to lose the upgrade deal with Victoria TAFE: Mr Tracey: I'm asking you to give honest evidence to the court about why you think the deal fell through? Mr Arnott: I - at the end of the day, they - I mean, the customer goes away and we weren't explained exactly why we lost the deal, okay. The price … Mr Tracey: At the end of the day, you have absolutely no idea, do you? Mr Arnott: Well, the price could be wrong, I'm not sure … 605 In re-examination, Mr Arnott expanded on why SMS was a unique product: Dr Spry: Now, you were asked some questions about CRM and SMS, and you were saying SMS is unique. Just in relation to CRM, how is SMS different to CRM? Mr Arnott: So Student Management is a records system for students in the curriculum. It manages the lifecycle of the student. The CRM is a Customer Relationship Management tool, and most universities and TAFEs have those - actually all of them probably do - and they integrate into and SMS. So CRM is more around your marketing, about external engagement which then feed into the SMS. Dr Spry: And you've said SMS was a unique product, how is it unique? Mr Arnott: It's unique in the respect that it is - it's a large product. It - it's not - there's five vendors across the globe that actually build the Student Management System. There's not many that build a Student Management System that's enterprise level. It - it's unique in the fact that it's very large from the first engagement of a student all the way through the lifecycle of that student while they're at the university. Everything to do with their results, their engagement, their day-to-day assessment is maintained by the student system. Dr Spry: And where does CRM - you were saying it fits in - how does - or universities can have CRM as well, that product, how does it fit in or relate to SMS? Mr Arnott: So the CRM will engage if it's doing any marketing around alumni or engagements with prospective students or items like that and typically run by the marketing teams within universities or TAFEs. That information is fed back into the student system once that student maybe applies, enrols into the university or TAFE and then Student Management System looks after it from that point. 606 I then permitted Mr Tracey to further cross-examine regarding that evidence. It is not necessary to set out the quite lengthy discussion that followed. While initially resistant, Mr Arnott ultimately conceded that TechnologyOne's CRM product could be used as an alternative to its SMS product in order to manage alumni (T937, lines 31-34). 607 The Applicant submits that: 7.47. … Mr Arnott initially denied that Customer Relationship Management (CRM), a product for which Mr Roohizadegan received incentive payments, was a competing product of SMS (T929 at 30 to 44). However, during re-examination Mr Arnott agreed that CRM could be used for alumni of tertiary institutions (T934 at 18 to 20). Notwithstanding this, Mr Arnott repeatedly failed to admit to the Court, in further cross-examination, that CRM and SMS were competing products for, at the very least, alumni of tertiary institutions (T935 at 4 to 47; T936 ay 1 to 46; T937 at 1 to 32). Accordingly, the Court should take the view that Mr Arnott was an unsatisfactory witness and that he was unreliable. 7.48. In so far as the Respondents rely upon Mr Arnott to assist them in their defence to the contract case, the Court should give his evidence little weight. He could not even accept simple and what should have been uncontroversial propositions that were put to him. This makes him very unreliable and unconvincing as a witness. 608 The Respondents advance no submissions with respect to the credit of Mr Arnott. 609 The impression I formed of Mr Arnott was that he was - understandably - genuinely very proud of TechnologyOne's SMS product. As a result however he appeared very reluctant to accept that from a commercial perspective, notwithstanding SMS's many virtues, it was just another product offered by TechnologyOne in the marketplace. Only after extensive pressure in cross-examination did he accept that "[t]he CRM product of TechnologyOne can be used as an alternative to the SMS product of TechnologyOne in order to manage [alumni]" (T937, lines 32-34). 610 His evidence that SMS was different from other products offered by TechnologyOne because it was run out of Brisbane and had its own profit and loss account did not survive cross-examination. 611 With respect to his allegation regarding Mr Roohizadegan's responsibility for losing a sale prospect, I accept Mr Arnott's evidence that he had been unimpressed by Mr Roohizadegan pushing a note with a figure on it across the table to his negotiating counterpart. I infer that Mr Arnott had thought that to be crass. I note however that Mr Arnott ultimately conceded that the software's price, rather than the manner of the conveyance of that price to the client, may well have been the decisive factor in that particular sale not being made. 612 Mr Arnott had good reason not to have welcomed Mr Roohizadegan's involvement in SMS. Mr Arnott's evidence-in-chief was that once TechnologyOne had changed the way SMS was sold in the regions, his own remuneration had gone down because his incentive payments had been reduced in light of the extra cost running through the SMS business unit's profit and loss accounts. He had felt disgruntled about regional managers such as Mr Roohizadegan, lacking entirely any of the detailed knowledge of the SMS product he had devoted himself to acquiring, henceforth getting a share of the profits as were the basis of his incentive payments. 613 With that in mind, I reject that I should draw an adverse conclusion about Mr Roohizadegan in respect of Mr Arnott's evidence that in many instances he hassled customers by calling them to follow up negotiations. Such pushiness may well have been regarded by Mr Arnott as "unprofessional and embarrassing". However, from the beginning it had been part of Mr Roohizadegan's job to sell TechnologyOne's products to educational establishments. The evidence in these proceedings confirms that Mr Roohizadegan well knew how to do that. 614 For those reasons, while I reject that Mr Arnott was in any respect dishonest I accept Mr Tracey's submission that at least in those regards the Court should find him to have been an unreliable and unconvincing witness.

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Mr Pye 615 Mr Pye gave his evidence-in-chief by way of a partially redacted affidavit (Ex R59, CB400-408). His evidence was that since 22 July 2014 he had been employed with TechnologyOne as its Company Secretary. At the time of Mr Roohizadegan's dismissal he had also held the position of Operating Officer - Corporate Services. He reported directly to Mr Di Marco. His evidence was that Mr Roohizadegan had mentioned his daughter's illness to him on approximately three or four occasions and they had discussed the challenges of having a sick daughter. He did not recall Mr Roohizadegan ever having said that his daughter's illness was impacting on his ability to perform his role. 616 He gave evidence-in-chief regarding certain aspects of the events of 12 May 2016 as follows: 4. The State Managers' meeting takes place once a quarter in Q2, Q3 and Q4 and is across two days. There was a State Managers' meeting on 11 and 12 May 2016 in Brisbane. 5. At the end of the second day of the State Manager's meeting, being 12 May 2016, Stuart MacDonald came into my office and said words to the effect 'I would like you to witness a conversation'. Stuart had started with TechnologyOne in about mid-April 2016 and Behnam reported to him. 6. Stuart then asked Behnam to come into my office. 7. Stuart said to Behnam words to the effect 'I want to go over the discussion we had earlier today about La Trobe. Did I or did I not ask you to not negotiate with La Trobe, and if you needed to speak to them, to come and speak to me before going back to them?' 8. Behnam responded to Stuart's question with words to the effect 'yes you did and I have not negotiated with La Trobe'. 9. Stuart then responded with words to the effect 'Let me read to you this email you sent' and Stuart proceeded to read a part of an email that Behnam had sent at 14:50 on 12 May 2016. I particularly recall Stuart repeated the following part of the email 'and I have got him back to a more reasonable number of $1 million over 5 years'. Attached and marked 'GP-1' is a copy of the 12 May 2016 email from Behnam to Adrian and copied to me and Stuart, about La Trobe University's discount request. 10. Stuart then said words to the effect 'the way I interpret this is that you have negotiated with the customer'. Behnam responded again that he did not negotiate with La Trobe. 11. Stuart reread the email from Behnam and then asked 'does it sound like you are negotiating?'. 12. Behnam responded with words to the effect 'No, he asked for that, I said I would need to get approval, I did not negotiate as you requested'. 13. I saw that Stuart was getting frustrated by Behnam's unwillingness to acknowledge that he had engaged in negotiations with La Trobe University against Stuart's instructions. Stuart said words to the effect 'for fucks sake Behnam'. In my view, Stuart did not swear at Behnam, but rather at the situation. The meeting was heated but in my opinion Stuart was not bullying Behnam. 14. Stuart and Behnam were loud during the discussion and those in close proximity would have heard at least raised voices. I suggested to both parties that we keep the conversation civil and calm. 15. This interaction went on for about 5 minutes, during which time they continued to go over the same ground. My observation was that Behnam was angry with Stuart. Behnam said words to the effect to Stuart of 'I do not appreciate this discussion, I do not appreciate you swearing at me, I did not negotiate with the customer. I did what you asked'. 16. Stuart responded with words to the effect, 'yes I did swear, but not at you'. 17. Behnam then left the office to catch a plane to Melbourne. I recall that Behnam was visibly angry when he left Stuart's office. 617 Mr Di Marco had asked him what had happened, and he provided an overview of those events by way of an email on 16 May 2016 (Ex R60, CB6671). 618 Mr Pye gave extensive evidence-in-chief in his affidavit (paragraph [21]) as to the detailed attention Mr Roohizadegan gave to the Victorian region's profit and loss statements. I do not take the detail of that evidence to be material to these proceedings, but the thrust of that aspect of his evidence was that Mr Roohizadegan had always been astute to question those statements if he had thought there was an error in the attribution of costs and if he considered that he in any way was missing out. 619 Mr Pye's evidence is that he had been responsible for preparing Mr Roohizadegan's termination package. He had not been involved in the drafting of the communications plan. He had prepared options for Mr Di Marco and Mr Chung to choose between as to what might be offered by way of a draft deed of release. The arrangements for share options were very different in respect of what might be offered. I infer that those different options had allowed the company, should it have so decided, to provide more value to Mr Roohizadegan on termination (paragraph [27]). 620 His evidence as to Mr Roohizadegan's seeking to be paid an incentive on sales of SMS in Victoria was as follows: 29. Prior to 1 October 2010, Student Management Services (SMS) were set up as an independent business unit and were separate from the State based regions because SMS did not form part of regional budgets and it did not go through the regions. 30. On 8 April 2011, Behnam and I had a telephone conversation in which Behnam raised the fact that he was not happy with only receiving 10% of the SMS revenue generated in Victoria. Behnam was the only Regional Manager who had benefited from a SMS licence fee prior to 1 October 2010 with the agreed 10% and any changes to this would need to be approved by Adrian. Behnam requested a copy of the commission policy for Regional Managers but I reiterated that the policy did not have this detail. Behnam knew, based on the conversations I had with him, and no doubt he had with Edward and Adrian that the 10% allocation for the Victoria TAFE SMS deal was a special arrangement for him that applied prior to 1 October 2010 and therefore would continue for the life of the licence. 31. I do not recall having any conversation with Behnam on l6 January 2014 about SMS incentives. … 33. While Behnam queried his incentive payments regularly, I do not recall him ever saying to me that he thought he was contractually entitled to SMS incentives prior to 1 October 2010. 621 In oral evidence-in-chief Mr Pye stated that he had been a member of the Executive Team. He had not attended the meeting on 26 April 2016, but he had been present at an impromptu meeting of the Executive Team that Mr Di Marco had called around a week before Mr Roohizadegan had been dismissed: Dr Spry: And who was at the meeting? Mr Pye: Mr Adrian, Ed - Edward Chung, Stuart MacDonald, Martin Harwood and myself. Dr Spry: And what did - the meeting was called by Mr Di Marco, did you say? Mr Pye: Yes. Dr Spry: And did he say what the purpose of the meeting was? Mr Pye: Only when we were in there. Dr Spry: Yes? Mr Pye: So when we were in there he said it's - as part of the termination with Benham, he wanted to ask everyone in the room if there was any reason why he should not terminate Benham. So he asked how it would impact the Victorian region, how it would impact the company, were there any things that we should consider and he asked us the upcoming La Trobe - the La Trobe deal, what would we do to ensure that we were able to close that opportunity as well. 622 He had also met with Mr Di Marco and Mr Chung on the morning of 18 May 2016 to review the termination package he had finalised. It had been approved. It had been a very quick meeting. 623 In cross-examination, Mr Pye accepted that during the discussion with Mr MacDonald which he had witnessed Mr Roohizadegan had said he had not agreed to or given any discount to La Trobe. 624 He gave the following evidence: Mr Tracey: And he [Mr Roohizadegan] also said "I actually" addressing Stuart he said: I actually approached you and I said, "Peter Nikoletatos wants to talk with us at 2 o'clock and you just told me to screw you and you left." That's what he said to Stuart, isn't it? Mr Pye: I don't recall. Mr Tracey: Possibly he said that? Mr Pye: Don't know. Mr Tracey: Well, you were there. Is it possible Benham said those words? Mr Pye: Could have been. Mr Tracey: And then he also said, "It's because you" - as in addressing you again: It's because you, by going and seeing them, that is La Trobe, on 6 May, the week before, that's why we are in this position. Benham said words to that effect to Stuart? Mr Pye: Yes. Mr Tracey: And that made Stuart pretty angry, didn't it? Mr Pye: Stuart was already angry. Mr Tracey: He's already angry. And so that point he said: Fuck you, Benham. You don't get it. You don't understand. Is that what he said, isn't it? Mr Pye: No. 625 Mr Pye accepted that Mr Roohizadegan had said to Mr MacDonald that he had very clearly told Mr Nikoletatos that he had no authority to give a discount. He further accepted that Mr Roohizadegan had also claimed that Mr MacDonald had never told him not to negotiate (T1008, lines 6-12). However, in re-examination Mr Pye clarified that only the first of those things had been said. His recall of what Mr Roohizadegan had said in response was "Stuart, you asked me not to negotiate. I have not negotiated with La Trobe" (T1020, lines 32-33). 626 Mr Pye later gave the following evidence: Mr Tracey: And then Stuart said in response, "Why did" - addressing Behnam, "Why did you send that email to Adrian?" That's what Stuart said? Mr Pye: Don't recall. Mr Tracey: Possibly he said that? Mr Pye: Don't know. Mr Tracey: I'm sorry? Mr Pye: I don't know. Yes, I can't recall. Mr Tracey: Well, therefore, it is possible? Mr Pye: It is possible. Mr Tracey: And then Behnam said, "This is the biggest deal" - or words to this effect: "This is the biggest deal for the company we've ever done, $23 million, and Adrian wanted to be across it. Adrian has said to me during the last few weeks and including at that time, 'I want the deal closed', so Adrian needs to be across it". That's what Behnam then said? Mr Pye: Yes. Mr Tracey: And then Stuart replies, "You don't get it. Fuck you, Behnam. You don't get it. You don't get it". That's what he said, isn't it? Mr Pye: No. 627 Mr Pye then answered a number of questions put to him by Mr Tracey to the effect that Mr MacDonald had not sworn at Mr Roohizadegan during that discussion. Taken by Mr Tracey to a passage in his affidavit, he gave the following evidence: Mr Tracey: Well, perhaps - would you be assisted by looking at paragraph 13 of your affidavit. That's - if you could be taken to volume 1 of the court book, please, at page 403. You say, in the middle of paragraph 13: Stuart said words to the effect, "For fucks sake, Behnam." Then you say: In my view, Stuart did not swear at Behnam but rather at the situation. Surely you agree with me that that's - that's just not a case of swearing at the situation. It's a case of swearing at Behnam? Mr Pye: No. Mr Tracey: Well, I suggest that - that you're putting it that way, namely that swearing at the situation, as a way of trying to downplay the gravity of the way Stuart was behaving? Mr Pye: No. Mr Tracey: And that's why you also volunteer at the end of 13 that Stuart was not bullying Behnam. That's right, isn't it? Behnam didn't swear once during that meeting, did he? Mr Pye: Correct. He didn't. Mr Tracey: And Behnam is not the kind of person, in your experience, who would receive that kind of yelling and swearing well, would he? Mr Pye: Don't know. Don't know. Yes. Mr Tracey: Yes, he would not receive it well? No? I suggest to you that what you're trying to paint in your affidavit, Mr Pye, is a picture of two equals having a heated discussion when, in fact, it was very much a case of Mr MacDonald bullying Behnam? Mr Pye: No. 628 Mr Pye was then cross-examined as to his statement in his affidavit (at paragraph [30]) that when Mr Roohizadegan had asked for a copy of TechnologyOne's commission policy for regional managers for SMS, he had reiterated that the policy did not have that detail. 629 Mr Tracey asked Mr Pye where one could have found the detail of or the policy about the percentages of revenue sharing between business units. His answer was: "There wasn't a policy then. There is no policy on that" (T1012, lines 18-19). His evidence continued: Mr Tracey: And what is it - what is the policy that refers to royalties at this time? Mr Pye: Would have been the royalty rules. Mr Tracey: Right. Where do you find the royalty rules? Mr Pye: They were published with the budget and were available for access. Mr Tracey: So let's just break that down. They were published with the budget. Where do - where would an employee of Technology One access the budget? Mr Pye: He can - in our - in our - in our ERP system. Mr Tracey: Is your ERP system like an intranet? Mr Pye: No. It's our accounting system. Mr Tracey: An accounting system? Mr Pye: Yes. Mr Tracey: And who has access to that within the business? Mr Pye: The various business unit managers and - would have access to their business unit budget. Mr Tracey: So these - you refer to royalty rules - are they changed annually? Mr Pye: They change very rarely. Mr Tracey: They change very - you say they change very rarely. Are they …? Mr Pye: They're … Mr Tracey: Yes. Are they published annually, though, in the budget? Mr Pye: They are - they are now, yes. Mr Tracey: They are now? Mr Pye: Yes. Mr Tracey: When did they start getting published annually in the budget? Mr Pye: I think - I think 12. FY11 or FY12 - around there. Mr Tracey: So is that why you said in 2011 to Behnam that the policy did not have the detail because it wasn't then published? Mr Pye: No. That was the commission policy which is different to the royalty rules. Mr Tracey: So the royalty rules are a separate document …? Mr Pye: Yes. Mr Tracey: … from the commission policy? Mr Pye: Correct. 630 Mr Pye then conceded that as at 2010 there also was nothing in TechnologyOne's summary of royalty rules 2010-2018 (Ex A79) specifically dealing with the SMS product (T1014, lines 24-26). 631 In re-examination Mr Pye gave evidence that the information at page 20 of the confidential court book (containing more sensitive information relating to TechnologyOne) was more detailed and correct in respect of TechnologyOne's royalty rules than was the information in Ex 79. He accepted however that even in that document, SMS was not mentioned. His evidence was that it would not have been appropriate to include it at that time: Mr Tracey: Okay. And why should it not be included? Mr Pye: It should not be included, in my opinion, until - FY11 student management was not of sufficient scale and/or size. So it was sold not through the regions but sold separately. We have a separate sales team, a separate consulting team and a separate R & B team. They managed the sale of SMS when we, as an organisation, got sufficient size and scale we then looked to the regions for them to start selling it - or selling the SMS product. SMS products have a long sales time, so they will have, you know, one to two year sales time. They're very complex. I guess, solutions to sell to customers, they're very complex to implement. And until then I don't believe we had the skills in our regions to actually be able to manage those sales and those complex implementations. 632 Regarding the credit of Mr Pye, the Applicant submits as follows: 7.49 Mr Pye's evidence is undermined because he sought to suggest that the incident between Mr McDonald and the Applicant involved equal poor behaviour on the part of each of them. In trying to advocate for this position, which was untrue because the evidence shows Mr McDonald as the true (and uncouth) aggressor, Mr Pye decided to depose to the Applicant being angry, and yet did not so describe Mr McDonald. 7.50 This approach undermines Mr Pye's credibility and reliability. To the extent that his evidence conflicts with that of the Applicant, the Applicant's evidence should be preferred. 633 The Respondents advanced no submissions with respect to the credit of Mr Pye. 634 Mr Pye was significantly uncomfortable in giving his evidence. His demeanour was consistent with that of a person uneasy with the circumstances in which he found himself. The example Mr Tracey cites in his submissions above is consistent with that impression. So too is the instance in cross-examination when Mr Pye maintained his affidavit evidence that Mr MacDonald was on 12 May 2016 swearing "at the situation" rather than at Mr Roohizadegan. I acknowledge that when Mr Tracey put to Mr Pye that he was deliberately trying to "downplay the gravity of the way Stuart [MacDonald] was behaving", Mr Pye denied that. His denial is unpersuasive. I specifically reject Mr Pye's evidence that Mr MacDonald did not swear at Mr Roohizadegan during the conversation he witnessed. Mr Pye's repeated denial in that regard is not credible, having regard to his own evidence that Mr MacDonald was angry and Mr MacDonald's admissions in these proceedings regarding his use of such language. 635 Nonetheless - subject to my significant concern that Mr Pye was, in such instances, prepared to downplay matters which might reflect poorly on the company that presently employs him in a senior capacity - I am satisfied that Mr Pye sought to be a careful and honest witness. 636 Mr Pye made two significant concessions in cross-examination. He accepted it to be possible that Mr MacDonald may have said, directed at Mr Roohizadegan, "Why did you send that email to Adrian [Di Marco]". He also accepted that Mr Roohizadegan may have said, directed to Mr MacDonald , "I actually approached you and I said 'Peter Nikoletatos wants to talk with us at 2 o'clock' and you just told me to screw you and left". 637 Those words, on Mr Roohizadegan's case, are critical to understanding the context in which the conversation Mr Pye witnessed took place. 638 In respect of his evidence of the conversation he witnessed, I note that Mr Pye's email to Mr Di Marco was composed some three days after the event and in the knowledge that Mr Roohizadegan was on the cusp of being terminated. It does not purport to be a full account. I am satisfied that neither Mr Pye's note nor his evidence in this proceeding should be preferred over the account of those events given by Mr Roohizadegan based on his contemporaneous notes. 639 In any event while some differences between the account Mr Pye gave as to the conversation he witnessed between Mr Roohizadegan and Mr MacDonald and that as recounted by Mr Roohizadegan remained, having regard to Mr Pye's significant concessions in cross-examination those differences can be accepted to have been at the lower end of importance: save as to his complete denial of Mr MacDonald having used swear words. 640 Subject to those observations, I find Mr Pye to have been a witness whose evidence I am entitled to accept.

[54]

Ms Carr 641 Ms Carr gave her evidence-in-chief by way of a redacted affidavit (Ex R61, CB452-469) supplemented by oral testimony. Her evidence is that she is currently a manager of HR business partnering. She was previously employed by TechnologyOne. She commenced as a HR specialist on 16 May 2011. She later became HR Director and was in that position for approximately two years before resigning from the company on 31 March 2017. In her role as HR Director she was responsible for the HR function of the entire business of TechnologyOne, which employed approximately a thousand employees across five countries. 642 On a day-to-day basis she had had very little interaction with its regions. In the 12 months prior to Ms Carr's resignation a "HR business partner", Ms Gibbons, had handled the majority of routine HR issues in Victoria. 643 Ms Carr's evidence is that she was aware that there was a long history which had led to the termination of Mr Roohizadegan's employment with TechnologyOne on 18 May 2016. It was her understanding the business had been preparing for the termination of his employment for some time, and certainly well before that date. She had been aware from conversations with Mr Harwood that "for a variety of different reasons" the termination of Mr Roohizadegan's employment had not yet taken place. Her evidence is that Mr Harwood "was always very open with me"; he had told her that both Mr Roohizadegan's behaviour and his numbers were poor. He had also told her that Mr Roohizadegan did not respect him and often had been very rude towards him (paragraph [18]). 644 Ms Carr's evidence is that as early as 5 September 2015 she had begun preparing a script and communication plan for Mr Roohizadegan's termination "because I had a number of conversations with Martin [Harwood] that led me to believe that Benham's employment would be terminated at some point". Based on her conversations with Mr Harwood she "knew that he had been speaking frankly with Benham about his work performance and his lack of hitting the numbers" (paragraph [45]). Around the same time, "as a result of the series of complaints and issues about the Victorian office" Ms Carr had directed Ms Gibbons to keep a file "on any future incidents that seemed unusual about Benham's interactions with others" (paragraph [80]). 645 Ms Carr's evidence is that although she had been made aware of reports of Mr Roohizadegan's challenging behaviour, he had not been the subject of any complaints from within his staff until late 2005: 24. After a focus group discussion in late 2015, Rebecca told me that one of the Victorian team members, Simon Dugina told her that Behnam had issued a veiled threat to him and others that if they gave Behnam a poor review, there would be consequences for that employee. Behnam also implied that he had people in the room that would let him know exactly what was said and who said it. This was the first time, I believe, that an employee had told us about Behnam's behaviour. Given that none of the Victorian employees had spoken before about Behnam's behaviour in the past, I had an impression that things were getting worse for people in Victoria. 646 Ms Carr's evidence as to what had then transpired is as follows: 25. HR Business Partners are required to travel to other regions as part of their role. Towards the end of April 2016, Rebecca [Gibbons] travelled to the Victorian office to monitor the operations there. Rebecca's normal practice was to catch up with the team in the Victorian office and see how things were progressing for them. 26. Rebecca called me on or about 24 April 2016 to advise that she had been approached by all team members in the sales team, within the Victorian office on an individual basis and was asked to go for a coffee outside the office. Rebecca advised me that each employee wanted to discuss their concerns about working with Behnam. I do not recollect the exact date that Rebecca called me. 27. I did not make a file note of my conversation with Rebecca but I asked Rebecca to put the employee's concerns in an email so that we could brief Adrian. In my view something had to be done to correct the situation in the Victorian office. I decided to brief Adrian because the concerns were serious and they involved a very senior member of staff. 28. Rebecca sent an email to me on Sunday 24 April 2016 outlining the concerns that each employee had expressed to her during their meetings with her. On Monday 25 April (Anzac Day), I forwarded Rebecca's 24 April 2016 email to Adrian and copied it to Martin Harwood and Edward. Attached and marked as 'KC-2' is a copy of the email dated 25 April 2016 at 10:40, sent by me to Adrian, Martin and Edward, regarding the information provided by Rebecca about the concerns the Victorian staff raised with her. 29. Adrian replied to my email on the same day requesting that the matter be discussed in a meeting the following morning. Attached and marked as 'KC-3' is a copy of Adrian's email dated 25 April 2016 at 11:18am, regarding his request that Edward, Martin and I attend a meeting on 26 April to discuss Rebecca's feedback on the Victorian employees. 30. A meeting was scheduled for 26 April 2016 at 11.30am with Stuart MacDonald, Edward, Martin and me to discuss the contents of the email. 647 Ms Carr's evidence as to what occurred during the meeting of the Executive Team on 26 April 2016 is as follows: Dr Spry: Now, did you attend any meetings on that day in relation to Mr Roohizadegan? Ms Carr: Yes. Dr Spry: And how many meetings did you attend on that day in relation to Mr Roohizadegan? Ms Carr: I recall one meeting. Dr Spry: And what was that meeting? Who was at that meeting? Ms Carr: So it was Adrian, Martin Harwood, Ed Chung, Stuart MacDonald and myself. Dr Spry: And …? Ms Carr: And then someone else was brought in later. Dr Spry: And who was brought in later? Ms Carr: Rebecca Gibbons was invited after we had commenced. Dr Spry: Okay. So if we go through in sequence, what was your understanding of the purpose of the meeting? Ms Carr: The purpose of the meeting had been in an earlier email. It was at a request from Adrian. I had sent him an email about a complaint that Rebecca had received and had sent me. I forwarded that to Adrian and I believe - and others on the executive, and he responded in an email saying, "Can we please meet about this on" - the next day. Dr Spry: Now, how was the meeting commenced? Once you get - once you're in the room, was any others there or did you all arrive at the same or … ? Ms Carr: I don't recall whether the - how we - but I remember the start of the meeting, which was Adrian speaking. Dr Spry: And what did Adrian say? Ms Carr: Which was he was - he said, "This guy has got to go". Dr Spry: And who was he referring to? Ms Carr: Behnam. Dr Spry: Did he say anything else in his opening remarks? Ms Carr: He said that this wasn't the culture that we want - wanted within the organisation, words to that effect. Dr Spry: And what was he talking about there, do you know? Ms Carr: He was - he was referring to the email and the complaints that had been put into that - into that email by the staff. Dr Spry: And then what happened after he made those remarks? Ms Carr: He asked others about what they thought, about whether - about the email and about whether Benham should be terminated. Dr Spry: And what's your recollection of - well, who - at the meeting you said Mr Harwood was present? Ms Carr: Mmm. Dr Spry: And what did he say? Ms Carr: He said, "You know my views." And I took that to mean that he spoken with Adrian prior and that he was in support of terminating his employment. Dr Spry: Who else was there at the meeting? Ms Carr: Stuart MacDonald. Dr Spry: Yes, and what did he say? Ms Carr: I don't recall exactly what he said. Dr Spry: And what did you say? Ms Carr: I didn't - I don't - I didn't say anything at that time. They had a general discussion about … Dr Spry: They - who's "they"? Ms Carr: They. Around the table, I can't recall who said what. Dr Spry: Okay? Ms Carr: But they certainly just talked about the email and how bad it was. I highlighted that because we had received a complaint from staff that we needed to investigate it. And if they were going to make a decision about a termination we needed to do that quickly, because we needed to respond to the complaint the staff had made. Dr Spry: Was anything said about when you said - did you say there needed to be an investigation, did you? Ms Carr: Yes. So Adrian said that he didn't want there to be an investigation. He implied it was the last straw, that he didn't want to put staff through a - you know, an investigation and have that. They were obviously already upset based on the email. His Honour: Sorry, you were asked about what was said and now you're speaking about things which were implied. It would assist if we break these things up. Can you recall what was said? By whom? Ms Carr: By Mr Di Marco. … Ms Carr: Yes, that he didn't want the staff to go through an investigation. Dr Spry: And did he tell you why he didn't want the staff to go through an investigation? Ms Carr: Yes, because the complaints were very serious and there were other issues at play here and it was - that's all. Dr Spry: And did you say anything in response to that view - when he expressed that view to you? Ms Carr: Just that we needed to move quickly if we were going - if we weren't going to investigate this. We had to act quickly if that was - if that was going to be the decision he made. Dr Spry: And then was there any further discussion? Ms Carr: Yes. There was discussion about the numbers and … Dr Spry: By "the numbers" what do you mean? Ms Carr: There was a big deal on the table that needed to be closed. It was an over a $2 million deal. It was La Trobe. And there was a discussion about how critical Benham was to closing that deal. And Stuart MacDonald, I believe, was tasked with finding out how critical Benham was, so - and then the meeting ended. Dr Spry: And was there any remarks made in closing of the meeting? Was there any decisions made or was the decision? Ms Carr: The decision - the decision to terminate had already - was made right at the beginning of the meeting when Adrian started speaking saying, "This guy has to go." The decision was that he would be terminated. And - but before the date was set … Dr Spry: Yes? Ms Carr: Stuart had to find out how critical Benham was to closing that deal. 648 Ms Carr's evidence is that she then began to update the script and communications plan for Mr Roohizadegan's termination she had earlier drawn up. The script and plan together were a "live document'" which she had continually updated after discussion and input from Mr Di Marco and Mr Chung or others (T1033, lines 5-17). As the script for Mr Roohizadegan's dismissal evolved, Mr Di Marco's instructions had been for her to plan to conclude the termination meeting at 10.45am (T1036, lines 31-44). 649 In oral evidence-in-chief Ms Carr also gave evidence about a second, "continuation" meeting of the Executive Team that she had attended on 3 May 2016. Those present had been Mr Di Marco, Mr Chung, Mr Harwood, Mr MacDonald and herself (T1030, lines 29-35). Ms Carr's evidence regarding that meeting is, inter-alia, as follows: Dr Spry: Now, what was discussed at that meeting? Ms Carr: That meeting was to be a continuation of the previous meeting where … Dr Spry: And by the previous meeting, you mean …? Ms Carr: The - the 26 April. So it was discussed - okay. It was discussed about the termination. Adrian asked Stuart for an update on how critical Behnam had been to the La Trobe deal. I believe Stuart still had some more information to gather on that. That - there was also just general conversation around Behnam's performance and just a reiteration of the issues that were happening in the Victorian office. 650 She had made some brief notes during that meeting, which were in the following terms (Ex R64, CB5780): Behnam meeting Can take no constructive criticism Deflects from the real issues, Near impossible to get a benefit If I had nothing he'd make WE are further along the curve than he is. He isn't for us. Not value to him, not Dangerous him being so far away. 2 receptionist, 1 EA, bloated Problem - $6.9 million to close behind - 4 deals Make the change - one number $2.9 is Latrobe, have the conversation with Amit, Simon Behnam give him a carott [sic]. If you offer him some incentive, my take - do Manipulate a story - a strategic advisor - he will be viscious [sic] Do it now, minimise the pain. Latrobe very important. Meet with Latrobe - put the timeline together. A couple of payments to keep him quiet. maybe over 12 months. 651 Ms Carr's evidence-in-chief regarding those notes was as follows; Dr Spry: During the meeting. And can you tell - if we go through them. "Can take no constructive criticism", who was saying that? Ms Carr: Yes. So I don't recall who said what and I didn't put it down. The purpose of this was for my own memory, so - for my own record, sorry. So "can take no constructive criticism" was in reference to Behnam and that was about when issues had been raised with him in the past that he wasn't taking - didn't take any accountability for those - for that - for whatever was being discussed. He deflects from the real issues. "Near impossible to get a benefit", I don't know - I don't recall what that - that particular line meant, or the next one. "We are further along the curve than he is" meant that the business had moved forward but he hadn't kept up with that movement. "He's not for us anymore". "It's dangerous him being so far away" was just a reference to his location in that he was leading the Victorian office and the executive were mainly based in the Brisbane office. Also, just some of his decisions around having two receptionists and an executive assistant seemed bloated in terms of the way he was running the Victorian region. Dr Spry: Was that consistent with other regions? Ms Carr: No. So, for example, New South Wales, I think, just had one administrator. The problem, though, in making the - the termination around when the termination would happen was that there was 6.9 million to close before the end of the financial year. So there was four deals and the big one was 2.9 for La Trobe and we needed to make the change, so Stuart MacDonald had to have the conversation with Amit and Simon. I don't recall Amit's surname or Simon's surname but - and "give him a carrot" refers to what the - what the offer would be for that termination, what sort of incentive would be offered. And also, "manipulate a story, a strategic advisor, he will be vicious", what that meant was - a reference to was that - "he will be vicious" was that there was a view from people in the … Dr Spry: Who would be vicious? Ms Carr: Behnam will be vicious - is that he would … His Honour: I think it's got "he will be viscous", but I'm not sure that that could be right? Ms Carr: No, it's not. You're right. "Vicious", it's supposed to be. Dr Spry: So what was that word that should be there? Ms Carr: Vicious. Viscous. Vicious - in that he would, I guess, not take this well and would potentially take legal action against TechnologyOne, but certainly the organisation was willing to have a story where he was considered a strategic advisor. Adrian asked the room whether there were any roles that Behnam could do apart from the regional manager in Victoria and there was discussion about what that might look like. For example, he could be a strategic advisor to big deals or whatever that might be. And the general view from the room was that that wouldn't be appropriated based on his - based on the complaints that had been received from staff and his interaction with others. So therefore we really needed to do it now to minimise the pain but the deal was very important. "And a couple of payments to keep him quiet, maybe over 12 months" is reference to, again, the settlement that was offered, whether it would be a 12-month one-off payment or whether it was two payments over 12 months, one at six, one at 12. 652 In cross-examination Ms Carr accepted that she had been copied into a calendar invitation for the termination meeting, and that that invitation suggested to Mr Roohizadegan that the meeting would be for a different purpose; that it would be "a review meeting" for which five hours had been allocated and at which Mr MacDonald would be present (T1037, line 22-T1038, line 35). She conceded that she had known that to be misleading in three regards: the nature of the meeting, the attendees and the duration. She had done nothing to disabuse Mr Roohizadegan with respect to any of those issues (T1038, line 37-T1039, line 11). 653 She had taken notes of what was said in the termination meeting straight after the meeting (T1046, line 24). 654 Ms Carr's evidence in cross-examination regarding the termination meeting itself can be dealt with quite shortly. 655 Ms Carr conceded that Mr Di Marco had not said anything about Mr Roohizadegan being involved in systematic bullying. He had not referred to Mr Roohizadegan having created a culture of fear in Victoria (T1048, lines 43-47). 656 Ms Carr recalled Mr Di Marco having said that the "numbers" weren't good, although she conceded she had not included any reference to that circumstance in the notes she had made of what had been said in the meeting (T1049, lines 1-8). 657 One difference is that Ms Carr rejected that Mr Di Marco had said of Mr Roohizadegan's dismissal: "It's got nothing to do with Stuart [MacDonald]" while in Mr Roohizadegan's presence. Her evidence is that Mr Di Marco had said that prior to Mr Roohizadegan entering the room (T1041, lines 3-7) and that "we didn't talk about [Mr Roohizadegan's complaints of bullying] in the meeting" (T1050, line 32). However, when it was put to her in cross-examination that Mr Di Marco had given contrary evidence Ms Carr did not maintain her certainty. Asked if she simply did not recall it or if her evidence was that it "wasn't actually said", Ms Carr responded simply that she had no recall of that having been said (T1047, lines 7-16). In those circumstances I do not take Ms Carr's earlier rejection that Mr Di Marco uttered the words of which Mr Roohizadegan gives evidence as being of any significance. 658 Otherwise, much of what occurred during that meeting and in its immediate aftermath is common ground. As per the script Ms Carr had prepared for Mr Di Marco, the meeting took only a short time. Her evidence is that Mr Di Marco presented Mr Roohizadegan with a non-negotiable "one time offer" (T1047, lines 34-36). Mr Roohizadegan's termination was announced by TechnologyOne later that morning, by an email in terms that Ms Carr had previously prepared. 659 Ms Carr accepted that on leaving the termination meeting in Brisbane Mr Roohizadegan had been highly distressed. He had directly alluded to suicide. She had been concerned about his welfare (T1051, lines 17-27). 660 As to her evidence-in-chief regarding the "long history" of concern that TechnologyOne had had with respect to Mr Roohizadegan and the examples she had given, Ms Carr conceded in cross-examination that it had only been a rumour that he had secretly recorded conversations and that she did not know if that was true or not (T1053, lines 9-14). She had formed her view about Mr Roohizadegan not routinely holding Friday drinks not from what she knew herself, but from what she had been told (T1053, lines 34-47). With respect to another example (being that Mr Roohizadegan had taken issue with a car space being allocated to a TechnologyOne employee, Mr Baxter, who was entitled to one, and had refused to give him a space with the result that a park had had to be sourced offsite) Ms Carr conceded that Mr Roohizadegan would have had to have taken a parking place from his sales team to have allocated one to Mr Baxter, and that it was simply that she and Mr Roohizadegan had taken different views as to how that choice should be made (T1054, lines 15-44). She conceded that her earlier statement that she had concluded that things were getting worse for staff in Victoria after she had learnt of Ms Gibbons' report could not have been correct because there had been no earlier instances of any staff complaints. An anonymous complaint on the "Seek" website had not been investigated (T1055, line 25-T1056, line 11). 661 Ms Carr also conceded, significantly, that the concerns that Mr Harwood had reported to her in 2015 about Mr Roohizadegan being rude and disrespecting him related to the fact that Mr Roohizadegan would often escalate complaints over his head and go directly to Mr Di Marco (T1053, lines 24-30). 662 Ms Carr accepted that Ms Gibbons' email to her of 24 April 2016 concerning the discussions she had had in Melbourne had included a statement that Mr Roohizadegan was considering legal action due to his having (on his assertion) been bullied by Mr Sutching. Nonetheless Ms Carr sought to maintain that to which she had deposed in her affidavit, being that she had not been aware until preparing it that Mr Roohizadegan "was proposing to bring legal proceedings against TechnologyOne", should be accepted. Pressed as to the seeming inconsistency, Ms Carr gave the following evidence: Mr Minson: And when you read that, you understood that to be him taking legal action against TechnologyOne, is that right? Ms Carr: No. Mr Minson: Well, what did you consider that to be? Ms Carr: That he told Rebecca that he was considering it. Mr Minson: I see. But legal action against TechnologyOne, is that right? Ms Carr: Yes. Mr Minson: Yes. So that's not consistent, is it, with the part of paragraph 70 that I've just taken you to, where you say you weren't aware until preparing this affidavit that Behnam was proposing to bring legal proceedings against TechnologyOne? Ms Carr: Yes. Mr Minson: Not consistent. You were aware? Sorry. You were aware from Rebecca's email, were you not, that Behnam was proposing to bring legal proceedings against TechnologyOne? Ms Carr: From Rebecca's email, it said that he was considering it. I didn't know that he was proposing to bring legal action. Mr Minson: Well, are you drawing a difference between considering and proposing? Ms Carr: Possibly. Mr Minson: Do you recall putting this sentence in your affidavit? Ms Carr: Yes. Mr Minson: And notwithstanding that you agree with me that you carefully read Rebecca's email, and that you agree with me you took it to mean that Behnam had told Rebecca that he was considering legal action against TechnologyOne, you stand by the second sentence of paragraph 70 of your affidavit, do you? Ms Carr: Yes. 663 Ms Carr accepted it was possible that during the subsequent (first) meeting of the Executive Team Mr Di Marco had called to discuss that email the prospect of Mr Roohizadegan taking such action had been discussed (T1062, lines 25-29). 664 Ms Carr conceded that at the first meeting of the Executive Team in that regard, held on 25 April 2016, Mr Di Marco had raised the issue of whether it might be possible to move Mr Roohizadegan to another position in the business and that Mr Harwood and Mr MacDonald had said no to that proposition (T1062, lines 31-40). As to that circumstance Ms Carr gave the following evidence: Mr Minson: Now, as an HR professional you would have thought that it was at least worthwhile considering moving someone somewhere else before terminating them? Ms Carr: Yes. Mr Minson: So the fact that that was discussed suggests, doesn't it, that no final decision to terminate Benham had been made at that point? Ms Carr: It may suggest that. Mr Minson: Well, I put it to you that no final decision had been made, at that point, to terminate Benham? Ms Carr: I believe the decision was made the moment we walked into that meeting. Adrian said it as soon as walked in: "This guy has got to go." Mr Minson: So, by that, you took him to mean - you took that to mean, did you, that, in effect, the decision had been made? Ms Carr: Yes. Mr Minson: But in that meeting Adrian was there to get everybody's views about whether to terminate Benham, wasn't he? Ms Carr: Yes. Mr Minson: Yes. And there was discussion, wasn't there, of moving Benham to another role within the business? Ms Carr: Yes. Mr Minson: And when the termination was being discussed you - understandably, given your training - expressed the view that the business needed to investigate the concerns that had been identified in Rebecca's email? Ms Carr: Yes. Mr Minson: And that was because, as an HR professional, you knew that they were just allegations at that point? Ms Carr: Yes. Mr Minson: And that they needed to be fairly investigated? Ms Carr: Yes. Mr Minson: And that that involves giving fairness to both sides - both the people making the allegations and to Benham? Ms Carr: Yes. Mr Minson: And you knew from Rebecca's email that, at that point, none of those allegations had been put to Benham, had they? Ms Carr: Correct. Mr Minson: And you said that Adrian - you said in your evidence last week that Adrian was against the idea of investigating the contents of the email? Ms Carr: Yes. 665 As to the second meeting of the Executive Team that took place on 3 May 2016, Ms Gibbons gave evidence in cross-examination as follows: Mr Minson: And you said in your evidence last week that at that meeting Adrian again, as he had on 26 April, raised the issue of whether Behnam could work elsewhere in the business? Ms Carr: Yes. Mr Minson: Is that right? Yes. And one possibility that was floated was that he could be a strategic advisor? Ms Carr: Yes. Mr Minson: So consideration was still being given at this meeting to Behnam being redeployed within the company? Ms Carr: Yes. 666 Notwithstanding her concessions, Ms Carr continued to maintain that the decision had already been taken and that it had not been possible that Mr Roohizadegan would not be terminated. She however accepted that she recalled discussion with respect to Mr Roohizadegan having four deals he was in the process of closing, including the very significant La Trobe deal : Mr Minson: And your understanding was that Benham was about to close that deal? Ms Carr: Well, if the deal was to be closed, but … Mr Minson: But you were talking at the meeting, were you not, about - and at the meeting on 26 April about trying to find out whether, or how critical Benham was to the deal? Ms Carr: Yes. Mr Minson: And whether he needed to remain employed by the company? Ms Carr: Correct. 667 Ms Carr also conceded that she had again raised that TechnologyOne should investigate the allegations that had been contained in Ms Gibbons' email. There had been no support for that (T1069, lines 41-44). 668 Ms Carr then gave evidence in cross-examination that although she had stated in her affidavit that "the executive team decided to proceed to terminate" Mr Roohizadegan's employment in the meeting of 3 May 2016, that statement was incorrect. The decision had been made earlier and Mr Di Marco had been the sole decision maker. What she had stated in her affidavit had been "a poor choice of words" (T1070, lines 26-47). Her oral evidence was the truth. 669 Ms Carr did not recall a further meeting on 6 May 2016 with Mr MacDonald and Mr Di Marco at which Mr Di Marco had wanted to pause the process. However, she accepted that on or around 6 May 2016 she had altered a reference in her "live" script and communications plan for Mr Roohizadegan's termination by deleting references to staff focus groups in Melbourne having on two occasions expressed unhappiness with his leadership. Ms Carr accepted that prior to Ms Gibbons' report, the content of earlier staff feedback seemed to have been positive (T1083, lines 10-39). 670 Ms Carr acknowledged that Mr Roohizadegan had made a bullying complaint against Mr MacDonald on Friday 13 May 2016, five days prior to his being terminated. Ms Carr accepted that it was possible she had been on a conference call with Mr Di Marco and Mr Chung at which Mr Di Marco had told Mr Roohizadegan that Mr MacDonald had been counselled. She had no memory of it, but it was her understanding that Mr Di Marco had counselled Mr MacDonald for his aggressiveness and swearing in the office (T1074, lines 38-40 and T1076, line 31). She accepted that for Mr Di Marco to have advised Mr Roohizadegan to have a relaxing weekend, unwind and "start afresh Monday" was "a bit disingenuous" if Mr Di Marco was planning to dismiss him the following week (T1076, lines 40-41). 671 Ms Carr's evidence in cross-examination was that Mr Di Marco had not spoken to her further about Mr Roohizadegan's bullying complaint. Instead, he had sent an email to Mr Roohizadegan on 16 May 2016 to inform him that he had asked her to "officially investigate the matter". Her evidence as to that was as follows: Mr Minson: Had he asked you to do that before he sent this email? Ms Carr: No. Mr Minson: Are you - were you copied to this email? Ms Carr: I think so. Mr Minson: So did you take that to be him asking you by this email to investigate? Ms Carr: Yes. Mr Minson: Yes? Ms Carr: Sorry, he may have spoken to me about it. I don't recall. Mr Minson: Yes. But it wasn't earlier than the 16th, was it? Ms Carr: I don't believe so. Mr Minson: And then, again, in Adrian's email he says, towards the end: So for now I suggest let's - let Kathy do her investigation and report and we all go back to work as normal. I counselled Stuart and you now. So as two professional and senior members of my staff I expect you to go back to work and work appropriately and to restart your relationship. Now, again, we're even closer in time than we were on the Friday. At this point in time, Mr Di Marco and you knew that two days later Benham was going to be terminated; is that right? Ms Carr: Yes. Mr Minson: So, again, suggesting to Benham that he restart his relationship with Stuart two days before termination was, again, I put to you, disingenuous? Ms Carr: Yes. 672 Her report to Mr Di Marco - which concluded, inter-alia, that Mr MacDonald's conduct did not amount to bullying but that he should apologise to Mr Roohizadegan - was dated 17 May 2016. She had completed it prior to Mr Roohizadegan's dismissal. Mr Roohizadegan had not been given a copy of her report. Ms Carr conceded in cross-examination that Mr Roohizadegan had sent her some further emails relevant to her investigation early on the morning of 18 May 2016 (T1079, lines 1-37). 673 In re-examination Dr Spry asked Ms Carr to expand on her evidence in cross-examination when asked whether it had been Ms Gibbons who had made her aware that it was "common knowledge in the HR department that [Mr Roohizadegan] was a problem". She answered as follows: Dr Spry: And you were asked some questions about your second line, "I was aware of Benham because it was common knowledge in the HR department that he was a problem"? Ms Carr: Mmm. Dr Spry: And it was suggested to you that that came from Ms Gibbons? Ms Carr: Okay. Dr Spry: And your evidence was, "Ms Gibbons and other places"? Ms Carr: It came from lots of places. So … Dr Spry: What did you mean by "other places"? Ms Carr: Other places? There had been issues with recruitment. So with recruitment agencies finding it difficult to fill roles. They had had a complaint about an interview that Benham had conducted. What else? The previous - my - my predecessor had had - had spoken about issues prior to me being there. So it was common knowledge. I can't - she just said there were some issues. Martin had told me - Martin Harwood had told me that there were issues with Benham as well, that he had observed. Yes. 674 With respect to Ms Carr's credit, the Applicant submits that: 7.40 Ms Carr's evidence was, for the most part, direct and able to be accepted. That is not the case, however, when it comes to the inconsistency between her affidavit and oral evidence. Unfortunately, that inconsistency undermines all of her evidence, such that, on controversial matters, her evidence should be given little weight, and where her evidence conflicts with the Applicant's evidence, the latter should be preferred. 675 The Respondents submit that: Ms Carr no longer works at Technology One. In her position at Technology One she was removed from direct involvement with the Applicant and she has no motive or reasons to be dishonest in giving her evidence. Much of her evidence related to her attendance at meetings and her reporting of findings made by Ms Gibbons the HR Manager for Victoria. Ms Carr did have some problems recalling dates when she was unable to refer to her affidavit or reference material, however this is not unexpected when the dates relate to events that occurred more than three (3) years ago at a workplace that she longer attends. The specifics of the dates and times of meetings are objectively established in the material before the Court. 676 Ms Carr's demeanour was that of studied indifference. She gave her evidence as would a disinterested bystander who had had little or no engagement with the events discussed. 677 Thus, when in cross-examination questions were put to Ms Carr in relation to an email sent out within TechnologyOne advising of Mr Roohizadegan's termination - a process she accepted that she had scripted - Ms Carr responded (T1050): Mr Minson: Well, it certainly wasn't conveyed in that email, was it, that Behnam voluntarily left the organisation? Ms Carr: I would have to reread it. 678 However, I reject Mr Tracey's submission that the inconsistencies as arose between Ms Carr's evidence-in-chief and that which she gave in cross-examination undermine all of her evidence such that on controversial matters it should be given little weight. I am entitled, and ought to, reject aspects of Ms Carr's evidence by reason of such inconsistencies. Overall however I am satisfied that when Ms Carr's evidence is taken as a whole, taking into account the concessions she made in cross-examination, I should accept her to have been a witness of the truth. 679 I accept that much of her evidence as given by affidavit is incapable of unqualified acceptance. However, once in the witness box I became convinced that Ms Carr was prepared to give an account of the truth as she understood it to have been: no matter how awkward it was for her. Thus, while it must have been excruciatingly embarrassing for a senior HR professional to have had to have made the concessions Ms Carr acknowledged in cross-examination (see above at [662]-[665]; [669]-[670], [672]), nonetheless they were made. I do not discount that Ms Carr's demeanour was in consequence of her being aware that if she was not to present as a wholly untruthful witness she would have to endure some humiliation. Nor do I discount that she may have belatedly come to the understanding that she may have been "groomed" by Mr Harwood and others (or if that is too strong a word - led) to have formed a highly adverse view of Mr Roohizadegan without any personal knowledge and without the evidence in support that a competent HR professional might be expected to bring to her task. 680 It may be accepted that it is surprising that Ms Carr appeared not to have any recall of certain events, such as the following example (T1072-1073): Mr Minson: I think we finished with the 3 May meeting. Now, Mr MacDonald says that there was a further meeting on 6 May, with you and him and Mr Di Marco, and possibly Mr Chung, about the communications plan; do you recall that meeting? Ms Carr: I don't recall it. Mr Minson: And he says that Adrian was concerned that the communication plan wasn't complete, and he wanted to pause the process; do you recall that? Ms Carr: I don't recall that. Mr Minson: And he says - Mr MacDonald says - that Adrian decided at that meeting on 6 May that he wanted to be the person to terminate - or have the termination discussion? Ms Carr: I don't recall. Mr Minson: Rather than have Stuart do it. When you say you don't recall, do you - is it simply you don't recall, or you - or you just - or you say that that meeting didn't happen? Ms Carr: I don't recall. 681 Another example is when Ms Carr was taken in cross-examination to notes she had made of what was said at the meeting on 3 May 2016. One read "manipulate a story". As to what that meant, Ms Carr's evidence was: "I don't recall" (T1069). Ms Carr also qualified some of her evidence by saying "unless it's in my affidavit" (T1065) and made several comments such as "sorry, did I write that in the affidavit?" (T1066). 682 That acknowledged, I accept Dr Spry's submission that it was only to be expected that Ms Carr would have some problems with more specific recall given that she was describing events that had occurred some years earlier and in her prior workplace. 683 However, two inconsistencies between Ms Carr's oral evidence and her affidavit cannot simply be explained away in that manner. 684 The first is that in her affidavit, Ms Carr had stated that: I was not aware until preparing this affidavit that Benham [Roohizadegan] was proposing to bring legal proceedings against TechnologyOne. 685 In cross-examination Ms Carr conceded that she had read Ms Gibbons' email dated 24 April 2016. It had included a statement that Mr Roohizadegan was considering such action. Ms Carr nonetheless stood by her affidavit (T1061). 686 I reject that her explanation for that circumstance (as set out above) is plausible, but I am unpersuaded that this is explained by dishonesty rather than ill-judged stubbornness on her part. 687 There is a second inconsistency that requires more detailed attention. 688 In a part of her affidavit that had been redacted so that the relevant evidence might be given viva voce, Ms Gibbons accepted that she had deposed that on 3 May 2016: Although the La Trobe University deal still had to be resolved the executive team decided to proceed to terminate Benham [Roohizadegan]'s employment with TechnologyOne as soon as possible. 689 Once she had made that concession however, Ms Carr continued to give emphatic evidence that the truth was "Adrian [Di Marco] was the decision-maker" and that "everyone agreed with the decision and came to a consensus about the decision, but no one else in that room could make the decision but Adrian [Di Marco]" Her unshaken evidence was that in preparing her affidavit she had made a "poor use of words". Ms Carr conceded that what she had stated in her affidavit was not correct. 690 In the event, albeit with some hesitation, I am satisfied I should accept Ms Carr's explanation. While her affidavit is plainly to the contrary I am prepared to find that that was an unfortunate, if egregious, error: rather than that Ms Carr was lying in her evidence in cross-examination. I reach that conclusion because her evidence of the processes of decision making as given in detail in her cross-examination makes no sense unless it is true that Mr Di Marco, whilst willing to engage his Executive Team in discussion regarding Mr Roohizadegan's future, reserved to himself the ultimate decision. 691 That however adds a twist to the tale. A conclusion that Mr Di Marco was the sole decision maker renders of very little consequence the evidence Ms Carr gave of her understanding that a final decision had been made by TechnologyOne on 26 April 2016, and that from that point onwards it was not possible that Mr Roohizadegan would not be terminated. 692 Ms Carr's evidence includes references to Mr Di Marco raising the prospect that TechnologyOne might be able to redeploy Mr Roohizadegan in a different role: despite his having earlier emphatically stated that Mr Roohizadegan had to go. Her own affidavit evidence was that the final decision was made on 3 May 2016 (albeit that the decision should have been attributed to Mr Di Marco rather than the Executive), and that at the meeting she had attended on 3 May 2016 Mr Di Marco was still contemplating the possibility of offering Mr Roohizadegan continuing employment: albeit in a different position. Against those circumstances I cannot accept that Ms Carr could have known that Mr Di Marco's ultimate decision to terminate Mr Roohizadegan had already been made. 693 If reinforcement of that commonsense observation is needed, I note that Ms Carr's own evidence is that on 3 May 2016 she had repeated her advice to Mr Di Marco that there should be an investigation of the allegations against Mr Roohizadegan if he was thinking of dismissing him. Why, one might ask, would Ms Carr have proffered such advice at that time if the outcome was already to her knowledge pre-ordained? Ms Carr did not strike me as a person given to quixotic, pointless gestures. 694 Subject to those observations, I am satisfied that I am entitled to accept Ms Carr's evidence as the truth as she understood it to have been.

[55]

Ms Gibbons 695 Ms Gibbons gave her evidence-in-chief by way of an affidavit (Ex R41, CB421-432). Her evidence is that she had been a HR business partner within TechnologyOne from August 2011 to May 2017. She had been "responsible for approximately for 250-300 people". In that capacity she had had direct dealings with Mr Roohizadegan. In 2014 the role of HR business partners had changed, requiring them to be more visible at a state level. From that time she had regularly travelled to Melbourne. She had built a relationship with Mr Roohizadegan's team in Melbourne. She had left the company in May 2017 because she had been there for nearly six years and had needed a change. 696 Ms Gibbons' evidence confirms that she had been asked in 2015 by Ms Carr (or a Ms Catherine Bartlett who had previously been employed as HR director, but I take it that it is not in dispute that I can proceed on the basis that it was Ms Carr) to start recording information regarding Mr Roohizadegan's behaviour. She had been told that there were many issues of concern about his management of the Victorian sales team. 697 In conformity with that request, she made file notes of matters relevant to it. The first entry was about an employee: Graham Fink. Her evidence with respect to that employee is as follows: 18. Graham Fink was employed into the Victorian sales team and subsequently failed is probation period. My file note states that Graham called Martin [Harwood] to discuss why he had failed his probation period because Behnam had told him that it was Martin's decision. 19. I am aware that Martin advised Graham that the termination of Graham's employment was solely Behnam's decision, and that he (Martin) did not get involved in the Regional Manager's decision at that level. 698 She also made file notes regarding her interactions with Mr Con Tsalkos, Mr Mark Lawlor (which I infer is an alternate spelling of the Mr Mark Loler about whom Mr Roohizadegan and Metcalfe gave evidence) and Mr Baxter. In respect of Mr Lawlor, her evidence is: 25. Richard [Metcalfe] had reported that Mark was not performing his role to the required standard. It was intended that Mark would begin a formal performance management process. 26. Richard conducted the first performance management meeting with Mark. During that meeting with Richard, Mark explained that he did not want to interact with the [sic] Benham at all. Mark explained to Richard that Behnam left him in fear of his position and indicated that if he did not bring in the sales he was budgeted to achieve he would be fired. 27. Mark subsequently contacted Richard and asked for a settlement deed. Mark also told Richard that he was taking medication for work related stress. 28. After make the file note from my conversation with Richard, I spoke with Martin about the situation with Mark. However, a formal investigation into Mark's allegations against Benham was not undertaken. 699 The only instance of Ms Gibbons recording anything in respect of Mr Roohizadegan's "behaviour" which was not based on information conveyed to her by others was in respect of Mr Baxter. It was as follows: 29. I retained an email about David Baxter in the file about Behnam. TechnologyOne has a car park policy that allows all senior leaders to receive a parking space. However, I became aware that David Baxter didn't have a parking space and I was trying to facilitate a car park space for him with Behnam. Behnam had not yet organised one and in his response email to me, he said 'if you, Richard or anyone else wants to run my region and deliver you are most welcome to it!'. I found his tone unprofessional, unnecessary and belittling … 700 Ms Gibbons' evidence was that "a trip was planned" for her to conduct a focus group discussion in Melbourne on 18-20 April 2016. Her evidence is: 30. … The employees did not want to discuss issues in the focus group meeting. However, during this period, most of the sales team in the Victorian team asked me to have a private conversation with them. Every person in the Victorian team that I had a discussion with, except Amit Sion and Joanne Ravescroft, spoke out against Benham. I made a file note of my discussions with the Victorian staff to be included in the file. A copy of my contemporaneous file note of staff feedback about Behnam is attached and marked as 'RG-4.' I discus this feedback below. 701 Ms Gibbons' note of those discussions was tendered as part of Ex R42, and is at CB5503. It is as follows: Staff Feedback Simon Dugina - Felt had had been caught in the Bass Coast crossfire i.e Behnam feeling he was banned from going. Simon had asked Marie Phillips to review an email which Behnam took exception to. Simon felt he would be pushed out by Behnam due to this as he felt people crossed Behnam got moved on. Questioned how we could say we have a great culture but allow for behaviour like Behnam's Daryl - was given an account that used to be Amit's. Behnam was waiting for him to fail with this account as he felt Amit was the only one who could get the deal over the line. Told Daryl if he won the deal it was due to Amit, if he lost the deal then Daryl would have lost a dead cert. Daryl couldn't win. He didn't feel supported by the Regional General Manager who was meant to be here to guide and support him to be successful. Maureen handed some accounts to T1 Direct, Behnam took them back and handed them to Amit. He did not tell Maureen why he did this just berated her for handing them to T1 Direct in the first place. Maureen felt it was a poor culture where people tried to keep their head down. Patrick - Felt he was undermined and made to feel rubbish at his job. I witnessed the Sales Meeting - questioning in a public forum the way he was handling his accounts. Patrick reference an email that was cc'd to many people where he felt Behnam belittled him. Personal view in isolation not that bad but as it was ongoing could amount to belittling. Shane - not performing, advised he told me he was taken into BR's office a while ago and told if you don't hit your numbers this year you won't have a job. 702 Ms Gibbons' evidence-in-chief with respect to her visit on that occasion refers to the following additional matters: There had been two team members to whom she had not spoken (paragraph [36]). Maureen [Eldridge] had told her she had felt Mr Roohizadegan "was playing games with her" and she did not understand his leadership style (paragraph [39]). When she had met Patrick [Conron] he had been "physically shaking" when he had been talking about his experiences with the Victorian team. She had witnessed a sales meeting in which Mr Roohizadegan had questioned everything that Mr Conron had done over the course of a 45 minute meeting in a manner she had considered "belittling" (paragraphs [41] and [43]). Amit Sion had said he had found it bizarre that Mr Roohizadegan had had no say in a decision (made by Mr Metcalfe or Mr Ivancic) to reallocate one of his accounts to Darryl [Moir]. His view was that Mr Roohizadegan should be allowed to run the region as he wanted to (paragraph [53]). 703 Ms Gibbons' evidence is that she had given Mr Ivancic a general overview of what the team members had said, and he had responded "yep that is how it is" (paragraph [55]). Mr Ivancic had told her that he could not build a relationship with Mr Roohizadegan as an equal. Mr Roohizadegan had to be in charge of everything (paragraph [57]). He told her he had responded on one occasion to Mr Roohizadegan by saying "if you speak to me again like that Benham, next time I will be expecting a dog chew" (paragraph [58]). 704 She had "observed the situation with Benham had deteriorated in the Victorian office since Mr Ivancic had started". She observed that the Victorian sales team appeared to fear for their roles under Mr Roohizadegan. 705 She also had had a conversation with Mr Roohizadegan. Her evidence as to that conversation was as follows: 61. Following my scheduled focus group meeting with the team, Behnam requested to see me. Behnam asked me to tell him the details of what the team had said in the focus group. I gave Behnam general feedback however, I deflected Behnam's request for specific details and I did not disclose any details of the focus group discussion or my private meetings to Behnam. Whilst Behnam's request for detailed feedback was not inappropriate, I felt uncomfortable giving it to him because I would not have trusted his reaction after I left. 62. I recall that Behnam discussed the Bass Coast Shire incident with me. Behnam told me that he felt bullied by Peter Sutching, General Manager for Local Government. 63. Behnam referred to the email trail dated 11 April 2016 to 12 April 2016 about the Bass Coast Shire presentation and said to me that he thought Peter was bullying him due to a comment Peter made in an email about being 'over this behaviour'. There were many people cc'd on this email and Behnam asked for my view on whether he was being bullied. A copy of the email trail that Behnam was referring to about the Bass Coast presentation, including Peter's comment, is attached and marked 'RG-5'. I advised him that TechnologyOne had a policy on bullying and that he should review the policy and decide whether he wished to pursue a claim of bullying. 64. During my discussion with Benham about Bass Coast Shire, he told me that there was some history between him and Marie Phillips, Local Government Industry Manager and that he considered that Marie was 'gunning for him'. Behnam told me that Marie wanted him removed from the business because he fired a friend of hers from TechnologyOne. 65. Behnam also told me that he thought Martin was the driving force behind him not being allowed to attend the Bass Coast Shire presentation and he didn't think Stuart would be playing a part in it. 66. I cannot recall Behnam saying that he was being bullied by Marie, Stuart or Martin. I believe he only made that claim against Peter. I also deny that I told Behnam that Peter's behaviour was unacceptable. I have read the conversation that Behnam has attributed to me in paragraph 18A of his Further Amended Statement of Claim. I do not believe anything to this effect was said. 67. Whilst I still sat with Behnam in his office, I sent him an email with a link to the TechnologyOne bullying policy so he could read it and decide if he wanted to make a formal complaint against Peter … 706 Ms Gibbons' evidence-in-chief is that when she returned to Brisbane she had called Kathy [Carr] on 24 April 2016 and had given her the "highlights" of what she had discussed with the various team members and managers in the Victorian sales team. Ms Carr had asked her to put her observations in writing because she would need to bring them to Mr Di Marco's attention. She had done so shortly afterwards. Her email is part of Ex R42, and can be found at CB5580-5581. It is in the following terms: Hi Kathy, As discussed, please find a recap following my recent trip to the Melbourne office. Whilst I intended to catch up with the sales team, every single one of them who was there asked me to catch up with them individually, before I even had a chance to organise anything. It is apparent that there is a real cultural issue within the office, which mainly comes down to them being in fear of their jobs. Whilst a couple of them are not performing, the stress that they are under is clear to see. Shane was in tears talking to me as he has [sic] is regularly threatened with his job. Following my conversation with Shane, I spoke to Boris who confirmed that Shane is really feeling the pressure and he stated that he would not be surprised if he went on stress leave, which I am inclined to agree is a likely scenario. Whilst speaking to Patrick Conron it was clear he was displaying signs of anxiety. He told me he is often belittled by Behnam usually in a public forum some of which is verbally, some of which is on email. Simon Dugina is the longest serving sales guy, excluding Amit. Whenever I have visited previously, and even whilst conducting the focus group, he has had little engagement with me. On this occasion he requested that we catch up but not in the office (he did not want Behnam to see him speaking to me). He told me that he [sic] the reason he has not engaged previously is because the best way to "survive" in the Melbourne office is to keep "your head down". However, he felt the situation in the office has become untenable and that he needed to say something. Again, the issue raised were that the office is run on a culture of fear. As the CAM who was running Bass Coast he feels that he unnecessarily got caught in the cross fire of Behnam not being able to attend. He gave me a number of examples of the culture of fear. Simon is a solid performer, who is on track to hit club this year and he is also building a good pipeline. When I asked him if he enjoyed working for T1, his response was that we are a great company, have a fantastic office and we produce great products but he struggles to be proud of working for us when we appear to allow such a culture of fear, intimidation, bullying and passive aggressive behaviour. He asked me outright whether we as an organisation think it was acceptable to know about Behnam's behaviour and do nothing about it? He stated the impression in Vic, not just in the workplace but our reputation in the marketplace, is that we allow this behaviour to continue and just turn a blind eye as the figures have been so good there in previous years. Almost everyone stated that the culture has got worse since Boris started. When I questioned why they think this was, they feel that it is because Boris is very capable and therefore Benham feels threatened. His way to respond is to try and control them all even further. The feeling is that Benham undermines Boris at every opportunity i.e. when he recently went on the cycling trip in Asia he told the team both Boris and Amit were in charge. I spoke to Boris and asked him how he was settling into the role and he confirmed everything I had been told. He felt he was not allowed to operate as a capable manager, he did regularly feel undermined and he felt that the team operated in a controlled culture of fear. I asked him what this mean for him and his future with Tech One, he also felt that the company accepted this behaviour so he was unsure. My perception is that he is a very real flight risk if nothing is resolved in the office. A point to note is that the team all spoke very highly of Boris as a leader and from a sales engagement perspective, they just felt he was not allowed to operate at his potential. I did catch up with Benham whilst I was in the office. I did not raise any of the issues as I feel that would have placed the team at risk of their jobs. Whilst in conversation with Behnam, it was clear why the team felt intimidated and within fear of their roles. Even when some of the team have had successes he felt that this was due to the role himself and Amit had played as opposed to their own engagement with the customer. He also told me he is considering a bullying claim against Peter Sutching in reference to a comment in an email that stated he was "over this behaviour". He told me he was considering legal action due to this. It was also apparent he blamed HQ for not hitting his numbers and was not taking any accountability himself. I believe that most of the sales team are a flight risk, even the relatively new people such as Maureen and Darryl. Everyone had great things to say about Tech One as a company but unfortunately, they are struggling to be proud to work for us due to the perception that we allow such behaviour to continue. I believe the team would be happy to speak to Martin or Stuart directly to discuss these issues, however they are in such fear of their jobs I believe they would need assurance that it is in confidence. Thanks Rebecca 707 Ms Gibbons' evidence-in-chief is that on 25 April 2016 she had received an invitation from Mr Di Marco's Executive Assistant to attend a meeting of the Executive Team the next day. When she arrived the meeting had already started. She had not initially been aware that those present had seen her email to Ms Carr. She had "talked the executive team though [her] email". 708 Ms Gibbons' evidence is that Mr Di Marco asked her to clarify a few points regarding Simon [Dugina], because he was the longest serving member of the team (paragraph [71]). She recalls him as having expressed concern that there was such negative feedback from the whole team. Ms Gibbons' evidence is that in response, she had stated her opinion that Mr Di Marco's concern was justified because the team members had approached her rather than her having had to seek them out for feedback. 709 Ms Gibbons' evidence-in-chief then refers to Mr Di Marco having asked her to "reiterate" what Peter [Sutching] had said in his email to Mr Roohizadegan. She had done so (paragraph [71]). 710 Ms Gibbons' evidence is that on or around 3 May 2016 she was then asked to draft the communications plan to terminate Ms Roohizadegan's employment. 711 In cross-examination, Ms Gibbons conceded that in 2015 she had recorded the following remarks as having been made by made by members of the Victorian sales team about Mr Roohizadegan: Benham Roohizadegan - He provides encouragement and gets hands ons [sic] with opportunities, very good in terms of helping with opportunities, close deals. Getting his time can be challenging but he is very good - I see him as a mentor, he has taught me the world of sales, he has helped me to grow my market, expand deals, the learnings he has provided to me have been invaluable. - Great at his job, can be authoritarian in his management style, this may be a cultural thing. You just have to work around it, I have immense respect and an element of control .. the Kevin Rudd factor. - The introduction of Richard has been fantastic, as we have grown as a region it is hard to get his assistance because he is so stretched. - he is motivating and supportive, he can also be tough. He is successful so I can't not respect that. Has a lot of good qualities, tells it how it is but i accept it as being part and parcel of dealing with him - Some people get his attention, others don't..he has been great for me, very patient. Everyone wants his knowledge and assistance, but because I am not revenue generating I am not always a priority (Spelling and punctuation as in original). 712 Ms Gibbons also conceded that the message she sent to Mr Roohizadegan on 11 April 2016 regarding the purpose of her visit to Melbourne later that month (Ex A30, CB5211) had identified that purpose as being, inter-alia, to conduct ABC ratings for the sales teams and to catch up with him and Mr Ivancic about some performance issues they had raised. She had not referred to her having any intention to conduct a focus group. Ms Gibbons denied that she had omitted to mention that because she was intent on misrepresenting the purpose of her visit (T714, line 11-T715, line 6). 713 Ms Gibbons denied that she had found it unusual that a group of employees had approached her individually and separately to make complaints against Mr Roohizadegan. That had not suggested co-ordination between those employees to her (T729, line 1). 714 Ms Gibbons conceded that, contrary to her evidence-in-chief, she had not taken any contemporaneous notes of her discussions with the Victorian staff members in 2016. Her evidence in cross-examination was that she could not remember when she had written the document at CB5503 relative to those discussions (Ex R40, CB5503), although it was "shortly afterwards". Her evidence in cross-examination was as follows: Mr Tracey: … You agree with me that your recollection of the conversations you had with those people was based on your memory, rather than notes you took at the time you spoke with them? Ms Gibbons: Yes. Mr Tracey: So you agree with that? Ms Gibbons: Yes. Mr Tracey: Yes. And you would agree with me that using your memory in that way is a less accurate way of recording what somebody says …? Ms Gibbons: No. Mr Tracey: … than notes. It's a less accurate way than written notes of recording what somebody says to you, isn't it? Ms Gibbons: I don't agree in this context. Mr Tracey: So you're saying that your memory is so perfect that it can actually rival written notes as an accurate record of conversations that you've had with people? Ms Gibbons: No. Mr Tracey: So in other words, you must agree with me, must you not, that your memory is not as effective as a written note? Ms Gibbons: Yes. Mr Tracey: Yes. Could the witness please be shown volume 9, which I think you still have, Ms Gibbons. And I will ask you, in volume 9, please, to turn to page 5503, and if you could look at that document, Ms Gibbons, do you understand that as a document? Ms Gibbons: Yes. Mr Tracey: Did you prepare that document? Ms Gibbons: Yes. Mr Tracey: And what would you describe it as? Ms Gibbons: It was a summary of the conversations that I had with each individuals. Mr Tracey: When did you prepare that? Ms Gibbons: The computer - this particular version was prepared - I can't recall the specific dates. Mr Tracey: Well, you met these employees when? It was in April, wasn't it …? Ms Gibbons: Yes. Mr Tracey: … 2016? Ms Gibbons: It would have been shortly after meeting the individuals. 715 Ms Gibbons conceded that she had not made any record of the additional things she claimed the staff had said in her affidavit sworn 21 December 2017 referred to at [702] above. However, she denied that she had invented statements such as that which she had later attributed to Ms Eldridge to over-emphasise the negative feedback she had received and so to assist TechnologyOne in this proceeding. Thus in cross-examination Ms Gibbons gave, inter-alia, the following evidence: Mr Tracey: And if you have a look at paragraph 41 of your affidavit over the page, you see in reference to Patrick Conron - so this is you referring to your meeting with Patrick Conron over a year before: When I met with Patrick, he was physically shaking when he was talking to me about his experiences with Behnam. No mention of that either, is there … ? Ms Gibbons: No. Mr Tracey: … in your staff feedback notes? Ms Gibbons: No. Mr Tracey: Something that you would surely record if he was, in fact, doing that; that's right, isn't it? Ms Gibbons: Not necessarily. I don't agree. Mr Tracey: Well, I suggest to you that, like these other matters, you've made them up in order to overemphasise the negative comments that these people have made about Behnam? Ms Gibbons: That's not correct. Mr Tracey: And you've done that because you perceive that that is necessary to support your employer at the time, TechnologyOne? Ms Gibbons: TechnologyOne weren't my employer at the time of December 2017. Mr Tracey: Well, you've - so you've done that to support TechnologyOne; do you agree with that? Ms Gibbons: No. 716 Ms Gibbons however later conceded that her affidavit was sworn substantially in the same form as it had been drafted, with the assistance of a lawyer, before she had resigned from her employment with TechnologyOne: His Honour: Can I just - you say you were no longer with TechnologyOne. How did you prepare a draft of your statement? Ms Gibbons: The draft occurred at the time I was at TechnologyOne. His Honour: Right. So the - and, in preparing the draft …? Ms Gibbons: Sorry? His Honour: … how did the draft - how was the draft prepared? Ms Gibbons: I worked through with the - I can't recall if it was a lawyer or somebody external worked through my affidavit. His Honour: Yes. Mr Tracey: So you're saying that this affidavit, Ms Gibbons, was in draft form at the time you left TechnologyOne, was it? Ms Gibbons: I can't recall. Mr Tracey: Well, when you were at TechnologyOne - when you were still employed there, were you asked by anybody to prepare an affidavit? Ms Gibbons: Yes. Mr Tracey: But you didn't swear this affidavit until December 2017 after you had left; is that right? Ms Gibbons: Yes. Mr Tracey: So the contents of this affidavit in draft form was substantially the same as it was when you swore it in December 2017? Ms Gibbons: Yes. Mr Tracey: So, in other words, when I asked you earlier about whether you were preparing your evidence to assist TechnologyOne's case, this was substantially in this form at the time you were an employee of TechnologyOne, wasn't it? Ms Gibbons: Yes. 717 Ms Gibbons also made a concession with respect to Mr Shane Cagney. It will be recalled that in the email she later sent to Ms Carr on 24 April 2016, Ms Gibbons reported (despite it not having been mentioned in her earlier note) that Mr Cagney had been in tears regarding his job being threatened: the clear inference being that this was a result of Mr Roohizadegan's behaviour. She conceded that Mr Cagney had reported not to Mr Roohizadegan, but rather directly to Mr Ivancic. She further conceded she had been aware that Mr Cagney was being performance managed by Mr Ivancic: Mr Tracey: Now, if you look at your email, in the third paragraph beginning with: Whilst a couple of them are not performing. …? Ms Gibbons: Yes. Mr Tracey: You say: Whilst a couple of them are not performing, the stress that they are under is clear to see. Shane was in tears talking to me, as he is regularly threatened with his job. … ? Ms Gibbons: Yes. Mr Tracey: You don't mention that in your staff feedback notes, do you? Ms Gibbons: No. Mr Tracey: Now, just is [possible transcription error] an aside, Shane Cagney was actually being managed by - performance managed by Boris Ivancic, wasn't he, not Behnam? Ms Gibbons: Managed by Boris. Yes. Mr Tracey: Yes, but he was reporting directly to Boris, wasn't he? Ms Gibbons: Yes. 718 Ms Gibbons further conceded that when conveying Mr Conron's complaints in her email to Ms Carr she had omitted to mention the qualification she had recorded in her own notes with respect to an email he had shown her, being: "personal view in isolation not that bad" (T732, lines 1-12). 719 Ms Gibbons then conceded that what she put in her email to Ms Carr amounted to mere allegations against Mr Roohizadegan, which as a HR professional she knew required investigation. She maintained that she did not know whether there had been any such investigation: Mr Tracey: You would agree with me that everything you put in that email amounted to mere allegations by people against Behnam, didn't it? Ms Gibbons: Yes. Mr Tracey: And as an HR professional, you know that allegations need to be treated cautiously by an employer, don't they? Ms Gibbons: Yes. Mr Tracey: And before any findings are made about allegations against a particular person, you need to have an investigation? Ms Gibbons: Generally, yes. Mr Tracey: Yes. You need to take evidence from - or witness statements from the people who make the allegations? Ms Gibbons: Generally, yes. Mr Tracey: Yes. You need to - and bear in mind we're talking here about a publicly listed large company. You need to make sure that an investigation is independent, don't you? Ms Gibbons: Yes. Mr Tracey: And that sometimes means hiring an investigator external to the business or the company, doesn't it? Ms Gibbons: No. Mr Tracey: Well, in a case of serious allegations against a senior staff member, that's good HR practice, isn't it? Ms Gibbons: Generally, yes. Mr Tracey: Yes. And the person against whom - especially - any employee against whom allegations are made should have the allegations put to him or her, shouldn't - that should happen, shouldn't it? Ms Gibbons: Yes. Mr Tracey: And they should have a chance to respond to those allegations, shouldn't they? Ms Gibbons: Yes. Mr Tracey: And they should be entitled to respond in person sometimes; is that right? In a meeting? Dr Spry: Well, I do object to this comment, your Honour. It's simply not relevant, in our submission. There has been no basis to suggest that - in any way, that Mr Roohizadegan had an entitlement to procedural fairness or natural justice. His Honour: No. But it is relevant to whether or not the true reason for his dismissal was as he gives evidence of or otherwise. Dr Spry: Yes, your Honour. Mr Tracey: So Behnam - or someone like Behnam, against whom allegations are being made of this - well, you agree that these are serious - allegations of a serious kind? Ms Gibbons: Yes. Mr Tracey: Yes. They're not allegations in respect of which findings should be made lightly, are they? Ms Gibbons: No. Mr Tracey: And you need cogent evidence to prove allegations like that, don't you? Ms Gibbons: Yes. Mr Tracey: And a person like Behnam should be entitled to meet, with a support person, with the company's management, shouldn't he? Ms Gibbons: Generally, yes. Mr Tracey: Yes. And he should be able, in that meeting, to respond to the allegations? Ms Gibbons: Yes. Mr Tracey: And he and employees who have allegations made against them should be able to comment on any proposed findings of an investigation, shouldn't they? Ms Gibbons: Yes. Mr Tracey: And also, comment on any proposed disciplinary action to be imposed in respect of those findings; that's right, isn't it? Ms Gibbons: Yes. Mr Tracey: You agree that, in the case of Behnam, none of that happened, did it? Ms Gibbons: I don't know. Mr Tracey: Well, you worked at TechnologyOne in the HR area until May 2017, didn't you? Ms Gibbons: Yes. Mr Tracey: That's a year after Behnam was terminated? Ms Gibbons: Yes. Mr Tracey: You know for a fact, don't you, Ms Gibbons, that there was no such investigation into these allegations against Behnam? Ms Gibbons: No, I don't. Mr Tracey: That's the fact, isn't it? Ms Gibbons: No. Mr Tracey: Are you suggesting that there was an investigation of the kind that I've just referred to? Ms Gibbons: No. No. Mr Tracey: And that's because there wasn't, was there? Ms Gibbons: I don't know. His Honour: Well, if it wasn't you, who else might have organised one? Ms Gibbons: Kathy Carr. 720 Ms Gibbons' evidence in cross-examination as it related to Mr Roohizadegan having raised his own bullying complaint was as follows: Mr Tracey: And you then said to him, "Is there anything you would like to discuss with me?" You said that to Behnam? Ms Gibbons: Not that I recall. Mr Tracey: He says that you did ask that and he said, "Yes", and he said, "I feel like I'm being marginalised. I'm being undermined". He said that, didn't he? Ms Gibbons: Words to that effect, yes. Mr Tracey: And he referred to Stuart MacDonald in that connection? Ms Gibbons: No. Mr Tracey: Are you sure about that? Ms Gibbons: Yes. Mr Tracey: Well, he says that he told you: I know Stuart is new, but in the last week or so, I was stopped by Martin Harwood and Stuart MacDonald to attend an important presentation to Bass Coast Shire Council, and I was stopped doing my job. That's what he told you, isn't it? Ms Gibbons: Yes. Mr Tracey: And he said he was prevented doing his job to go and attend the presentation at Bass Coast? Ms Gibbons: Yes. Mr Tracey: And he said he told you that he told them, that is, Martin and Stuart, that if they didn't want him to go to Bass Coast, let his sales manager go. Do you remember him saying that? Ms Gibbons: No. Mr Tracey: And he says that he told you that they, that is, Martin and Stuart, stopped the sales manager going as well. Do you remember that? Ms Gibbons: No. Mr Tracey: He said that he believed that Mr Stuart MacDonald had made the decision about who would attend the Bass Coast presentation on the recommendation of Peter Sutching. Remember he said that? Ms Gibbons: No. Mr Tracey: And he also referred to Marie Phillips, didn't he? Ms Gibbons: Yes. Mr Tracey: And he said that Stuart had made a decision to prevent him doing his job, most probably because of the recommendations or decisions of other people in his region like Marie Phillips, Peter Sutching and Martin Harwood. He said that? Ms Gibbons: No. Mr Tracey: You responded - I withdraw that, sorry. He also told you that he felt he was being bullied by Marie Phillips in 2015 and as well as in '16? Ms Gibbons: No. Mr Tracey: He said to you, "Have you seen my emails on this subject?" That's what he said, isn't it? Ms Gibbons: He did. Mr Tracey: The subject being being bullied by Marie Phillips. That's right, isn't it? Ms Gibbons: No. Mr Tracey: What was on this subject that you agreed with me he said to you? Ms Gibbons: Regarding the Bass Coast account and him being stopped from going. Mr Tracey: Yes, and Marie Phillips being involved in that? Ms Gibbons: Yes. Mr Tracey: And you said that you hadn't seen the emails and didn't know about those things? Ms Gibbons: Yes. Mr Tracey: He said that, "Stuart is calling my people under me, organising meetings without my knowledge. Do you consider this as bullying?" He asked you that? Ms Gibbons: No. Mr Tracey: And you said, "Yes, it is unacceptable"? Ms Gibbons: No. Mr Tracey: And he said, "In that case, TechnologyOne has a duty of care towards me". That's what he said, isn't it? Ms Gibbons: No. Mr Tracey: And you told him that you would send him a bullying form, that is, a form to make a complaint about bullying? Ms Gibbons: Yes. Mr Tracey: You told him that? Ms Gibbons: Yes. Mr Tracey: And that was because he was telling you that he was being bullied, wasn't it? Ms Gibbons: Being bullied, yes. Mr Tracey: Yes. He said TechnologyOne has a duty of care to him and he had been raising these concerns through his emails. Remember he said that? Ms Gibbons: No. Mr Tracey: And he said he was really frustrated by this time. "If TechnologyOne doesn't do anything about it, because I've been raising these complaints, I might take legal action against TechnologyOne and these individuals". That's what he told you, isn't it? Ms Gibbons: Yes. 721 I interpolate that in re-examination, Ms Gibbons' evidence was that the person Mr Roohizadegan had specifically nominated in his complaint about bullying had been Mr Sutching. Her evidence was that Mr Sutching had been employed at a level below him. 722 Ms Gibbons accepted that the first time she had mentioned the events in Melbourne to Ms Carr was when she had phoned her on Sunday 24 April 2016, during the Anzac Day long weekend. Ms Gibbons accepted that that had been unusual because she did not usually work on a Sunday. It was then that Ms Carr had asked her to summarise her report in an email. In re-examination, Ms Gibbons explained she had telephoned Ms Carr on a Sunday because she had thought what she had been told was significant and Ms Carr needed to know what had happened in Melbourne. 723 Prior to that re-examination however, Ms Gibbons had conceded that before speaking to Ms Carr she had already taken other steps. On 21 April 2016 she had been asked by Mr MacDonald (Ex A65, CB5558-5568) to calculate Mr Roohizadegan's "STI". She had understood STI to refer to Mr Roohizadegan's short term incentives. In response, on the same day, she had informed Mr MacDonald that Mr Roohizadegan received seven percent of the region's profits. Later that day, she had also provided Mr MacDonald with Mr Roohizadegan's actual earnings since financial year 2015. She had also sent him a copy of Mr Roohizadegan's resume. She had advised Mr McDonald in a covering email: "Please note, whilst profit has increased, the licence fees in the region have decreased". 724 Ms Gibbons conceded that on 15 March 2018 she had raised concerns with TechnologyOne that her credibility might become "associated" with this case (Ex A64). Her evidence regarding why she had expressed such concerns about her perceived credibility was addressed as follows in re-examination: His Honour Yes, now, Dr Spry, you were the taking witness to … Dr Spry: Yes, to A64 … His Honour: Yes. Dr Spry: … which is an email dated … His Honour: Yes. Dr Spry: 15 March 2018. Have you got that, Ms Gibbons? Ms Gibbons, you will see in the second paragraph of that email, you say: I've been made aware that Behnam has contacted a Woolworths employee and notified them of my involvement in this case. How did you become - how were you made aware? Ms Gibbons: The employee informed me. Dr Spry: And what did they tell you? Ms Gibbons: That he had sent them a LinkedIn message saying that I couldn't be trusted and that I was involved in this case and I had made lies about him. Dr Spry: And who - that - was that significant to you, that he had done that? Ms Gibbons: Yes. Dr Spry: And why was that? Ms Gibbons: I had not long been employed by Woolworths. And I thought he was trying to bring my credibility into question with a new employer. Dr Spry: And why did you think that? Ms Gibbons: Based on previous interactions with him, that it was something he would do. 725 Ms Gibbons' cross-examination ended on the following note: Mr Tracey: But you would agree that this document shows you sending a message to [Ms Narelle Darmen, a TechnologyOne employee] …? Ms Gibbons: Yes. Mr Tracey: … at that time and on that date, 9.58 on 18 May? Ms Gibbons: Yes. Mr Tracey: And you say: Quick one. If Behnam comes looking for me, can you not tell him in Vic, please. … ? Ms Gibbons: Yes. Mr Tracey: And do you agree with me that that's the date that Behnam's employment was terminated? Ms Gibbons: I don't know. I don't know what date his employment was terminated. Mr Tracey: You know his employment was terminated, don't you? Ms Gibbons I do. Mr Tracey: What - doing your best, what do you understand was the day he was terminated? Ms Gibbons: I don't know a date. Mr Tracey: What month? What week? Ms Gibbons: I would say May but I don't know. Mr Tracey: I will put to you that that's the termination date. I suggest that you sent that message because you knew it was the date he was being terminated and you wanted to avoid him; that's right, isn't it? Ms Gibbons: I can't recall. Sorry. Mr Tracey: You knew he was going to be terminated before it happened, didn't you? Ms Gibbons: No. Mr Tracey: No? Ms Gibbons: No. Mr Tracey: You've given evidence in your affidavit that you were involved in preparing the communication plan for his termination? Ms Gibbons: I knew the - yes, sorry. I knew there was going to be a termination. Mr Tracey: Yes? Ms Gibbons: Yes Mr Tracey: That's right. Your Honour, that's the cross-examination. 726 Regarding the credit of Ms Gibbons, the Applicant submits that: 7.26 Ms Gibbons was a very unsatisfactory witness whose own evidence contained significant and numerous inconsistencies. In particular, there were a number of inconsistencies between Ms Gibbons' affidavit evidence and the annexures to her affidavit evidence in relation to her meeting with various employees of the Victorian office on 20 April 2016. These inconsistencies include, for example, Ms Gibbons saying in her affidavit evidence that on 20 April 2016, Mr Dugina told her that he felt that his job was "on the line" (CB428). Ms Gibbons does not, however, refer to this comment in what she says are contemporaneous notes of that conversation (CB5503, T720 at 4 to 6). The list of inconsistencies goes on. 7.27 What emerged from cross-examination of Ms Gibbons was that her email of 24 April 2016 embellished and exaggerated what employees in Victoria told her about the Applicant. In other words, she presented to the First Respondent's senior management an inaccurate account of what was being said to her, and one that overemphasised the allegedly negative aspects of the Applicant's management of those staff. 7.28. In light of the above, the Court should treat Ms Gibbons' evidence, including her 24 April 2016 email, with great caution. She is an unreliable and discredited witness. 727 The Respondents submit that: Ms Gibbons gave her evidence clearly and precisely. She had done a lot of work within the Victorian region and was able to explain by reference to her notes, the issues raised by other staff within the region that related to the Applicant. Ms Gibbons' role was independent to that of the Applicant. She ceased employment with Technology One in May 2017 (CB4222). Further, Ms Gibbons denied under cross-examination that she was sent down to Melbourne by the executive team to set the Applicant up (T723). Ms Gibbons was objective and has no motive not to tell the truth and there is nothing to suggest that the complaints made to her, and recorded in her email of 24 April 2016 (CB5576-5577) were not genuine. The Applicant's theory that Ms Gibbons was sent to Melbourne by the executive team to set the Applicant up was not put to the members of the executive team. Further, the Applicant sought to discredit Ms Gibbons because of her concerns about being involved as a witness in this matter (T735). Ms Gibbons' concerns came about following [the] Applicant contacting an employee of Ms Gibbons' new employer in an attempt to discredit Ms Gibbons (T741). The Applicant's conduct reflects very poorly on him and shows that when he perceives someone has crossed him, he recognises no boundaries. Ms Gibbons' evidence is credible and should be accepted. 728 As will be evident from the passages extracted above, a number of aspects of Ms Gibbons' evidence in cross-examination were significantly damaging to her credibility. It is not unfair, viewed as a whole, to summarise it as a train wreck. 729 Dr Spry submits that I should find that the Applicant sought to discredit Ms Gibbons because of her concerns about being involved as a witness in this matter, and that I should take that into account. I understand Dr Spry to rely on Ms Gibbons' evidence in reply to the effect that her being concerned about her credibility becoming an issue in this case was expressed in response to Mr Roohizadegan having contacted a fellow employee of Ms Gibbons' new employer to suggest that Ms Gibbons could not be trusted and that she had made up lies about him. Dr Spry submits that Mr Roohizadegan's conduct in that regard reflects very poorly on him. It shows that when he perceives someone has crossed him, he recognises no boundaries. I understand Dr Spry to submit that in consequence I should find Ms Gibbons' evidence to have been credible, and should accept it. 730 I reject that submission. The evidence on which I rely on to draw adverse conclusions as to Ms Gibbons' credit is independent of anything that Mr Roohizadegan might have later done or said. 731 Moreover, Ms Gibbons' evidence with respect to this issue was given only in reply. The proposition that Mr Roohizadegan had acted vindictively towards Ms Gibbons was not put to him in cross-examination, when it had been open to Dr Spry to have cross-examined him about any general want of respect for boundaries. I reject that it would have been open to Mr Tracey to seek to reopen the Applicant's case to call further evidence on this point. Ms Gibbons' evidence was simply hearsay, although it was admissible to explain her conduct. I am satisfied that I am entitled to proceed on the basis that the relevance of Ms Gibbons' evidence in reply was limited to explaining her evidence as had been adduced in cross-examination going to her concern about her credit being put issue in this case. For that purpose, her evidence in reply had to be accepted. I have therefore drawn no adverse conclusions as to Ms Gibbons' credit on that basis. 732 However assuming Mr Roohizadegan did act vindictively by reporting his concerns to her current employer, I reject the proposition that Ms Gibbons is open to be described simply as a person who had "crossed him". She had done much more. 733 I accept Mr Tracey's submission that what emerged from cross-examination of Ms Gibbons was that her email to Ms Carr of 24 April 2016 had embellished and exaggerated what employees in Victoria had told her about the Applicant. I accept his submission that Ms Gibbons' email presented the First Respondent's senior management with an inaccurate account of what had been said to her, and one that overemphasised the allegedly negative aspects of the Applicant's management of those staff. 734 Even excusing that Ms Gibbons' email (see at [706] above) omits any mention of the fact that she had not interviewed all of the Melbourne sales team and that at least one member of the sales team she had spoken to had provided her with positive feedback Ms Gibbons' account of what was said by those who had expressed negative views omits crucial contextual details relevant to any fair understanding of their circumstances. Thus her email did not identify that Mr Cagney, who she describes as having been in tears out of fear of losing his job, had reported directly to Mr Ivancic rather than Mr Roohizadegan and had been put on performance management by him. 735 Significantly, the email added to and inflated that which Ms Gibbons' own note of her discussions with those staff had recorded (CB5503). 736 It may be accepted that if Ms Gibbons had forwarded her earlier note (assuming for present purposes that what Ms Gibbons recorded in that note as is located at CB5503 can be accepted itself to be accurate) directly to Ms Carr as her summary of what had been told by the five staff members, it might be thought to have revealed some matters of potential concern for TechnologyOne: including instances of alleged poor conduct by Mr Roohizadegan. Those matters would arguably have required further investigation. It is however inconceivable that the content of such an email, had it then been forwarded to Mr Di Marco by Ms Carr, could have prompted him (even hyperbolically) to later refer to it as one of the worst emails he had received in his life. 737 Further, to the extent that Ms Gibbons' email to Ms Carr purported to convey Mr Ivancic's views, his evidence of their exchange was to a substantively different effect. I have no hesitation in preferring his account. 738 I am satisfied that by the time Ms Gibbons came to make her affidavit she also was prepared, as cross-examination revealed, implausibly to further salt the ground against Mr Roohizadegan. I reject that it is open to the Court to accept that Ms Gibbons had any accurate recall of the additional adverse things she later included in her affidavit as having been said to her, but which she had not earlier recalled in her note or email to Ms Carr. Her want of capacity for accurate recall was manifested in her evidence that Mr Sutching had been employed at a level below Mr Roohizadegan. Mr Harwood gave evidence that Mr Sutching and Mr Roohizadegan were at the same level within TechnologyOne's hierarchy. Given his much longer history with TechnologyOne, I accept that evidence. 739 Ms Gibbons' evidence in cross-examination was that she knew that good HR practice required there to be a formal investigation of the (inflated) serious complaints she had reported to Ms Carr as having been made against Mr Roohizadegan. 740 I find that Ms Gibbons' refusal to concede in cross-examination that she had known that no such investigation had been undertaken was resisted in disregard of her knowledge of the truth. I make that finding having regard to the following circumstances. Ms Gibbons emailed her account to Ms Carr in the late afternoon of Sunday 24 April 2016. She did so in the knowledge that three days earlier Mr MacDonald had asked her to send him information which, as an experienced HR practitioner, she must have known or reasonably suspected related to the prospect that Mr Roohizadegan might be dismissed. The following day was a public holiday, Anzac Day. Ms Gibbons then attended a meeting of TechnologyOne's Executive Team on the morning of Tuesday 26 April 2016. During that meeting she was asked to speak to her email. In the aftermath of that meeting she was then tasked by Ms Carr to work on the communication plan for Mr Roohizadegan's termination. Ms Gibbons at all relevant times remained TechnologyOne's HR business partner responsible for the Victorian region. In those circumstances I am satisfied that had any investigation of the allegations she had reported as having been made against Mr Roohizadegan occurred prior to his dismissal, Ms Gibbons would have been aware of that. I find Ms Gibbons knew that no such investigation had been conducted by herself or anyone else within TechnologyOne, and her assertion of her want of knowledge on that account was an untruth. 741 My poor impression of Ms Gibbons' credit was reinforced by her hapless reply to Mr Tracey when he put to her that she had made up things in her affidavit to support her employer at the time, TechnologyOne. Ms Gibbons' first response was that TechnologyOne had not been her employer when she had sworn her affidavit. I took Ms Gibbons' response to be an implied claim of impartiality by reason of her having had no connection with TechnologyOne at the time she had committed herself to that evidence. As noted above at [716] however Ms Gibbons was later compelled to concede that her affidavit had been sworn in substantially the same form as it had been drafted, with the involvement of a lawyer, at a time when she had still been employed by TechnologyOne. I therefore reject Dr Spry's submission that I should accept Ms Gibbons' evidence as being independent because she had ceased employment with Technology One in May 2017. 742 A further example of what has led me to be highly sceptical of Ms Gibbons' credit is the changing evidence she gave regarding why she had not taken any notes at the time she spoke individually to the five employees in Victoria: notwithstanding that taking contemporaneous notes was her usual practice when meeting with employees in her HR role at TechnologyOne (T715-716). In re-examination Ms Gibbons explained that she did not take her notebook to those discussions, as she "thought it was just an informal coffee catch-up" (T742, line 7). When the Court asked Ms Gibbons whether she could have taken the same view with respect to five separate informal coffee catch ups, Ms Gibbons then gave quite different evidence. Her evidence was that she had not taken notes because she had "believe[d] that, because they felt that their jobs were at risk, if I started making notes, they wouldn't have been as open with me" (T742, lines 19-20). Ms Gibbons' latter explanation need not be accepted for it to be concluded that she initially had offered evidence incapable of acceptance. 743 I am also entitled to disbelieve Ms Gibbons' evidence as to her knowledge of when Mr Roohizadegan had been dismissed. Ms Tracey put to Ms Gibbons that she had sent a message to a TechnologyOne employee at 9:58am on 18 May 2016 (the date of Mr Roohizadegan's termination) in the following terms (T738): Quick one. If Behnam comes looking for me, can you not tell him in Vic, please. 744 Ms Gibbons' evidence was that she did not know whether or not that was the date on which Mr Roohizadegan's employment was terminated. I do not consider her evidence in that regard to be plausible, not least because she had been involved in drafting the communications plan which had set the time at which Mr Di Marco was to send a companywide email advising of Mr Roohizadegan's termination. 745 Ms Gibbons was a very unsatisfactory witness. I am not satisfied that I am entitled to find her to have been a witness of the truth. Save where her evidence is corroborated by other evidence which I accept, or where her evidence supports a finding adverse to the Respondents who called her as their witness, I reject that I am entitled to rely on it.

[57]

Mr Chung 750 Mr Chung gave his evidence principally by way of three affidavits together with their annexures. The first affidavit was, by consent, partially redacted. That first affidavit, sworn 15 December 2017, was received as Ex R68 (CB520-554) on the basis that it was true and correct subject to certain clarifications he had later made. The annexures to that affidavit were received as Ex R69. 751 Mr Chung's second supplementary affidavit sworn 20 March 2018 in which those clarifications appear was received as Ex R70 (CB556-560). A single annexure to that affidavit was received as Ex R71 (CB9677). 752 His third affidavit, sworn 4 September 2019, annexes what the parties and the Court refer to as the confidential court book. It was received as Ex R72 (CCB1-83). 753 Mr Chung's evidence is that he is the Chief Executive Officer (CEO) of TechnologyOne, having been appointed to that position on 23 May 2017 upon the retirement (in that role) of Mr Di Marco. He had been Chief Operating Officer for TechnologyOne from February 2016 until his appointment as CEO. Prior to that he had held the position of Operating Officer Products and Solutions for approximately 16 months, after having been Operating Officer Corporate Services and Chief Financial Officer for the business. 754 His evidence is that at the time Mr Roohizadegan commenced his employment with TechnologyOne it had had 13 regions within the service delivery stream. Those regions were: "Qld, Vic, NSW, SA, WA, ACT, Tas, NZ-NTH, Malaysia, UK, SEAP, Distributers and STM-Sales". In 2007 another region was added: NZ-STH (CB523, paragraph [3]). 755 Mr Chung's evidence was that STM-Sales was a reference to TechnologyOne's Student Management Services, which I have earlier abbreviated to SMS. It was a separate "region" because of the uniqueness, size and complexity of the student management deals. After 1 October 2010, by which time the other regions had grown to be able to lead such deals, SMS deals had been included in the profit and loss of the other regions from which they had emanated. From that time, and for that reason, STM-Sales was no longer recorded as a separate region (CB523, paragraph [4]). 756 Mr Chung's more detailed evidence about how TechnologyOne had dealt with revenue from SMS sales was as follows: 103. Prior to 1 October 2010, licence fees earned from student management services (SMS) products were not included in the calculation of Regional Managers' incentives. All SMS were controlled in a separate specialised region of the TechnologyOne business. 104. All Regional General Managers, including Behnam, were given a copy of the Royalty Rules each financial year. The Royalty Rules set out the budget rules for each financial year by apportioning the revenue for each TechnologyOne product. Prior to 1 October 2010 (i.e. FY10), SMS was a separate region. According to the Royalty Rules for the 2010 financial year, States retained 0% of the License Fees sales for the SMS product. The Royalty Rules also show that the SMS business paid royalties of 35% to R&D and 5% to Head Office and retained 60% of the License Fees sales for those financial years, much like the States did for other TechnologyOne products. This meant that Behnam, as the Regional General Manager for the Victorian Region, was not entitled to have revenue from the Victoria TAFE SMS deal allocated to the Victorian region. That report shows that Student Management revenue was allocated to the STM Sales region and that no student management revenue was allocated to the Victorian region. A copy of the Royalty Rules for 2010 financial year is attached and marked as 'EC-18'. 105. After 1 October 2010, the SMS product was sold through the regions and the Regions retained a percentage of the License Fees sales for the SMS product, similar to other products from the 2011 financial year onwards. A document created for the purposes of my affidavit shows the royalty split for the 2011 financial year is attached and marked as 'EC-19'. … 108. After 1 October 2010, the new SMS licence fees were included on the profit and loss statements to the State in which the client was situated and as such, were considered for the purposes of paying incentives to the Regional General Managers. A copy of the Budget Instruction for financial year 2011 dated 31 July 2010 is attached and marked as 'EC-21'. A copy of the Budget Instruction for financial year 2010 dated 31 July 2009 is attached and marked as 'EC-22'. 109. The 2011 Budget Instructions dated 31 July 2010 at page 3 lists the major changes from the prior year. It says: "From 2011 onwards, new student management license fees will now be recognised through the regions. We are in the process of developing a new royalty split". 757 Mr Chung's evidence of Mr Roohizadegan having complained to him about not having been paid incentives based on the Victorian TAFE SMS deal was, inter-alia, as follows: 110. The Victorian TAFE SMS deal commenced in the 2010 financial year and was contracted to progressively deliver over four years. Under the terms of the Victorian TAFE SMS contract, $16 million in licence fees would be paid across the duration of that contract, equating to approximately $4 million per year. 111. I recall in March 2010 that Behnam raised a concern about not receiving an incentive payment for the Victorian TAFE SMS deal. Behnam complained that the licence fees for the Victorian TAFE SMS deal should have been reported on the '03-VIC' revenue reporting line rather than the established arrangement of reporting it on the separate revenue reporting line of the student management region. This deal was done by the SMS sales team. At no time did Behnam say that he was contractually entitled to an incentive payment on the basis of the Victorian TAFE SMS deal. I believe he did not say this because he knew he was not entitled to an incentive payment on the Victorian TAFE SMS deal. At the time, he had worked for TechnologyOne for almost 4 years and knew what he was and was not entitled to. 758 Mr Chung's evidence is that Mr Roohizadegan had not been happy with his response and had escalated his concerns first to Mr Harwood and Mr Phare and then to Mr Di Marco. His evidence in that regard was as follows: 114. Behnam was not happy with the answer he received from Martin and Roger, as he escalated his concern to Adrian. I understand that Adrian also responded to Behnam that the SMS licence fees were payable only to the student management region reporting line and that Behnam was not entitled to an incentive payment for the licence fees for the Victorian TAFE SMS deal. 115. I am aware that Behnam was not happy with Adrian's response and pushed the issue further. This behaviour was not uncommon for Behnam because he would often ask Roger, Martin, Adrian and myself for the same thing in the hope that one of us would say yes. 116. From 2010 Behnam relentlessly continued to complain about the crediting of the Victorian TAFE SMS licence fees but never once alleged any breach of contract during his employment. In response to Behnam's continuing complaints, I recall that even though Behnam was not entitled to receive an incentive payment for the TAFE SMS licence, Adrian authorised that 10% of the licence fees for the 2010-2014 financial years would be apportioned to the '03-VIC' reporting line . That meant that those fees would be calculated as part of the Victorian revenue and therefore contribute to its profits on which Behnam's incentives were paid. Attached and marked 'EC-23' is a spreadsheet apportioning 10% of the Victorian TAFE SMS revenue to Victoria. In my view, Adrian agreed to give 10% of the Victorian TAFE SMS revenue to Victoria to shut Behnam up because of Behnam's persistent complaining. Behnam seemed placated by Adrian's decision because he stopped complaining about the Victorian TAFE SMS licence fees after that. 117. Behnam was aware that Victoria would receive 10% of the Victorian TAFE SMS deal. Attached and marked 'EC-24' is a copy of an email from Behnam dated 4 January 2010. 118. To the best of my knowledge, no one else from the regions in TechnologyOne received an incentive payment arising from an SMS licence deal prior to 1 October 2010. Despite this, Behnam would call me often to complain that he believed his region was entitled to 100% of that revenue. 119. Even when TechnologyOne changed the policy so that SMS sales responsibility was transferred to the regions Behnam continued to raise issues with SMS incentives. 759 Mr Chung's evidence is that even if Mr Roohizadegan was entitled to receive incentives on SMS deals prior to 1 October 2010, the amount to which he would be entitled was $2,060,680.56. That was a significantly lesser amount than that to which he had claimed an entitlement in paragraph [76] of his Further Amended Statement of Claim (CB545, paragraph [122]). 760 Mr Chung's more general evidence as given in chief is that as Regional General Manager for Victoria Mr Roohizadegan had been responsible for the business activities and profitability of the region "03-Vic" (CB524, paragraph [3]). He had met Mr Roohizadegan shortly after his joining TechnologyOne as Operating Officer Corporate Services and Chief Financial Officer. His evidence as to his then interactions with Mr Roohizadegan was as follows: 7. My interactions with Behnam were frequent because he would contact me seeking approvals for financial parameters of customer deals in my capacity as Chief Financial Officer. Behnam also frequently contacted me to complain about matters, particularly those that affected his profit and loss for the Victorian Region (P&L) and his remuneration. For example, Behnam would complain about costs in his P&L as well as people and systems that he perceived as getting in the way of him winning business. 8. My perception of Behnam was that he never took no for an answer and he pushed the boundary on everything. For example, I remember that Behnam purchased a new Mercedes Benz vehicle and he approached me to ask if TechnologyOne would pay for it for him. I recall that I was first taken aback by this request but when I thought about it, I was not surprised because Behnam's style was to ask for everything and hope he got something. 9. I recall attending a few client negotiations with Behnam and I felt embarrassed by his conduct because there were instances where he would almost beg until he got the answer from the customer he was after. Behnam's negotiation style was to interpret a 'yes' perfectly clearly, however he would jump on anything other than a 'no' and he would say things like 'so you agree then?' or 'will you sign here?' I can recall one customer interaction with Graeme Jane who represented Catholic Education Commission of Victoria where Graeme became frustrated and said to Behnam words to the effect of 'fuck Behnam, just to be clear- I don't agree.' 761 His evidence is that each region had two streams: sales and consulting. As Regional General Manager Mr Roohizadegan headed both, but his "main job" was to manage the sales staff in the region. His sales team had grown from three staff in 2006 to nine in 2016. Some had reported directly to Mr Roohizadegan. Others had reported directly to Mr Ivancic, Regional Sales Manager, who in turn had reported to Mr Roohizadegan. Mr Chung's evidence is that from his discussions with Ms Bartlett (who was, as I have earlier noted and as Mr Chung confirmed in re-examination, HR Director prior to the appointment of Ms Carr) and "some recruiters" he had been made aware that TechnologyOne had had difficulties in filling sales positions because of Mr Roohizadegan's "poor reputation in the market". Five positions had been open for recruitment between 1 January 2016 and 31 May 2016 within the sales team in Victoria (CB525, paragraphs [10]-[11]). 762 Mr Chung's evidence as to Mr Roohizadegan's entitlements to incentives included the following: 13. Prior to 2015, all Regional Mangers, including Behnam were paid short term incentives on the Profit Before Tax of their region and not on License Fees Revenue growth. This meant that even if License Fees Revenue was neutral or declining, profit could continue to go up because ASM Revenue and Consulting Services Revenue continued as they were linked to previous licence sales. 763 Mr Chung's evidence was that Victoria was one of the three major regions for TechnologyOne, the others being Queensland and New South Wales. Together, those regions constituted two thirds TechnologyOne's licence fee revenue. The key component of business growth was revenue generated from licence fees. TechnologyOne had aimed to grow the business by 10-15% each year. 764 Mr Chung's evidence regarding Mr Roohizadegan's history as it related to his relationship with Mr Di Marco was as follows: 17. From my perspective, Adrian Di Marco and Behnam had a very interesting relationship. I perceived that this was the case because Adrian is a very commercially driven and entrepreneurial individual and Behnam had similar traits. I considered that Behnam was one of Adrian's favoured employees because he had successfully grown the Victorian region from FY06 to FY13. I observed that Adrian's perception of Behnam was swayed by Behnam's ability to manage upwards because Behnam was always very charming towards Adrian. 765 Mr Chung's evidence is that contrary to TechnologyOne's expectation of 10-15% annual growth, Victoria had experienced two consecutive years of "compound negative growth" in licence fees in financial years 2014 and 2015. As a result, Victoria had had the lowest compound annual growth for the regions over the period FY13 to FY16 (CB527, paragraph [19]). 766 Mr Chung's evidence is that Mr Harwood was appointed as Operating Officer for Sales and Marketing in late 2014. In that capacity he had become a member of TechnologyOne's Executive Team, of which Mr Chung was already a member. The Executive Team met every Monday. Mr Harwood had "often identified Victoria as the region that was not growing". Mr Chung gave further detail as follows: 21. During these executive meetings Martin raised his concerns with the executive team that Behnam was not the right person for the business. I recall that there were conversations (between five to ten) where Martin advised the executive team that Behnam could not build a sales pipeline and could not build a team. A sales pipeline in this context means that Behnam could not demonstrate that he had secured future licence sales for the Victorian region. I recall Adrian's reaction to Martin's concerns about Behnam was that we needed to have a 'plan B' by appointing a 2IC who could potentially take over Behnam's role. 22. I recall that Martin prepared the Board Report for the Board meeting on 13 May 2016 Board papers are prepared at least one month before the Board meeting takes place. Therefore, I understand that the board papers would have been prepared by Martin by mid-April. Attached and marked 'EC-5' is an extract of Martin's board report for the Board meeting on 13 May 2016. The relevant part of Martin's report was: 'The major risk I need to manage in Victoria for the second half is the size of the supporting pipeline. We feel confident about most of the deals above but the poor supporting pipeline must be addressed quickly to ensure we have adequate cover should any of these fail to close'. . 767 Mr Chung's evidence is that it had been to militate against the risks of managing the growth pipeline "mainly in Victoria but in other regions" that TechnologyOne earlier had decided to appoint Regional Sales Managers as part of a succession planning strategy, "in case the business lost one of the Regional General Managers" (CB528, paragraph [23]). 768 In Mr Roohizadegan's instance however, Mr Chung's evidence was that "we could see that he could not build a pipeline" and "we specifically recruited applicants with those skills and to potentially take over from [him]" (CB528, paragraph [23]). 769 Given Mr Chung's evidence, it is perhaps unsurprising that Mr Roohizadegan might have had some qualms about inviting in a Trojan horse to achieve that purpose. However, Mr Chung instead attributes Mr Roohizadegan's initial resistance to Mr Ivancic's appointment to a more banal reason: 24. I recall that the Regional General Managers in both Queensland and New South Wales responded well to the decision to appoint Regional Sales Managers because they saw it for the opportunity that it was, which was to build their business and scale up their region. On the other hand, Behnam became very protective and controlling of his region and he was focused on the cost to his P&L of having to pay for a Regional Sales Manager. 770 In respect of Mr Harwood's specific role regarding Mr Roohizadegan and planning for his potential replacement, Mr Chung gave the following evidence: 42. It was apparent to the executive team that Martin tried to change Behnam's behaviour and the culture of the Victorian office prior to when Stuart took over the Operating Officer role. Martin had spent a lot of time in the Victorian region and he had told the executive team about the decision to hire Boris Ivancic as a direct report into Behnam to help build succession. I recall that Martin actually travelled to Victoria for the interviews when they were recruiting for Boris' position because Behnam was not effective at hiring and would say silly things during interviews that would put applicants off. I observed that Martin was very hands on in trying to change the culture in the Victorian region because he kept us informed during the executive team meetings. 771 As to Mr Roohizadegan's management style, Mr Chung's evidence was as follows: 34. I received feedback from Gareth Pye, Reaylene Woolley and others in the TechnologyOne business that Behnam was a micro-manager and that he was very old fashioned in his approach with the staff. A specific example of this feedback was from Nilesh Singh who told me a story of how, through his employment with TechnologyOne, Behnam would arrive in the office and be escorted from the front door to his office by his executive assistant, Joanne Ravenscroft. Joanne would then unlock the door for Behnam and serve his tea or coffee. I considered this practice of Behnam's to be very old fashioned. 35. In my experience, Behnam is a very polarising individual in that people tend to either love him or hate him because he has a personality type that can rub people the wrong way. I received complaints from some of his staff members as early as 2007, who did not appreciate his micro-management style. I recall that early on in our professional relationship, I approached Behnam and suggested that he needed a mentor to coach him on how to better manage his team but he became so offended by my suggestion that I backed off. Complaints about Behnam's management style never crystallised until around April 2016 when the HR team went to the Victorian region and reported back about a number of serious staff complaints. 772 Mr Chung's evidence is that Mr Roohizadegan had kept a very tight control of the internal costs of running the Victorian office: descending to requiring his staff to justify their photocopying, and those from other regions to pay for their own stamps. He had understood him to have been resistant to buying Friday night drinks. Mr Chung's evidence is that he considered Mr Roohizadegan had controlled costs so tightly because his personal remuneration was based on the region's profit and loss results (CB531-532, paragraphs [36]-[40]). 773 Mr Chung's evidence is that while the Executive Team had known for some time of problems in Victoria, Ms Gibbons' email about her visit to Melbourne in late April 2016 had been the catalyst for the Team terminating Mr Roohizadegan's employment "when it did" (CB533, paragraph [48]). I take Mr Chung's evidence at paragraph [51] (CB534) to acknowledge that he had spoken to Ms Gibbons about what she had observed in Melbourne prior to the meeting of the Executive Team at which her email was discussed. 774 Mr Chung's evidence-in-chief regarding what had subsequently occurred during the meeting of the Executive Team held on 26 April 2016 was as follows: 53. At the 26 April 2016 meeting, everyone gave their opinion about the issues that were identified in Rebecca's email. I do not recall the specifics of who said what, but there was a consensus that the situation had been building in Victoria and that Rebecca's email confirmed the extent of that situation. The executive team agreed that the situation in Victoria was particularly bad and that something urgently had to be done to repair the situation. … 55. There was a discussion in the 26 April 2016 meeting with the executive team that Behnam could sense what was going on. In my view, Behnam was street smart and he felt that with the introduction of Boris, he was losing control. It was broadly acknowledged by the executive team that Behnam was a 'control freak' and he was very paranoid. At that time, the executive team was made up of Stuart MacDonald, Adrian Di Marco, Martin Harwood, Roger Phare and Tony Ristevski. 56. The executive team agreed at the 26 April 2016 meeting to terminate Behnam's employment, but no decision was taken as to how and when Behnam's termination of employment would take place. Adrian approved the termination decision. There were also discussions at the 26 April 2016 meeting about the La Trobe University deal and that the business had to make sure that deal would happen if Behnam was no longer with the business. 57. I recall that in the 26 April 2016 meeting, the executive team discussed getting together a deed and a communications plan for Behnam's termination. I emailed myself a note in the early hours of 28 April 2016 as a reminder that I needed to follow up on the deed for Behnam's termination. A copy of my email reminder to myself is attached and marked 'EC-9'. Later that morning, I sent an email to Kathy Carr asking her about the deed and communications plan. A copy of my email to Kathy and her response dated 28 April 2016 is attached and marked 'EC-10'. 58. I was not aware at the time of this meeting that Behnam made a complaint to Rebecca Gibbons on 20 April 2016 threatening to bring legal proceedings because of alleged bullying by Martin, Stuart, Peter or Marie. I only became aware of this when I read the draft Further Amended Statement of Claim on 4 December 2017. This was not discussed in the 26 April meeting or at any other time when I was present. Behnam's previous claims for alleged unpaid incentive payments for Student Management Services was also not discussed at the 26 April meeting or at any other meeting I was present in which the termination of Behnam's employment was discussed. This was not a factor that was in my mind when concluding Behnam had to go. 775 Mr Chung's evidence is that there was a further meeting of the Executive Team on 3 May 2016. He could not recall the specifics of what was discussed, but he had made a file note which read "No doubt Benham has to go" (CB535, paragraph [61]). 776 His evidence of what then had occurred is as follows: 64. On 6 May 2016, Rebecca emailed Stuart and copied to me a copy of a Communications Plan in relation to the termination of Behnam's employment. A copy of an email dated 6 May 2016, discussing a communication plan is attached and marked 'EC-13'. 65. I recall that Kathy, Rebecca, Stuart and I prepared for the termination of Behnam's employment and Stuart had booked flights to go to Melbourne to dismiss Behnam. I do not recall with certainty the date that Stuart was booked to fly to Melbourne but I believe that it was before the State Managers meeting on 11 and 12 May 2016 and that Stuart's trip may have been planned for 9 May 2016. 66. Stuart, Kathy and I spoke to Adrian to advise him that everything was in place to terminate Behnam's employment. Adrian stopped the planned termination of Behnam's employment. I do not recall the date that he did that but I think it was 8 May 2016. 67. Adrian's response to our meeting was that we had not given Adrian enough time to consider the termination plan and management of it. Therefore, he was not yet ready to terminate Behnam's employment. 777 Mr Chung's evidence is that he had been aware that the Executive Team was still working through the La Trobe University deal. That was the main reason why the process was stalled. 778 Mr Chung's evidence is that while he had not himself witnessed it, he later became aware of a confrontation that had occurred between Mr MacDonald and Mr Roohizadegan during TechnologyOne's State Managers meeting on 12 May 2016. He had spoken to Mr Roohizadegan immediately afterwards: 75. I recall that Behnam passed my office and I waved to him. Behnam came into my office and I noticed that Behnam was shaking. 76. I recall that Behnam told me that he and Stuart had discussed the La Trobe University deal and that it was a 'tough' conversation. Specifically, he said words to the effect: 'I have never been spoken to like this before', he also said that he was 'deeply hurt'. 77. I recall that Behnam did not tell me exactly what was said in the meeting but he did say that there was swearing and raised voices. 78. I do not recall discussing Behnam's email at all. 779 Mr Chung's evidence is that later that day he had spoken to both Mr Pye and Mr MacDonald. They had recounted their versions of what had happened. Mr Pye had told him that it had been a tense meeting that had escalated rapidly, but that both men had participated equally. Mr Chung's evidence is that he had advised Mr MacDonald that he should call Mr Roohizadegan because the latter had been "in pretty bad shape" when he had spoken to him. 780 He had soon become aware that Mr Roohizadegan had complained to Mr Di Marco about Mr MacDonald's behaviour. He had been in Mr Di Marco's office and had heard Mr Di Marco express the view that "it was just two guys having a run in and everyone should just get back to work" (CB539, paragraph [86]). He believed Mr Di Marco had also told Mr Roohizadegan that he would investigate his concerns further. 781 Mr Chung's evidence is that those events impacted on planning for Mr Roohizadegan's termination: 90. The blow up between Stuart and Behnam on 12 May 2016 meant that the timing of Behnam's termination of employment should be sooner rather than later. Stuart was Behnam's manager and Behnam could not work under Stuart. The decision had been made before, but now a line needed to be drawn and for people to move on. Adrian sent an email to Stuart, Kathy and Jennifer McCarthy on Friday afternoon, 13 May 2016, advising that he wanted to talk with us about 'when/how' Behnam's employment would be terminated. A copy of an email dated 13 May 2016 is attached and marked 'EC-17'. 782 Mr Chung's evidence is that on 17 May 2016, the day before Mr Roohizadegan was dismissed, he had had yet a further discussion with Mr Di Marco about whether TechnologyOne was doing the "right thing" in terminating him. 783 Mr Chung's evidence is that their discussions were to the effect that "although we had been told about what was happening in Victoria we needed to hear for ourselves and be confident that there was solid evidence to back the claims that were made about [Mr Roohizadegan]" (CB536, paragraph [69]). Mr Chung's evidence is that he followed that discussion up by making some enquires of a TechnologyOne employee named Nilesh who worked in an unidentified role and Mr Ivancic. Those enquiries had satisfied him there were tensions in that office. Mr Chung however gave no evidence that he told Mr Di Marco anything about that. 784 The balance of Mr Chung's evidence-in-chief as is set out in his three affidavits concerns financial evidence in relation to specific aspects of Mr Roohizadegan's disputed potential entitlements as have been put in issue in these proceedings., and his analysis of that evidence. 785 Having considered the import of the evidence given by the accounting experts called on their respective parts, Ms Grimley and Mr Lee, the parties have advised the Court they are agreed regarding the award the Court ought to make if it finds in Mr Roohizadegan's favour with respect to the aspects of both his contract and adverse action claims to which the financial evidence that Mr Chung has provided relates. The Court has so found. I note that in the latter instance, that agreement is subject to potential discounting for future contingencies. Nonetheless, in view of that broad agreement it is unnecessary to set out any further details of those aspects of Mr Chung's evidence. 786 In oral examination-in-chief Mr Chung was taken by Dr Spry to the events of 18 May 2016 when Mr Roohizadegan was dismissed. His evidence was that those in attendance at the meeting at which Mr Roohizadegan was dismissed had been himself, Mr Di Marco and Ms Carr. When Mr Roohizadegan arrived, he had told them he was ill and was attending against his doctor's orders. 787 Mr Chung recalled Mr Di Marco having told Mr Roohizadegan that he had done a great job over the past few years and that he had really enjoyed working with him, but that he had lost faith that he was the right person to grow the business and take it forward. His evidence continued: Dr Spry: And did Mr Roohizadegan say something in response or did anything happen further from Mr Di Marco? Mr Chung: After Adrian said that, Adrian handed Behnam an envelope. In the envelope was a deed and Adrian said, "It's a generous offer and it's not negotiable." Dr Spry: And did Mr Roohizadegan say anything? Mr Chung: Yes, yes. Behnam said that it will take him a long time to find a new job and Adrian responded to say that he would give him a glowing reference. Dr Spry: Did Mr Roohizadegan say anything then? Mr Chung: No. There was no more said by Behnam then. Adrian said that it had nothing to do with Stuart or it had nothing to do with Martin. It was that Adrian had lost faith in Behnam as the right person to take the business forward, to grow the business. That - that's - that's what he said. He also said that there had been some complaints made by his people and that was really the extent of the meeting. There was no more conversation about anything, really, after that. 788 Mr Chung's evidence is that the reference to "his people" concerned Mr Roohizadegan's Victorian sales team. His recall was that there were around 10 in that team at that time. 789 Mr Roohizadegan had left the meeting with Ms Carr. When Ms Carr returned she reported that Mr Roohizadegan had said he felt like jumping off a bridge. Mr Chung's evidence was that he had been shocked, but thought it may have been a "try on". Nonetheless, both he and Mr Di Marco had then tried to phone Mr Roohizadegan. They had got no response. 790 Mr Chung conceded in cross-examination that while he had referred to five Victorian sales positions having been open over the period from January to May 2016, it was not the case that all of those positions were open over the entire period. Rather, the situation had been that at some point during that period, one or more of those roles had been open. When it was put to him that one of those positions was that of Regional Sales Manager, he did not dispute Mr Harwood's evidence that Mr Metcalfe (who it will be recalled had occupied that role) had wanted to return to Tasmania for family reasons and that Mr Ivancic had commenced in the position shortly thereafter. 791 Mr Chung denied that the gravamen of his conversation with Mr Di Marco on 17 May 2016 was that at that point they did not know if there was a solid basis on which to terminate Mr Roohizadegan's employment. His response when that was put to him was that the purpose of their discussion was just to "make sure we are doing our final checks and balances before doing this" (T1149, lines 3-13). 792 Mr Chung however then accepted that even at that late stage, there may have been a "reversal". He maintained however, albeit perhaps awkwardly, that a final decision had already been made: Mr Tracey: There may have been a reversal. Exactly. So, in other words, at that point there still had not been a final decision to terminate him, had there? Mr Chung: No. I don't - I don't agree with that. I think the final decision was made. Mr Tracey: Even though there might have been a reversal? Mr Chung: There could be reversals of anything all the way to the end. Yes. 793 In cross-examination Mr Chung maintained, contrary to the evidence given by Mr Ivancic, that on 17 May 2017 Mr Ivancic: had told him that Mr Roohizadegan had mellowed in the last few weeks because he needed allies; had not referred to "judgment calls" on deals; and had told him that Mr Roohizadegan spoke badly about others. 794 Mr Chung maintained that notwithstanding that there had been no investigation as at 17 May 2016, there was at that time sufficient reason for TechnologyOne to have acted to dismiss Mr Roohizadegan because many employees had made allegations against him: Mr Tracey: Now, as at this point, 17 May 2016, there had not been an investigation by TechnologyOne into the allegations against Behnam by the Victorian staff, had there? Mr Chung: What do you mean by "investigation"? Mr Tracey: Well, the investigation that would normally be carried out by human resources at TechnologyOne when one employee makes an allegation against another? Mr Chung: Yes. We had already had enough evidence from Rebecca that there was many employees that had made allegations. Mr Tracey: Well, hang on a second. You hadn't put any of them to Behnam, had you? Mr Chung: No. Mr Tracey: So you couldn't be satisfied that any of those allegations had a reasonable basis without first putting them to Behnam, could you? Mr Chung: Well, there was - it was a number of people that put the allegations, all similar. Mr Tracey: And, what, that's enough for you to just assume that they're true, is it? Mr Chung: When a number of people do it, it does form the view. Yes. Mr Tracey: Not very fair, is it, Mr Chung? Mr Chung: Well, there was a majority of his staff put it to Rebecca. Mr Tracey: He has 80 to 90 staff working in the Melbourne office, doesn't he? Mr Chung: No. There are 80 to 90 staff in the office. Mr Tracey: That's what I said. He has 80 to 90 staff working in the Melbourne office? Mr Chung: Yes. But they don't … Mr Tracey: That is, the answer must be yes to that question, mustn't it, Mr Chung? Mr Chung: They don't report to him. … Mr Tracey: … Mr Chung, you were trying to minimise the number of people working in the office because, the reality is, is it not, is that Benham had interactions with about 80 to 90 people in his office every day …? Mr Chung: No. No. Mr Tracey: … throughout his employment? Mr Chung: No. He wouldn't have interactions every day with 80 to 90 people. Mr Tracey: No. Over the course of his employment of a given year, say, he would - he would have interactions with all 80 to 90 people, wouldn't he? Mr Chung: He would have with a - a lot of them, but I couldn't say 80 to 90 of them. Mr Tracey: Well, they're all there in the same office with him, aren't they? Mr Chung: No. No. Most of the consultants are out on field all the time. Mr Tracey: Well, they go back to the office, don't they? Mr Chung: Rare occasions, yes. Mr Tracey: Yes. The reality is that this - this group of individuals that you're referring to is just a small disgruntled bunch of individuals? Mr Chung: No. I don't believe that. Mr Tracey: And Mr Roohizadegan worked perfectly well with most people in the Melbourne office? Mr Chung: From my understanding of Rebecca's report back, his direct reports, the people he worked with, the majority of them were disgruntled. Mr Tracey: Well, no, the so called direct reports you're referring to are actually many - many of them report directly to Boris Ivancic at the time Rebecca Gibbons was referring to their allegations, don't they? Mr Chung: If you - if - if you know how the office operates … Mr Tracey: I'm not - no, not for you to ask me questions, Mr Chung? Mr Chung: Sure. Sure. Mr Tracey: I'm asking you the questions. Do you agree with this proposition, that most of these people directly report to Boris Ivancic, don't they? Mr Chung: No. No. Half to Boris, half to Benham. Mr Tracey: Half to Boris? Mr Chung: If you're talking direct reports, yes 795 Cross-examined regarding the events of 12 May 2016 Mr Chung's evidence is that when Mr Roohizadegan came to his office he had been shaking, and had said that he had never been spoken to like this before. He had told Mr Chung he was deeply hurt. His evidence, however, is that Mr Roohizadegan had not asked him about "the La Trobe email". Mr Chung's evidence is that he did not recall a conversation about any email (T1152, lines 1-22). 796 Cross-examined regarding what Mr Roohizadegan had said on the phone when he, Mr Di Marco and Ms Carr had called him the next day, Mr Chung denied that Mr Roohizadegan had said anything to the effect that: he wanted to work in an environment where he felt safe and did not want to be marginalised and humiliated; a lot of people in his Melbourne office were asking what had happened because people from Brisbane had called his staff to tell them Mr MacDonald had shouted and screamed at him; and he did not want to be undermined. 797 Mr Chung conceded that Mr Roohizadegan had said he did not want Mr MacDonald calling his staff one or two levels below to organise meetings with customers without his knowledge. However, Mr Chung denied that either he or Mr Di Marco told Mr Roohizadegan that they had instructed Mr MacDonald not to contact La Trobe anymore. Mr Chung acknowledged that when that call concluded Mr Roohizadegan had thanked them but had indicated that he was still expecting and waiting for Mr MacDonald to apologise to him. 798 Mr Chung denied having any recall of having participated in another phone call with Mr Roohizadegan later that day. The nature of an asserted call having been put to him by Mr Tracey, Mr Chung's repeated and emphatic evidence was that no such second call happened (T1154, lines 24-41). 799 Further cross-examined on this point however, Mr Chung then gave the following evidence: Mr Tracey: He - he said to you, "Can I go home?", and you said, "Yes"? Mr Chung: I don't recall that. Mr Tracey: It's possible he said that? Mr Chung: Possible he said that. Mr Tracey: Possible you - you responded yes when he said, "Can I go home?"? Mr Chung: Yes. Mr Tracey: It's possible that these other things were said, even if it wasn't during the call? Mr Chung: No. Mr Tracey: And you said to him, "Have you called Stuart?"? Mr Chung: I do remember having a conversation like that with him. Mr Tracey: And he said, "Why should I be calling Stuart?"? Mr Chung: No, I don't recall that. Mr Tracey: He said, "He's the one. I haven't sworn at him. I haven't belittled him. I haven't done anything to him. He's the one who should be calling me and apologise"? Mr Chung: I don't recall that. 800 The Applicant submits that: 7.51 Mr Chung revealed himself in the witness box to have an agenda of criticising the Applicant by his suggestion that the Applicant's threat of suicide was a "try-on". This was revealing of Mr Chung's own character. 7.52 Mr Chung's agenda and bias mean that the Court should prefer the Applicant's evidence over his evidence, where their evidence is in conflict. The Court should also prefer Mr Ivancic's evidence over that of Mr Chung, where their evidence conflicts 801 The Respondents submit that: Mr Chung was cross-examined for only a brief period of time. His credit was not challenged, and much of his evidence in chief was not challenged at all. No attack was made on Mr Chung's evidence in relation to SMS and as to why the Applicant was not paid incentives on SMS revenue prior to October 2010. Mr Chung's evidence should be accepted. His evidence as to what Mr Ivancic said to him on 17 May 2016 (T1149-1150) should be preferred to that of Mr Ivancic and the Applicant where their evidence differs from Mr Chung's (CB7548-7533). 802 For the reasons that follow, I am satisfied I ought to reject the main premises of both the Applicant's and the Respondents' submissions. 803 I reject the main premise of the Applicant's submissions because I am not satisfied that it is open to me to conclude that Mr Chung's opinion regarding Mr Roohizadegan's threat of suicide contaminates his evidence and demonstrates it to have been a product of bias. As I have earlier noted, Mr Roohizadegan was always at pains to avoid the degree of his pre-existing burden of distress becoming known to his employer. While in retrospect Mr Chung's opinion may appear heartless, in that context I reject that his holding it can be counted against him in respect of his credit. 804 I also reject the main premise of Dr Spry's submissions on behalf of the Respondents. The brevity of Mr Chung's cross-examination does not require the conclusion that Mr Chung's credit was not challenged. On three key matters, Mr Chung's evidence-in-chief was entirely consistent with the case pressed by Mr Roohizadegan in these proceedings: first, that the decision to terminate Mr Roohizadegan was taken by the Executive Team and not by Mr Di Marco alone; second, that even as late as 17 May 2016 Mr Di Marco remained unpersuaded that he had anything more than unsubstantiated staff complaints to justify Mr Roohizadegan's dismissal; and third, in relation to the contract claim. 805 Regarding the third matter, as the current CEO of TechnologyOne Mr Chung gave no evidence of any contextual circumstances as would have put Mr Roohizadegan on notice that the change of wording in his contract on 26 November 2009, such that it thereafter referred to his incentives being based on PBT performance for "Business Unit 03 - Victoria - Service Delivery", was mutually understood to have effected a substantive change to his remuneration in that respect by impliedly excluding SMS services. His evidence was simply that Mr Roohizadegan had complained about his not being paid incentives on SMS prior to 1 October 2010. His evidence in that regard went no further than to assert that Mr Roohizadegan did not express those complaints explicitly by reference to his contractual entitlements. It is hardly surprising that Mr Tracey did not cross-examine Mr Chung on those and several other matters that were not inconsistent with the Applicant's case. 806 In any event it is abundantly clear that Mr Tracey did put Mr Chung's credit in issue and in my opinion effectively so, in respect of his testimony that he had understood there to have been sufficient probative evidence to justify the dismissal of Mr Roohizadegan without an investigation. 807 Further, either Mr Chung's capacity for recall as affects what the Court can make of his evidence generally or his credit were plainly put in issue having regard to Mr Tracey's cross-examination in respect of Mr Chung's initial unequivocal and repeated denials that he had spoken to Mr Roohizadegan for a second time on 13 May 2016. Mr Chung's subsequent concession that Mr Roohizadegan had asked him whether he had called Mr MacDonald (and that it was possible Mr Roohizadegan had asked him if he could go home during such a second call) requires that one or both of those adverse conclusions be drawn. 808 My own impression of Mr Chung as a witness was that he approached giving evidence in this proceeding as a duty hanging-over from a former era he was obliged to undertake. It was all slightly distasteful. I took Mr Chung's evidence to establish that he had reservations about not only Mr Roohizadegan's management style, but also that of Mr Di Marco. His evidence as set out above at [764] entitles me to infer that he viewed both men as sharing similar, outdated, styles: their sharing of which had explained to him why they had bonded. I infer that what Mr Di Marco had seen in Mr Roohizadegan as being a positive - his never taking no for an answer and pressing customers until he got the answer he wanted (Mr Di Marco in his evidence in this proceeding refers to Mr Roohizadegan as having been a "real hunter") - by contrast had caused the more technocratic Mr Chung to feel embarrassed (see at [760] above). 809 It is in that context that I turn to what I should make of Mr Chung's evidence-in-chief that he was unaware at the time of the meeting of the Executive Team held on 26 April 2016 that Mr Roohizadegan had made a complaint to Ms Gibbons threatening to take legal proceedings because of alleged bullying by Mr Harwood, Mr MacDonald, Mr Sutching or Ms Phillips. His evidence is that Mr Roohizadegan's concerns about bullying had not been discussed at the meeting. Mr Chung's evidence is that he had only become aware of those complaints when he had read Mr Roohizadegan's draft Further Amended Statement of Claim on 4 December 2017. 810 Because that evidence stands unchallenged in cross-examination, I must accept that to have been the truth as he understood it. However, given that Ms Gibbons had included in her email that Mr Roohizadegan was considering taking legal proceedings against Mr Sutching for bullying, and given that Ms Gibbons' evidence is that she had also orally briefed the meeting to the effect that he had made a bullying complaint to her during her visit to Melbourne, Mr Chung's lack of awareness of Mr Roohizadegan's complaints must imply he gave little or no attention or was indifferent to the specifics of Ms Gibbons' email then before the Executive Team. 811 Mr Chung's inattentiveness to the detail of that meeting and what it concerned makes sense only if Mr Chung had an established prior disposition that Mr Roohizadegan was expendable. That he had such a prior disposition is self-confessed. His evidence is that "we could see he could not build a pipeline" and "we specifically recruited applicants" with the skills to take over from Mr Roohizadegan. Who the "we" might be is not identified. I am however satisfied that plainly it did not include Mr Di Marco, whose evidence in this proceeding was that he had continued to have faith that if Mr Roohizadegan received good mentoring "we could make it work". I infer that the "we" to which Mr Chung is referring is himself and Mr Harwood: the latter having already groomed or persuaded Mr Chung to the view that Mr Roohizadegan needed to go. 812 Even if I accept that Mr Chung, as TechnologyOne's present CEO, might want to protect its interests I reject the Applicant's submissions that I am entitled to conclude that he was committed to an agenda of damaging Mr Roohizadegan without any regard to the truth. In the end I am satisfied that while certain aspects of his evidence cannot withstand scrutiny, he was not wilfully seeking to mislead the Court. He just wanted it all over and to be out of it as soon as possible. 813 As to the specific aspects of Mr Chung's evidence that I am satisfied must to be rejected I find that, having regard to what is at least an established incapacity on the part of Mr Chung to recall relevant past matters fully, I am entitled to prefer Mr Roohizadegan's unshaken evidence of what was said during the first phone call in which they both participated on 13 May 2016 over the account of that call that Mr Chung gave in cross-examination. 814 I am also entitled to reject what I might term Mr Chung's "Schrodinger's cat" evidence that as at 17 May 2016 he had believed both that there may have been a reversal of the decision to terminate Mr Roohizadegan, and that a final decision had already been made. 815 I need not make an affirmative finding that I accept the precise terms of Mr Ivancic's evidence as to their conversation of 17 May 2016 in preference to that given by Mr Chung. It is sufficient that I observe that Mr Chung's limited capacity for present recall (as was established in cross-examination) entitles me to reject his version as the full extent of what was said. Moreover, even on Mr Chung's account of what Mr Ivancic allegedly said to him I am satisfied that his enquiries fell well short of providing TechnologyOne with solid evidence to back the claims made about Mr Roohizadegan in Ms Gibbons' email: the absence of which was a matter about which Mr Di Marco had been concerned. In any event, whatever were the terms of those discussions or his conclusions Mr Chung gave no evidence that he had reported those matters to Mr Di Marco.

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Executive search and recruitment 816 Mr Simms is an Executive Search Recruiter in possession of over 20 years of experience in representing and placing job seekers into commercial companies for reward. His instructions as provided to him by Mr Roohizadegan's former solicitors were to provide expert opinion on the types of roles for which Mr Roohizadegan would likely be suitable, based on a variety of assumptions and scenarios and at a number of differing dates. The various dates included dates prior to his termination to the present day and beyond, through to 2027 (when Mr Roohizadegan would on his instructions have reached his planned retirement age of 65). 817 The parties were not in dispute that there is a relevant field of expertise relating to executive search and recruitment, in respect of which Mr Simms was entitled to give opinion evidence. The parties agreed that Mr Simms was relevantly qualified to do so. There was however contest between them as to the admissibility of much of what was referred to in Mr Simms' as yet untendered report. In view of Mr Simms' limited availability as a witness, I gave an oral ruling in respect of the written parties' submissions in those regards on 11 October 2019. It is unnecessary to detail my reasons and rulings; they are as they appear at T339, line 31 to T343, line 12. In short, I ruled that much of Mr Simms' intended evidence was inadmissible. 818 Consistently with my rulings, Mr Simms' expert report was taken into evidence in a much redacted form as Ex A33 (CB9165-9183). The annexures thereto (as redacted) were received as Ex A34. Mr Simms' evidence-in-chief was simply to adopt his redacted report. 819 Mr Simms' evidence can be summarised shortly. It is that had Mr Roohizadegan not been summarily terminated he would have been highly attractive in the employment market relevant to his experience. 820 In Mr Simms' opinion, Mr Roohizadegan's CV was in the three months prior to his dismissal exceptionally strong. It showed Mr Roohizadegan to have had a 29 year record of achievement with many employers, with an average tenure of 4.14 years at each company. His awards and sales performance with TechnologyOne, for whom he had worked for nearly a decade, would have commended him to prospective employers. 821 Mr Simms gave as one example of the type of role for which Mr Roohizadegan might have been considered the position of "General Manager A/NZ" for a United States-based IT software/services company. The salary for that example position was in the region of $240,000.00 per annum as a base plus incentives/bonuses up to 40% in year one, rising beyond that in future years. Another example was a role with IBM which had been advertised with a salary package of $300,000.00 (base) plus OTE (which I understand to refer to "on-target earnings") and flexible work arrangements. 822 Mr Simms further opines that had Mr Roohizadegan been given reasonable notice and departed TechnologyOne on amicable financial terms, rather than having been summarily dismissed, he also would have been attractive to employers for like roles. 823 Mr Simms reports that sometimes, "harsh as it might seem", businesses make decisions that an employee needs to leave their business for reasons including inter alia the desire to implement a change of direction or simply a loss of trust in that employee. If an employee's departure in those circumstances is not a genuine redundancy, then the employer's best option is to offer a severance package. In Mr Simms' experience such a package will sometimes involve up to 12 months of base salary, to soften the blow to the employee as they depart. Such arrangements are usually accompanied by mutual non-disparagement terms. Mr Simms opines that had that approach been taken when Mr Roohizadegan left TechnologyOne, his doing so would not have damaged his chances of securing a role of the kind mentioned above. 824 Mr Simms' evidence however (much summarised) is that if the hypothetical blow of departing TechnologyOne's employment with notice had not been softened by an agreed "golden handshake", and as a result Mr Roohizadegan's state of mind and demeanour had been adversely affected, then that would have been likely to have had a significant negative impact on the prospects of his securing such a position. 825 In even shorter summary, Mr Simms further opines to the effect that media attention on, and the fact of, the litigation undertaken by Mr Roohizadegan after his termination may well have negatively affected his employability. 826 Mr Simms was not cross-examined. I accept his expert evidence in those regards.

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The expert medical evidence 827 Three psychiatrists gave expert evidence in this proceeding. They are as follows: Dr Gregory White MBBS, FRANZCP, CIME is the consultant psychiatrist that Mr Roohizadegan attended in relation to the claims made in the negligence proceedings brought (before his termination) against his daughter's treating medical practitioners. Dr White's two expert reports dated 9 October 2015 and 14 September 2017 are in evidence as Ex R43 (CB257-267 and CB269-278 respectively). Dr John King MBBS, DPM, FRANZCP is the treating psychiatrist who Mr Roohizadegan attends on a continuing basis. Mr Roohizadegan's general practitioner referred him to Dr King after his dismissal. Mr Roohizadegan's consultations with Dr King commenced on 19 August 2016. They were directed to treating Mr Roohizadegan's psychiatric distress and, at least initially, were arranged not with a view to providing medico-legal reports. Dr King's expert report of 22 December 2016 is in evidence as Ex A69 (CB293-298) and his expert report of 24 October 2017 is in evidence as Ex A70 (CB300-301). Associate Professor Jonathan Phillips MBBS, FRANZCP is Associate Professor (UNSW), Clinical Associate Professor (University of Adelaide) and Associate Professor (James Cook University). He was engaged on behalf of the Applicant, by his former solicitors, to provide a medico-legal report in these proceedings. Associate Professor Phillips' affidavit sworn on 29 January 2019 annexing his expert report of 13 December 2018 is in evidence as Ex A71. His report is at CB8455-8662. His letter of instructions and a further expert report dated 11 October 2019 (handed up in court) are in evidence as Ex A72. 828 In accordance with the Court's Expert Evidence Practice Note (GPN-EXPT) Dr White, Dr King and Associate Professor Phillips met on 16 October 2019 to prepare a joint report prior to the trial. The minutes of their conclave were put into evidence as Ex J4. They were in the following terms: 1. Prior to his dismissal, did the Applicant suffer from any recognisable psychological or psychiatric condition? If so: - (a) What was that condition? We agree that the Applicant suffered from a depressive disorder prior to his dismissal. (b) State the effect of that condition on the Applicant's capacity for employment. We agree that the Applicant's mental state would likely have impacted upon his capacity for employment. As described by the Applicant himself, he used compensatory mechanisms, such as working longer hours. At times, his symptoms resulted in his being distracted and needing to take some sick leave. His mental state likely resulted in his being sensitive to perceived bullying and inappropriate management actions, but even more so to his unexpected termination of employment. The treating psychiatrist, Dr John G. King, is of the opinion that the Applicant's psychiatric symptoms had improved but not resolved between the time of his daughter's medical problems and the time of his termination of employment. Dr White is of the opinion that the Applicant's psychiatric symptoms had not improved between the time of his daughter's medical problems and the time of his termination of employment. Dr Phillips is on the opinion that the Applicant's mental state improved prior to his workplace problems, but had not remitted entirely. (c) State if and when that condition ceased or will cease to have that effect. We agree that the condition has not ceased. There appears to have been a continuum of symptomatology between the time of his daughter's illness and the present day, albeit that there have been fluctuations in the intensity of symptoms. It is impossible to predict if and when the symptoms will cease in the future, but it is noted that the Applicant has now suffered from longstanding, and at times severe, symptomatology, so that the prognosis for a complete remission of symptomatology in the future is guarded, if not poor. 2. Did the termination of the Applicant's employment by the Respondent cause: (a) The development by the Applicant of a recognisable psychological or psychiatric condition? We agree that the termination of employment does not appear to have caused the development of a new psychiatric condition. (b) A recognisable and diagnosable aggravation of an existing psychological or psychiatric condition? If so: (i) What was that condition or aggravation thereof? We agree that the termination of employment appears to have significantly aggravated the abovementioned depressive disorder which had been precipitated by the medical problems suffered by the Applicant's daughter. (ii) Did that condition, or aggravation, affect the Applicant's capacity for employment and if so, in what way? We agree that the aggravation appears to have significantly affected the Applicant's capacity for employment, in that he has been totally psychiatrically incapacitated for employment from the time of the termination of employment to the present day. Many of the psychiatric symptoms in our reports, such as difficulties with concentration, tiredness, low mood, insomnia and anhedonia, would each alone preclude meaningful employment. (iii) What is the likely effect of that condition or aggravation, if any, on the Applicant's future capacity for remunerative employment in a position for which he would be otherwise qualified? We agree that as described above, the prognosis is not good. It is unlikely that the Applicant will regain a capacity for remunerative employment in a position for which he would be otherwise qualified. 829 The medical experts gave concurrent evidence. At the commencement of their examination, they gave evidence as to the status of their opinions as expressed in Ex J4 is as follows (T778, lines 33-46): His Honour: Now, I take it that, in effect, the opinions expressed substitute for and stand as your shared opinions, save where the differences are expressed, for those of any expert opinion that you have previously submitted to the court. In other words, these are the opinions that you would give to the court regarding Mr Roohizadegan's mental health status, the consequences, and the court is entitled to rely on your report where you are agreed as your joint and agreed opinions, and, to the extent that it identifies any areas of differences, those are the different opinions that you individually hold. Dr King: Yes, your Honour. Assoc Prof Phillips: Yes, your Honour. Dr White: Yes, your Honour. 830 As noted, their agreed joint evidence was that prior to his dismissal the Applicant had suffered from a depressive disorder precipitated by the medical problems that his daughter had suffered. The experts further agreed that prior to his termination: the Applicant's mental state would likely have impacted upon his capacity for employment. As described by the Applicant himself, he used compensatory mechanisms, such as working longer hours. At times, his symptoms resulted in his being distracted and needing to take some sick leave. His mental state likely resulted in his being sensitive to perceived bullying and inappropriate management actions, but even more so to his unexpected termination of employment. 831 The Court took care to confirm that the sole area of their disagreement was in respect of the extent to which the Applicant's depressive disorder had improved between the time when his daughter had begun to suffer medical problems, and his termination. That disagreement is identified in the minutes of their conclave as follows: The treating psychiatrist, Dr John G. King, is of the opinion that the Applicant's psychiatric symptoms had improved but not resolved between the time of his daughter's medical problems and the time of his termination of employment. Dr White is of the opinion that the Applicant's psychiatric symptoms had not improved between the time of his daughter's medical problems and the time of his termination of employment. Dr Phillips is on the opinion that the Applicant's mental state improved prior to his workplace problems, but had not remitted entirely. 832 The experts confirmed they were agreed that the Applicant's termination had not caused the development of a new psychiatric condition, but had significantly aggravated his pre-existing depressive disorder. 833 Each confirmed they were agreed that Mr Roohizadegan since has been "totally psychiatrically incapacitated for employment". 834 Each also confirmed they were agreed that: … the prognosis is not good. It is unlikely that the Applicant will regain a capacity for remunerative employment in a position for which he would be otherwise qualified. 835 As to their confined area of disagreement, Dr King and Associate Professor Philips identified their main reasons for diverging from Dr White in oral evidence as follows (T785, line 24-T876, line 9): Dr King: This is the main disagreement that I have with my fellow colleagues here, it's mainly with - with Dr White who's an old friend of mine, but that to me it just - I understand that after his daughter's illness and its mismanagement and all that happened he obviously, well, I would think fell apart in commonsense terms. But to work effectively and successfully and to - if what he told me about what his income, and to work productively over - over the intervening two years, I - I just can't reconcile that the depressive illness remain [possible transcription error] the same during the period, and that's - that's my main bone of contention. I mean, I - I would think he recovered to a degree, and I would think he - he - he sort of coped by - by being busy and by working. And, which can happen in any profession and it's - I suspect it also happens in the legal profession, but where - where people who have got trouble areas in their lives can throw themselves into the work and work extremely effectively. And I think that's what happened here. I think he did make a partial recovery, but I - I certainly accept that it did not fully resolve and he retained some vulnerability to the setback that was to come two years later. His Honour: Yes. And I understand Dr Phillips you have something to add? Assoc Prof Phillips: Well, if I may add to that, I believe he did make a partial recovery, but, more importantly, I think it's necessary to go back to the concept of mental defences and what people do when they're in psychological trouble. As I said before, this man has a highly obsessional personality and one of the characteristic mental defences in a person of this type is to sublimate, to throw themselves into the work situation. And this, as Dr King said, is very, very common in amongst professional people, not only the legal profession, but doctors are famous for it. And he threw himself into his work situation, I think largely to the detriment of other aspects of his life at the time. While he was symptomatic, he probably did not show his symptoms in any real sense to his work superiors and I think, despite ongoing psychopathology, depressive psychopathology at the time, he was able to manage, at least at a superficial level, the work demands. A person of another personality structure without obsessional features may not have been able to carry that through. 836 In respect of whether Dr White might be better placed to opine on that subject, Dr Spry examined the witnesses as follows (T802, line 34-T903, line 45): Dr Spry: Now, again, Professor Phillips, you only saw Mr Roohizadegan in November/December of 2018. That's correct? Assoc Prof Phillips: That's it. Dr Spry: And, Dr King, you're Mr Roohizadegan's treating psychiatrist, and you first saw him, I think you said, on 29 August 2016. Dr King: Yes. Dr Spry: And, Dr White, you saw Mr Roohizadegan both in November 2015 and then again in September of 2017. Dr White: Yes. Dr Spry: And in September of 2017, if I could just take you to your report, it's - if the witnesses could be shown the court book, volume 1, starting at page 269. It starts at 269, I think, this report. Again, Dr White, you have in this report various paragraphs in quotations. Dr White: Yes. Dr Spry: And that's because that's what Mr Roohizadegan told you at the time. Dr White: Yes. Dr Spry: Now, you, Dr King and Professor Phillips, would agree, would you not, that of the three of you, Dr White is the only person who saw Mr Roohizadegan both before and after the dismissal. That's obviously correct. Assoc Prof Phillips: Yes. Dr King: Correct. Dr Spry: And you would agree, would you not, that he is in the better position to assess the psychiatric health of Mr Roohizadegan both before and after the dismissal. Is that correct? Assoc Prof Phillips: Certainly before. Dr Spry: And after? Assoc Prof Phillips: Well, I think we all saw him at a later time, so I think we can all have reasonably thought-through opinions. Dr King: Well, without being too overconfident, I think I would be the better judge after, because I've seen him many times. I would contest that Dr White has a more potent opinion before, in the sense that I know I've seen him after, and, obviously, Greg saw him before the dismissal, but I've seen him many times, so we've trawled over these, so I've just had more information and more experience with the man. Dr Spry: More experience of the man in relation to his termination of his employment … Dr King: Yes. Dr Spry: .. and while these proceedings have been on foot. Dr King: Yes, that's true. 837 Dr Spry asked the experts each to assume that by at least January 2016, Mr Roohizadegan's manager was expressing concerns that Mr Roohizadegan had "lost his mojo" over the years. He asked Dr White, Dr King and Associate Professor Phillips whether if that were the case, that would suggest to them that "consistent with [the opinion of] Dr White" Mr Roohizadegan in fact was not coping at work by early 2016. Their respective evidence in response to that premise was as follows (T786, line 39-T787, line 30): Dr White: "Coping" is a subjective word, so I think we're all talking about different degrees of coping. I think I'm the only one of us who saw him at the time before his termination and he certainly made it clear to me that his symptoms were impacting upon his performance, regardless of whether the employer knew that that was because of mental illness or not. He told me that the symptoms were impacting. He - I guess, taking into account what Dr King said about earning a high income and continuing to function, I think they're mutually exclusive facts. I think one can be making errors and still performing to an adequate level, or a reasonable level. One can still be earning a high income. And I've - I think all of us would have over the years had many patients who have managed to function despite significant depressive symptoms. There was a recent research study from the Menzies Research Institute which, quote: Depression related absence from work offers no significant improvement in employee health outcomes or quality of life. There is certainly a push to keep people working these days, despite their depression, unless it's just impossible. And one only has to look at the media in terms of, for instance, that awful pilot crashing the Germanwings plane into a mountainside; politicians, Abraham Lincoln, Winston Churchill; footballers; doctors; lawyers. The list is endless. People continuing to work with quite significant mental illness, making varying degrees of errors along the way. Assoc Prof Phillips: I - I broadly agree with that. I think that - I - I'm not troubled by the comment about "losing his mojo". I think the subtlety of this is what we need to take into consideration. Here was a man who, on his history to me, thought that he was continuing to cope well. And he certainly was putting very long hours and a great deal of effort into his work. It may well be that his superiors picked up changes in him in relation to mojo or whatever, but, in my view, he undoubtedly remained incapacitated, at least to some degree at that stage, but, despite that, managed to go to work every day to perform, to draw an income and so on. Dr King: And - I mean, I agree with what my colleagues have said, but - I mean, when - when your boss says you've lost your mojo, I mean, that may indicate that you - that you've lost a - a little bit of your capacity to work. More often, it probably indicates there has been a personality clash, I think, in the workplace, so I would - I - I mean, it could be either of those, a - a comment like that. And, I mean, the history I obtained was of repeated conflict and abuse and - and a - you know, a - a pretty angry relationship with - so, who knows. 838 In that regard, I interpolate that each of the medical expert witnesses gave their evidence on the premise that Mr Roohizadegan had been honest in his reporting to them of his symptoms. I return to that circumstance later, in my discussion of the findings that I am entitled to make having regard to Dr Spry's contention that Mr Roohizadegan may have downplayed his symptoms when reporting his circumstances to Dr White and exaggerated his symptoms in describing his state of mind and conduct to Dr King and Associate Professor Phillips. For the moment however, it is sufficient to observe that I infer that Dr White's evidence of Mr Roohizadegan reporting to him that his symptoms had impacted on his performance at work is a reference to the history that Dr White had recorded after the first occasion on which he had seen Mr Roohizadegan as follows (T785, lines 1-6): They don't know about my suicidal tendencies but I've told in the past four years that I could have done better. I haven't been performance managed yet, but I have to work longer hours because I get absolutely distracted about my daughter. I'm not efficient, severe concentration problems, I forget things and I send the wrong emails to people repeatedly getting into trouble with my boss because I misjudge situations. 839 Dr Spry examined Dr King and Associate Professor Phillips to the effect that the symptoms on which they relied were exactly the same symptoms that Mr Roohizadegan had by that account experienced in November 2015, and suggested that their broad conclusions as to his capacity to have continued in employment therefore could not be correct. As to that proposition, they gave evidence as follows (T797, line 44-T798, lines 5-31): Assoc Prof Phillips: I would stand by the words the three of us chose that, in fact, generally those symptoms would make it difficult for a person to work or even preclude them from working. But I go back once more to the unusual nature of this man. Now, I've stressed and I stress again his highly obsessional way of going about things. And I believe, and I have no reason to change my view, that despite his obvious depression spectrum symptoms which are laid out in - in Dr White's report, he soldiered on at work in a - in a tolerably efficient manner despite having I am sure at the time a severe depressive disorder. Dr Spry: Dr King, did you wish to comment? Dr King: Yes. Look, I would agree with that. I would also add - I mean, I haven't - I would add this, I suppose, that I think that when Behnam is - undergoes these interviews he's probably seen at his worse, and I think that when he, sort of, got back to work and he was doing things and dealing with people and computers he - he probably - he - he - he - he may have been - I - so I mean, the technical word is to say that in the interviews I think he would regress. He would look a little bit worse than how he is day to day when he's away from going over and over these things. Dr Spry: Associate Professor Phillips, you used the term, "soldiered one", how can you be confident that if Mr Roohizadegan was soldiering on despite his illness in November 2015, how can you be in any way confident that that had resolved by May 2016 or largely resolved by May of 2016 when you only saw him in November/December of 2018? Assoc Prof Phillips: Yes. I don't - again, with respect, I don't think we're talking about a full resolution at all. Now, I started off with comparatively little information about his earlier problems despite a three and a half hour interview time. But as I put the bits together in an iterative fashion it became pretty obvious that to me that he had failed to make a full symptomatic recovery, even a partial symptomatic recovery. What I have said in my reports, plural, is that there was a significant aggravation and extension of his symptoms as a result of the workplace disputation, as I understand it, and his dismissal from the workplace. 840 As to the circumstance of Mr Roohizadegan's dismissal coming as a shock, Dr Spry examined Associate Professor Philips and Dr King as follows (T810, line 26-T802, line 32): Dr Spry: Now, you've said that - you've described this as a summary dismissal. Assoc Prof Phillips: My words. Dr Spry: Yes. Assoc Prof Phillips: Yes. Dr Spry: Yes, your words. But by that, I understand that it's your opinion that Mr Roohizadegan had no forewarning or knowledge or anything that there could be something like this on the horizon. Assoc Prof Phillips: Well, on my history, the history I've taken, the answer has to be no, he had no forewarning. Dr Spry: Yes. Did he tell you that only days before the dismissal, he had written by email to Mr Di Marco, saying: Based on recent events, it's become obvious to me that either Stuart or some other - And I won't bother you with who Stuart is, but: ...either Stuart or some other people from the executive have an agenda to have me leave. Assoc Prof Phillips: I don't remember the details. I've got copious notes from … Dr Spry: Yes. Assoc Prof Phillips: … here. It would take a while to trawl through them. Dr Spry: Yes, yes. Assoc Prof Phillips: But I know and I do recall that he had been sending emails within the company, some being escalated through to the chief executive. Dr Spry: Yes. And so it's fair to say, isn't it, that days before his dismissal, that Mr Roohizadegan had concerns about the tenure of his employment. Assoc Prof Phillips: I don't know that I could go as far as the tenure. I think he had concerns in relation to aspects of the employment, yes, undoubtedly. But whether it could - I don't believe on the material that I have that it would necessarily go as far as the tenure. Dr King: Could I come in on that? Dr Spry: Sorry, Dr King, yes. Dr King: I'm not referring to a particular entry, but I've got pretty clear memories that he had this faith that he had the chairman's ear, I think, so I think he went to that meeting hopeful that at least he had a good, sustaining relationship there. With other people - there was a Martin someone and someone else - there had been difficulty, but he kept appealing to the chairman. 841 Following discussion of the length of time taken by Dr White in his consultations with Mr Roohizadegan (in which respect the Court has no hesitation in accepting Dr White's undisputed evidence), during which discussion certain obsessional traits in Mr Roohizadegan identified by Associate Professor Phillips were referred to, Associate Professor Phillips made the following clarification: Assoc Prof Phillips: Your Honour, could I make a pedantic comment, if I may, about the issue of obsessional personality disorder versus obsessive personality trait. I - I think it's important in this case that in my view, anyway, this gentleman does not have a DSM-5 obsessional personality disorder in its full flavour. He has marked obsessional personality traits, and they have underpinned much of his behaviour certainly in terms of interview and I suspect in has workplace. But I wouldn't like him to be labelled in any sense as having an obsessional personality disorder. 842 All of the experts were agreed in opining that it was consistent with Mr Roohizadegan's obsessional traits that he would have made comprehensive contemporaneous notes of critical events in the workplace. 843 As to whether Mr Roohizadegan might have been downplaying his earlier symptoms in his reporting to Dr King, Dr Spry questioned Dr King as follows (T790, line 24-T791, line 22): Dr Spry: Is it the case that he did not tell you that he was diagnosed by Dr White with a mental illness in November of 2015? Dr King: Well, I don't think he would have told me that. Dr Spry: No. Dr King: No. DR SPRY: Did he tell you that he had been to see the medical panel in January of 2016? Dr King: At the first consultation, he may not have, but in the subsequent ones, I did learn that, and … Dr Spry: You were seeing Mr Roohizadegan for the purposes of his treatment; correct? Dr King: That's correct. Dr Spry: Sorry, before we get on to that, you see you've got a note at the bottom of that page on the left-hand side this time: Did buy ropes. Dr King: Yes. Dr Spry: Could you explain what that's about. Dr King: Well, that - he's telling me he bought a rope and he thought of hanging himself at Lysterfield Lake, which is, you know, about three-quarters of an hour out in the eastern suburbs. Dr Spry: And when did he say he thought about doing that? Dr King: I mean, from my notes, my understanding, this is in the run-up to his interview with me, but I'm - to the Lysterfield Lake. That's the way I've put it there. It would be a fairly currently thing to have done. Dr Spry: So he didn't suggest to you that he had put a rope in the car on numerous occasions as a consequence of his daughter's illness? Didn't tell you that? Dr King: Well, I've realised that subsequently, as … Dr Spry: But he didn't tell you that at the time. Dr King: No, not at the time.

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Consideration of expert medical evidence 844 In the Respondents' closing submissions, Dr Spry contended that the Court should find that during his consultations with Dr King and Associate Professor Phillips the Applicant had "greatly exaggerated" his psychiatric symptoms. Dr Spry further suggested that the Court should find that the Applicant was not frank with the medical witnesses. For example, he submitted that during his 2015 consultation with Dr White - which related to the Applicant's action regarding psychiatric harm he had suffered as a result of alleged deficiencies in his daughter's medical treatment - Mr Roohizadegan had been "keen to downplay any symptomology associated with his workplace". He suggested it would be open to the Court to find that Mr Roohizadegan had deliberately told a different story to Dr King, whom he consulted at a time after the present litigation was on foot. 845 In that regard it is not in dispute that the weight to be given (if any) to the experts' opinions is, in respect of each, contingent upon the basis for their forming those opinions being made out. On 15 October 2019 Dr Spry applied to exclude the reports of Dr King dated 22 December 2016 and 24 October 2016; the report of Associate Professor Phillips dated 13 December 2018; and his supplementary reported dated 24 September 2016, having regard to the basis rule. The objection was founded on the fact that Mr Roohizadegan had not given evidence before closing his case as to the continuing impact of his dismissal on his mental health as a sequel to his dismissal. If it had been necessary for the Court to rule on that premise, it would not have been inevitable that the Court would have excluded that evidence. It may have been open to the Court to have held that the extensive notes made by each of Dr King and Associate Professor Phillips as to what Mr Roohizadegan had told them about his symptoms and the circumstances in which he had experienced those symptoms were admissible as business records. As such, the circumstances to which those notes referred would have been available for all purposes. The Applicant's failure to call primary evidence on that point would therefore have gone only, although perhaps very significantly, to the weight I ought to attribute to that evidence. 846 In any event however, a ruling on that hypothesis proved unnecessary. Mr Tracey sought leave to reopen the Applicant's case to permit Mr Roohizadegan to give sworn evidence in those regards. Dr Spry did not object to such leave being granted. I granted the leave sought. Having regard to that circumstance, I deferred ruling on Dr Spry's application until after that had occurred. 847 Mr Roohizadegan was thus later recalled to give further evidence on 31 October 2019. His evidence-in-chief concerning this issue was contained in an affidavit sworn on 21 October 2019 and tendered as Ex A68. He was cross-examined by Dr Spry (T1159-1174). He was not re-examined. His evidence can be summarised to the effect that he had indeed said the things to Dr King and Associate Professor Phillips on which they had relied in forming their opinions. What he had told them in those regards had been the truth. He had not exaggerated. The tenor of his cross-examination and Mr Roohizadegan's responses is exemplified by the following exchange (T1161, line 7-T1163, line 5): Dr Spry: You saw Associate Professor Phillips in October/November of 2018. Correct? Mr Roohizadegan: Yes. Dr Spry: And you saw him for the purposes of obtaining a report for use in these proceedings. Correct? Mr Roohizadegan: Yes. Dr Spry: And when you saw him, you told him that you suffered symptoms since 18 May of tearfulness. Correct? Mr Roohizadegan: Yes. Dr Spry: Anxiety? Mr Roohizadegan: Yes. Dr Spry: Frustration? Mr Roohizadegan: Yes. Dr Spry: Anger? Mr Roohizadegan: Yes. Dr Spry: Nightmares? Mr Roohizadegan: Yes. Dr Spry: Irritable and short-tempered? Mr Roohizadegan: Yes. Dr Spry: You did not tell Dr Phillips - sorry - Professor Phillips that you experienced all those symptoms in November 2015 and January 2016, did you? Mr Roohizadegan: No. Dr Spry: And the reason you did not tell him that is because you sought to exaggerate the symptoms that you experienced following the termination of your employment. Correct? Mr Roohizadegan: Incorrect. Dr Spry: You told Associate Professor Phillips that you bought a rope with the aim of hanging yourself. Correct? Mr Roohizadegan: Yes. After my termination. Dr Spry: You did not tell Dr Phillips that you bought a rope - that you had a rope and attempted to hang yourself in early 2015 as a consequence of the stress you suffered in relation to your daughter's illness. Correct? Mr Roohizadegan: No. Dr Spry: And, again, that's because you've sought to exaggerate your symptoms to Dr Phillips - to Professor Phillips. Correct? Mr Roohizadegan: Incorrect. Dr Spry: And it's because you seek to not tell the truth to this court about your symptoms. Correct? Mr Roohizadegan: Incorrect. Dr Spry: You told Professor Phillips that you find it difficult to accept criticism at work. Correct? Mr Roohizadegan: Incorrect. Dr Spry: Incorrect? Mr Roohizadegan: I didn't tell him that I feel criticism at work. I don't understand the negative question. You're asking me - yes. Dr Spry: You told Professor Phillips that you find it difficult to accept criticism at work? Mr Roohizadegan: I - the only thing I remember I said was if a decision is made for me on my behalf, I have difficulty to accept that, and being held accountable. I may have mentioned to him about Richard Metcalfe being forced on me and I had difficulty to accept that, that being hold accountable for a decision which is made for my business … when somebody else made that decision for me. That part, I remember. The rest, I don't recall - don't recall. Dr Spry: Now, you told Professor Phillips that you had a pilot's licence - sorry - a pilot's licence in the past. Correct? Mr Roohizadegan: Correct. Dr Spry: What you did not tell him, that you had not flown or used your pilots licence as a consequence of your daughter's illness; correct? Mr Roohizadegan: I'm sorry. I struggle with your negative questions. Can you please rephrase it, because then I have to look at it how - what the question is. Dr Spry: Well, yes? Mr Roohizadegan: I don't understand the question, sorry. Dr Spry: Yes. You will recall that you told Dr White that you had lost enjoyment with flying and that you weren't utilising your pilot's license as a consequence of your daughter's illness; correct? Mr Roohizadegan: Correct. Dr Spry: Now, you didn't tell that to Professor Phillips, did you? Mr Roohizadegan: I don't recall. Dr Spry: You don't recall. Now, you - when you see Dr Phillips in November/December of 2018 you tell him that after your dismissal on the flight home you thought about breaking out of the aircraft and jumping to your death? Mr Roohizadegan: Correct. Dr Spry: You've only said that to Dr Phillips in November/December '18; correct? Mr Roohizadegan: Correct. Dr Spry: And that's because you made that up; correct? Mr Roohizadegan: Incorrect. Dr Spry: And you made it up to give Professor Phillips that your symptoms were far worse than the symptoms you experienced? Mr Roohizadegan: Incorrect. My work was my world, so by that time my world had ended and I apologised to my family and to my wife and children that my world had become my - my family had become TechnologyOne. TechnologyOne was my family, my - my being, my - my everything. Dr Spry: Now, you have prepared three statements for use in these proceedings, and in not one of those statements do you mention breaking out of the aircraft and jumping to your death, do you? Mr Roohizadegan: I can't recall, Dr Spry. Dr Spry: You gave evidence-in-chief about your flight home and you did not when you gave evidence before this court - you gave evidence about your flight home - you didn't mention anything about jumping out of the aircraft, did you? Mr Roohizadegan: No, I didn't. Dr Spry: Because it's not true; correct? Mr Roohizadegan: It is true. 848 I am unpersuaded that anything arising in Mr Roohizadegan's cross-examination on this point requires the findings I have earlier expressed regarding his credibility to be revisited. He was unshaken in cross-examination and his demeanour was identical to that which I had observed when he gave his evidence earlier in the trial, save perhaps that under this later cross-examination he occasionally appeared to have been aggravated by his honesty being put in issue. 849 In closing submissions Dr Spry submitted that the Court should accept as being significant in that regard Mr Roohizadegan's failure to call his wife as a witness. His wife was well placed to give evidence as to the relevant marital issues, Mr Roohizadegan's mental health historically, and his state of mind both before and after his dismissal as he had disclosed it to the expert psychiatric witnesses. Dr Spry submitted that this failure supported the Respondents' submission "that the Applicant's mental health did not decline in the way he reported to the doctors, and his dismissal did not have the lasting psychiatric effect on him as he alleges". 850 I accept that in some circumstances the failure to call a witness who might be expected to be able to throw light on a subject entitles a court to draw a Jones v Dunkel ([1959] HCA 8; 101 CLR 298) inference that their evidence would not have assisted the party who had the power to call them. However, that is subject to the qualification that the failure to call the witness must be relevantly unexplained. I accept it to be self-evident that Mr Roohizadegan made a choice in these proceedings not to call his wife as a witness: notwithstanding Dr Spry's observation that she had attended much of the hearing to give support to her husband. However, I hesitate to characterise his choice not to call her as a witness as simply (or principally) a forensic decision. 851 Dr Spry's submission that I should draw an adverse inference because she was not called to give evidence, inter-alia with respect to "relevant marital issues", indicates the intrusive nature of the cross-examination to which she potentially would have been exposed had she been called. There is ample documentary evidence from the times at which Mr Roohizadegan sent various emails to confirm his evidence that for years he had placed his work before his wife and family. I do not take it to be contentious that their marriage had been on the brink of failure, and that the couple had had to seek marital counselling. Mr Roohizadegan was not cross-examined to the contrary. In those circumstances I do not conclude that Mr Roohizadegan's failure to call his wife to give evidence in these proceedings is unexplained. The only inference I am prepared to draw is that Mr Roohizadegan was prepared, for better or worse, to have his case determined on the basis that if his case required him to call his wife to corroborate his evidence, he would rather lose rather than put her through that ordeal. 852 I am reinforced that I should draw no further negative inferences in relation to Mr Roohizadegan's post-dismissal symptomology from his failure to call his wife, even assuming that her being called to give evidence might have been capable of being confined to that issue, having regard to the Respondents' own forensic decision not to call any evidence from the investigators engaged to conduct surveillance on Mr Roohizadegan after he had commenced these proceedings: a matter to which I refer in another context at [857] below. However, Mr Tracey did not ask the Court to draw any inferences in that regard and I equally draw no adverse inferences from that decision. 853 It would be unsurprising if any applicant might emphasise (without any dishonesty) the significance of particular events upon which he or she might rely when attending a medical appointment which would involve an assessment of the degree of their incapacity and when it was occasioned, where those circumstances might be in issue in their proceedings. In my view, that entitles me to reject Dr Spry's submission that I should find that Mr Roohizadegan had downplayed his symptomology as associated with his workplace when he consulted Dr White in regard to the negligence proceedings then pending with respect to his daughter's alleged misdiagnosis and the effect that her ill health had had on him. In that context, and at that time, Mr Roohizadegan had no motive to downplay those impacts: and every reason to state them fully. 854 I reject that Dr Spry's cross-examination of Dr King as to how and when Mr Roohizadegan had, when consulting him, later referred to matters associated with his daughter's illness as he had discussed with Dr White casts any doubt on that conclusion. 855 I am unpersuaded that there is a plausible reason to accept that the descriptions of his symptoms that Mr Roohizadegan gave to his treating doctor, Dr King, were untrue and/or exaggerated. Dr King states in his first affidavit that Mr Roohizadegan had consulted him, on referral from Dr Roohizadegan's general practitioner, for treatment for his psychiatric distress: rather than with a view to providing medico-legal reports. That evidence was unchallenged. Mr Roohizadegan's various descriptions of his symptoms as they evolved during his treatment, as revealed in Dr King's notes, were consistent with the evidence he gave. 856 I am further unpersuaded that, even having regard to the motive he was suggested to have had, the Court is entitled to conclude that Mr Roohizadegan's history as reported to Associate Professor Phillips for the specific purpose of the latter providing an expert medico-legal report was falsely asserted and/or exaggerated. In cross-examination Mr Roohizadegan conceded that although he had stated in his affidavit that he had said the things that Associate Professor Phillips recorded in his history, that they were true and correct, and that he had had an opportunity to peruse that history, he had made a mistake regarding the date of a particular event as he had conveyed it to Associate Professor Phillips (see T1163, lines 10-45). In context however his acceptance of having made that mistake was not, in my opinion, suggestive of dishonesty or exaggeration. 857 In respect of that circumstance, I should note that the mistake relates to an account Mr Roohizadegan gave to Associate Professor Phillips of his believing that a car driven by "agents of TechnologyOne" had tried to push him off the road. Mr Roohizadegan was not cross-examined by Dr Spry as to the basis for that belief. However, lest that evidence assume a significance that I would reject it deserves in this proceeding, I note that it is uncontentious that TechnologyOne had engaged private investigators to report on Mr Roohizadegan's post-dismissal behaviour. I infer that it had made a forensic decision not to adduce any evidence from that investigation. Dr Spry acknowledged the fact of Mr Roohizadegan having been followed and reported on. He accordingly did not ask the Court to make a finding that Mr Roohizadegan's report of that alleged incident to Associate Professor Phillips in March 2018 establishes that he was then or had previously been a sufferer of fanciful paranoid delusions. I make no such finding.

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The single area of disagreement 858 I turn then to the single point of disagreement between the expert medical witnesses, being the extent to which Mr Roohizadegan's disorder had improved or resolved prior to his termination. Each of Dr White, Dr King and Associate Professor Phillips opine that Mr Roohizadegan's termination "significantly aggravated" his pre-existing depressive disorder. Perhaps, therefore, nothing turns on the point in respect of proof of loss. However, lest I be in error in respect of that analysis I will state my findings as to which view is to be preferred. Prior to my doing so however I ought to make clear that I have no hesitation in accepting that the three experts were each independent, highly competent and honest. In their interactions in giving concurrent evidence it was clear that they shared a high professional regard for one another. 859 In his 2017 report, Dr White expressed the following view (Ex R43, CB277): 9. How his dismissal had affected him Given Mr Roohizadegan's description of the events, as well as his emotional tone when describing the various events, the perceived unreasonable dismissal appears to have affected him more than the reported bullying. Again, however, it cannot be regarded as being as significant a causative factor as the original precipitating events surrounding his daughter's illness. 860 By contrast, Dr King summarised his position with respect to that proposition as follows: This is the main disagreement that I have with my fellow colleagues here, it's mainly with - with Dr White … I understand that after his daughter's illness and its mismanagement and all that happened he obviously, well, I would think fell apart in commonsense terms. But to work effectively and successfully … if what he told me about his income, and to work productively over the intervening two years … I just can't reconcile that the depressive illness remain[ed] the same during the period, and that's … my main bone of contention. I mean … I would think he recovered to a degree, and I would think he - he - he sort of coped by - by being busy and by working. And, which can happen in any profession and it's - I suspect it also happens in the legal profession, but where - where people who have got trouble areas in their lives can throw themselves into the work and work extremely effectively. And I think that's what happened here. I think he did make a partial recovery, but I - I certainly accept that it did not fully resolve and he retained some vulnerability to the setback that was to come two years later. (Emphasis added). 861 Associate Professor Phillips' evidence was that he agreed with Dr King that Mr Roohizadegan had made a partial recovery (T785, line 39-T786, line 9). In cross-examination, Associate Professor Phillips accepted however that Mr Roohizadegan's partial recovery was significantly limited (T798, lines 24-31): Yes. I don't - again, with respect, I don't think we're talking about a full resolution at all. Now, I started off with comparatively little information about his earlier problems despite a three and a half hour interview time. But as I put the bits together in an iterative fashion it became pretty obvious that to me that he had failed to make a full symptomatic recovery, even a partial symptomatic recovery. What I have said in my reports, plural, is that there was a significant aggravation and extension of his symptoms as a result of the workplace disputation, as I understand it, and his dismissal from the workplace. 862 Dr Spry put to Dr King and Associate Professor Phillips that as Dr White was the only one of them who had seen Mr Roohizadegan both before and after the dismissal, he was in the better position to assess his psychiatric health both before and after that event. 863 Associate Professor Phillips accepted that Dr White was in the better position to assess the psychiatric health of Mr Roohizadegan before he been dismissed, but as to the position afterwards his evidence was as follows (T803, lines 27-28): Well, I think we all saw him at a later time, so I think we can all have reasonably thought-through opinions. 864 However, even in respect of Mr Roohizadegan's pre-termination condition I am satisfied that there are reasons to doubt the soundness of the basis for the opinion Dr White expressed in respect of the severity of Mr Roohizadegan's then condition. Necessarily, Dr White's reasoning was based on what Mr Roohizadegan had told him at the time. In that regard, Dr White records Mr Roohizadegan as having said to him (T785, lines 1-6): They don't know about my suicidal tendencies but I've told in the past four years that I could have done better. I haven't been performance managed yet, but I have to work longer hours because I get absolutely distracted about my daughter. I'm not efficient, severe concentration problems, I forget things and I send the wrong emails to people repeatedly getting into trouble with my boss because I misjudge situations. 865 Mr Roohizadegan's evidence in his earlier cross-examination was that that passage contained an error in that he did not say the word "yet". His counsel did not cross-examine Dr White on that premise. Accordingly I accept Dr White's evidence, but I place no weight on that small difference of recall. 866 What strikes me as being of potentially much greater significance is the latter sentence, in respect of which there is no dispute that Mr Roohizadegan said those words when Dr White examined him on 4 November 2015. 867 There is documentary evidence that Mr Roohizadegan and Mr Harwood had come into conflict as early as April 2014. On that occasion, Mr Roohizadegan had escalated a matter concerning Mr Harwood involving a customer complaint to Mr Di Marco. After becoming Mr Roohizadegan's manager in October 2014, Mr Harwood unilaterally appointed Mr Metcalfe to the position of Regional Sales Manager for Victoria: notionally to assist Mr Roohizadegan. However, I do not take it to be contentious that Mr Metcalfe viewed Mr Harwood to be his real boss. In June 2015 Mr Roohizadegan had escalated a concern about Mr Harwood having made a decision to terminate two of his Victorian sales team to Mr Di Marco, complaining (I infer in relation to Mr Metcalfe serving Mr Harwood's interests rather than his) that he was unable to run his region in parallel with a fifth column. Mr Di Marco had responded by informing Mr Harwood that he was holding him accountable to stop the revolving door of Victorian sales staff. In September 2015 Mr Harwood had, entirely unsuspected by Mr Roohizadegan, instructed Ms Carr to draw up plans for Mr Roohizadegan to be dismissed. Ms Carr's evidence-in-chief was that Mr Harwood had told her he resented Mr Roohizadegan's conduct in going over his head to Mr Di Marco. The evidence before me establishes that at around the same time, Ms Carr had asked Ms Gibbons to start recording (I infer adverse) information on Mr Roohizadegan's behaviour that Mr Harwood had reported to her. The evidence before me also establishes that Mr Harwood had convinced Mr Chung that plans should be made to replace Mr Roohizadegan. 868 In that context I turn to Dr White's opinion (as expressed at paragraph [9] of his 2017 report) that Mr Roohizadegan's perceived unreasonable dismissal appeared to have affected him more than the reported bullying, but it could not be regarded as being as significant a causative factor as the original precipitating events surrounding his daughter's illness. 869 That opinion finds no support in what Mr Roohizadegan had earlier told Dr White. There is no reference at all in Dr White's report of 9 October 2015 to "the reported bullying". Instead, what Mr Roohizadegan had reported to Dr White wholly attributed the blame for his repeatedly getting into trouble with his boss to his own flaws. However, in that regard I am satisfied that Mr Roohizadegan was mistaken. He was understandably mistaken because he had yet to come to suspect that at least some of what he had reported as being matters for which he was responsible may have been a product of the ill-motivated conduct of others. In any event I am satisfied that I am entitled to infer that the perceptions of, inter alia, Ms Carr, Ms Gibbons and Mr Chung had been influenced by the accounts given to them by Mr Harwood of Mr Roohizadegan's conduct as might warrant his termination. That in turn undermines the basis for Dr White's conclusions as to the degree of Mr Roohizadegan's self-reported incapacity at work. I stress however that my reasoning on the point implies no want of respect for the opinions that Dr White formed on that premise. 870 Dr King rejected the proposition put to him by Dr Spry that Dr White was better placed to opine as to Mr Roohizadegan's mental state both before and after his termination. His evidence was: Well, without being too overconfident, I think I would be the better judge after, because I've seen him many times. I would contest that Dr White has a more potent opinion before, in the sense that I know I've seen him after, and, obviously, [Dr White] saw him before the dismissal, but I've seen him many times, so … I've just had more information and more experience with the man. 871 In the circumstances in which I have concluded that the basis for Dr White's opinion (understandably) is other than he understood it to be, I prefer and accept Dr King's evidence. As Mr Roohizadegan's treating doctor, Dr King had the advantage of having seen him over a prolonged period of time. Dr King's opinion is broadly consistent with that of Associate Professor Phillips, although possibly not in respect of degree. It is also consistent with what I accept to be the uncontentious fact that Mr Roohizadegan had remained able to cope with his distress and had maintained his capacity to work under increasingly stressful circumstances without his mental ill health ever becoming apparent to his colleagues. 872 I am satisfied on the basis of the evidence of Dr King and Associate Professor Phillips that I ought to find that Mr Roohizadegan's pre-existing psychiatric condition had improved to at least some degree, but had not resolved, between the time of his daughter's becoming ill and his termination. I so find.

[62]

Method of termination 873 In examining the experts, Dr Spry asked a number of questions regarding the method of Mr Roohizadegan's termination. I understood those questions were prophylactically directed towards ensuring adverse inferences not be drawn on the basis that TechnologyOne had subjected a man they knew to be mentally vulnerable to an unjustifiably brutal removal. In view of the responses to those questions, in closing submissions Dr Spry submitted: 176. Further, Dr White, on reflection said: 'I don't know what difference it would have made, the method of termination. … and given that I am of the opinion that his condition had not improved by the time of his termination, I think that he was probably like a wound-up spring at that point, struggling to maintain his employment, and the termination was just devastating, and he unwound.' 177. Professor Phillips said: 'I think to terminate by telephone call or by email or text is in the worst category.' To suggest as the Applicant's suggested to Ms Gibbons that the email inviting the Applicant to the termination meeting ought to have referred to the termination of his employment would be to terminate the Applicant by email - one of the worst ways in which to terminate any employee. 178. Professor Phillips also said a summary termination was not a wise thing to do if they knew that Applicant was suffering from some sort of mental problem. But, the Respondents did not know that the Applicant was suffering from any sort of mental problem. (Footnotes omitted). 874 For the reasons I have earlier stated, I reject Dr White's opinion as to the degree of Mr Roohizadegan's pre-termination disability. However, I have made a clear finding that no one employed by TechnologyOne had had the least idea that Mr Roohizadegan was mentally unwell. That finding requires me to accept Dr Spry's submission that I should draw no adverse inference that TechnologyOne manifested a want of concern for Mr Roohizadegan's psychiatric welfare by implementing his termination in the brutal and summary manner in which it was effected. 875 For completeness, I should note that in the aftermath of Mr Roohizadegan giving further evidence Dr Spry did not press his application for the exclusion of Dr King and Associate Professor Phillips' reports. On 31 October 2019, I ordered that that application be dismissed.

[63]

The expert accounting/financial evidence 876 Two forensic accountants gave expert evidence in this proceeding. They are as follows: Mr Dennis Lee is a qualified Chartered Accountant and a Senior Director in the Forensic Accounting and Advisory Services practice at FTI Consulting in Australia. He specialises in Forensic Litigation Consulting matters. In this role, he provide forensic accounting, loss and damage, economic loss, valuation and financial investigation services. Ms Kate Grimley is a Partner in the Forensic Practice of Deloitte Risk Advisory Pty Ltd in Brisbane, Australia. She is a qualified Chartered Accountant, having been admitted as a member of Chartered Accountants Australia and New Zealand. She has over 20 years of experience as an accountant, including in the preparation and provision of expert forensic accounting evidence. 877 In accordance with the Court's Expert Evidence Practice Note (GPN-EXPT), Mr Lee and Ms Grimley met on 16 October 2019 to prepare a joint report prior to the trial. Their joint expert statement, produced in consequence, was put into evidence as Ex J1. It was premised on a number of common, although alternative, assumptions. 878 It is uncontentious that in turn, the underlying financial figures upon which each had relied in preparing their joint report were those contained in a confidential court book as was taken into evidence as Ex J2. 879 It is also uncontentious that although both Ms Grimley and Mr Lee had opined earlier in respect of differently premised underlying assumptions (as instructed by their respective clients), they now advanced their joint report in entire substitution for those earlier opinions. Neither Mr Tracey nor Dr Spry sought to tender or rely on any earlier report on the court file. The only references to those earlier reports were: (a) in respect of an issue pursued briefly by Mr Minson (T749-751) on the basis that the answers that Mr Lee and Ms Grimley gave might be potentially relevant to Mr Chung's credit. I am satisfied that pursuit of that line of questioning went nowhere; as was the case with some later, similarly premised, questions that he put to the witnesses (T755, lines 9-37); and (e) in respect of whether an issue earlier raised regarding some double counting of expenses might still be relevant. Ms Grimley had no opinion to offer on that point "on the spot"'. Mr Lee accepted that there might still be some double counting in respect of the figures in the joint report, but gave evidence that the impact would be much less because of the additional assumptions they had been asked to apply. There was no follow up to that evidence. I do not consider Mr Lee's response to constitute a concession that the Court ought to assume that this issue would materially affect what he and Ms Grimley had expressed as their joint conclusions. 880 I should indicate at the outset that I was greatly impressed by both Ms Grimley and Mr Lee. I have no hesitation in accepting their joint evidence, subject to the limitations they both accepted necessarily attended the various assumptions they had been instructed to apply in giving that evidence. 881 In the course of their giving evidence Ms Grimley and Mr Lee were asked if it would be possible for them to provide an additional joint note which would summarise, on the various assumptions that they had been instructed to apply, the aggregate outcomes were Mr Roohizadegan to succeed in the premises of his contract case. That additional note was sought because in their joint report, their responses to the various scenarios on which they had been asked to opine had not required that task to be undertaken. Their one page summary note regarding that issue was provided in due course. It was received into evidence as Ex J3. 882 It is fortunately unnecessary to give detailed attention to the first four questions upon which the experts opined. Those questions relate to the value of Mr Roohizadegan' contract claim assuming that he established he had been entitled to have received incentives as he claimed on all sales of SMS and Plus Services, and all sales to Victorian Legal Aid and Victorian Red Cross. 883 In closing submissions the parties jointly informed the Court that they were agreed that Mr Roohizadegan was entitled to an amount of $1.59m in damages, should the Court find that he was successful in his breach of contract claim. I am entitled to proceed on that agreed basis. That number appears to have no discernible relationship to any of Ms Grimley and Mr Lee's specific calculations. It is however within the ballpark range of the outcomes they provided in Ex J3 as they had variously calculated would apply in each of the five scenarios upon which they had been asked to opine; the maximum so expressed being $2,050,937.00 and the minimum being $1,306,081.00. 884 For convenience I should also record at this point that, in accordance with leave granted to them on 4 November 2019, the parties subsequently advised the Court that if the Court were to find that Mr Roohizadegan's termination had been unlawful under the Fair Work Act they were agreed on the award to which he would be entitled in respect of share options. They agreed that Mr Roohizadegan would be entitled to an award of $756,410.00 in damages (including pre-judgment interest up to 7 October 2019) with respect to his forgone share options, those options having been withdrawn from him in consequence of his having been summarily dismissed. 885 I now return to the evidence of Ms Grimley and Mr Lee as to the quantification of the future economic loss that Mr Roohizadegan suffered by reason of his termination, again assuming it to have been unlawful. That was the subject of their answers to questions 5-7 as set out in their joint report. In that regard I note that Mr Roohizadegan's pleadings limit the period in respect of which he seeks damages for future economic loss to four years ending 30 September 2020. The experts' opinions proceed on that premise. 886 Regarding Mr Roohizadegan's claimed future economic loss with respect to which they opine, I should make two points clear at the outset. 887 First, Ms Grimley and Mr Lee were not asked to take into account any loss Mr Roohizadegan would suffer as a result of his ceasing to be entitled to his base salary of $192,000.00. The task they were set, on various assumptions, was to calculate and opine with respect to what he may have lost by reason of his forgone incentives. 888 It is not in dispute that if Mr Roohizadegan succeeds in persuading the Court that he would have, but for his unlawful dismissal, continued as an employee of TechnologyOne until 30 September 2020 he would be entitled to receive, in addition, $824,569.15 representing his lost salary for that period That would consist of four years' base salary at $192,000.00 per annum, plus $56,569.15 as a proportion of that base for the part-year that remained following his termination (T1235, lines 11-13). I infer that in advancing those submissions, Mr Tracey elected not to press for any indexation of Mr Roohizadegan's base salary. 889 Second, Ms Grimley and Mr Lee make no provision for mitigation of loss. They state in their joint report that they are agreed that the possibility Mr Roohizadegan might have been able to mitigate his loss may be potentially material with respect to the assessment of his future economic loss. However, they leave that question as one entirely for the Court. 890 It is convenient now to set out what the experts state as their answers to questions 5-7 as instructed: RESPONSE TO QUESTION 5 - Incentives based on Victorian Business Unit management accounts Introduction and instructions 48. In Question 5, the Accounting Experts are instructed to calculate the incentive that would have been payable by TechnologyOne to the Applicant had he not been terminated based on the Victorian Management Accounts supplied to them up to the end of FY19. 49. The Accounting Experts are instructed to prepare this calculation over the following periods: a. For each financial year from 1 May 2016 to 30 September 2020; b. From 1 May 2016 to 30 June 2016 c. From 1 May 2016 to 30 September 2016; d. From 1 May 2016 to 31 December 2016; e. From 1 May 2016 to 31 March 2017; f. From 1 May 2016 to 30 September 2017; g. From 1 May 2016 to 31 March 2018; h. From 1 May 2016 to 30 September 2018; i. From 1 May 2016 to 31 March 2019; j. From 1 May 2016 to 30 September 2019; k. From 1 May 2016 to 31 March 2020; and l. From 1 May 2016 to 30 September 2020. 50. In preparing the above, the Accounting Experts have been instructed to identify revenue for the Victorian Business Unit and profit before tax and incentives for the Victorian Business Unit. 51. Finally, the Accounting Experts have been instructed that the Incentive Statements identify various adjustments which were made by TechnologyOne in calculating the actual incentives paid to the Applicant. We are instructed to adopt these same adjustments for the purpose of responding to Question 5. 52. The Accounting Experts note that this instruction relates to historical incentive payments made to the Applicant. They have assumed for the purposes of calculating Question 5 incentives that no further adjustments are required. Calculation basis 53. The Accounting Experts have agreed on the following in calculating the incentives based on the Victorian Management Accounts: a. The incentive calculation is based on the actual profit and loss before tax and incentives, presented in the Victorian Management Accounts over the period FY16 to FY19; b. The retention clause of the Applicant's employment contract regarding incentive payments is applicable as described at KG1-3.20(c) for some of the periods cited in paragraph 53(a) to (l) above; c. The Accounting Experts have agreed that FY20 incentives are to be projected based on the following: i. The starting point for the calculation is the prior year profit before tax and incentive, being the profit before tax and incentive in FY19; ii. The profit and loss before tax and incentives relied upon for the calculations is the profit and loss figures originally reported in the management accounts and used to calculate the Applicant's incentive. Comparative prior year figures have not been utilised within our calculations; iii. Incentives are calculated on profit and loss before tax and incentives; and iv. The historical growth rate in profit and loss before tax and incentives in the three most recent years prior (FY17 to FY19) is used to calculate future growth for FY20. The Accounting Experts have calculated this as negative 2.71%; (attached as Appendix 6). RESPONSE TO QUESTION 6 - Applicant's performance 55. In Question 6, the Accounting Experts are instructed to calculate the incentive that would have been payable by TechnologyOne to the Applicant had he not been terminated based on the Applicant's actual performance prior to 18 May 2016. 56. The Accounting Experts are instructed to prepare this calculation over the following periods: a. For each financial year from 1 May 2016 to 30 September 2020; b. From 1 May 2016 to 30 June 2016 c. From 1 May 2016 to 30 September 2016; d. From 1 May 2016 to 31 December 2016; e. From 1 May 2016 to 31 March 2017; f. From 1 May 2016 to 30 September 2017; g. From 1 May 2016 to 31 March 2018; h. From 1 May 2016 to 30 September 2018; i. From 1 May 2016 to 31 March 2019; j. From 1 May 2016 to 30 September 2019; k. From 1 May 2016 to 31 March 2020; and l. From 1 May 2016 to 30 September 2020. 57. In preparing the above, the Accounting Experts have been instructed to identify revenue for the Victorian Business Unit and profit before tax and incentives for the Victorian Business Unit. 58. Finally, the Accounting Experts have been instructed that the Incentive Statements identify various adjustments which were made by TechnologyOne in calculating the actual incentives paid to the Applicant. We are instructed to adopt these same adjustments for the purpose of responding to Question 6. 59. The Accounting Experts note that this instruction relates to historical incentive payments made to the Applicant. They have assumed for the purposes of calculating Question 6 incentives that no further adjustments are required. Calculation basis 60. The Accounting Experts have agreed on the following in calculating the incentives based on the Applicant's historical performance: a. The incentive calculation is based on the actual profit and loss before tax and incentives, calculated based on the Victorian Management Accounts over the period FY14 to April 2016 (the month end prior to the Applicant's termination); b. The retention clause of the Applicant's employment contract regarding incentive payments is applicable as described at KG1-3.20(c) for some of the periods cited in paragraph 53(a) to (l) above; c. The Accounting Experts have agreed that FY16 incentive is to be projected based on the following: i. The profit and loss before tax and incentives relied upon for the calculations is the profit and loss figures originally reported in the management accounts and used to calculate the Applicant's incentive. Comparative prior year figures have not been utilised within our calculations; ii. The starting point for the calculation is the year to date performance of the Victorian Business Unit to April 2016; iii. The performance for the remainder of FY16 is pro-rata based on the months remaining in the financial year. The Accounting Experts have calculated the total profit before tax and incentive for FY16 as $7,521,484 based on the April 16 year to date profit and loss for the Victorian Business Unit (calculations included in Appendix 8.3; iv. Incentives are calculated on profit and loss before tax and incentives; and v. The historical growth rate in profit and loss before tax and incentives in the three most recent years prior (FY14 to FY16 YTD (April)) is used to calculate future growth for FY17 onwards. The Accounting Experts have calculated this as 4.4% per annum (attached as Appendix 6). RESPONSE TO QUESTION 7 - loss calculations 62. In Question 7, the Accounting Experts are instructed to quantify the Applicant's loss for each of Questions 5 and 6 assuming the date of loss is 18 May 2016. 63. The experts have prepared the loss calculations using the same methodology as described in DL1-4.3.9 and DL1-4.3.10 Calculation basis - Question 5 loss calculations 64. The Accounting Experts have agreed on the following in calculating the Applicant's loss with reference to Question 5: a. Step 1 | Date of Loss: 18 May 2016, as instructed; b. Step 2 | But-For Scenario: Per the quantification in Question 5 for different periods of time; c. Step 3 | Actual Scenario: There has been no instruction on the Actual Scenario incentives and no information is available to the Accounting Experts to consider the Actual Scenario. Accordingly, the Accounting Experts have assumed that the Actual Scenario incentives are nil. The Accounting Experts agree that should information be provided to them in relation to actual earnings that the joint loss calculation could reduce. d. Step 4 | Lost incentive: This is calculated as the difference between Steps 2 and 3 above; and e. Step 5 | Calculation of the lost incentive at the Date of Loss: i. The Accounting Experts have provided a range of discount rates to reflect the potential risks associated with the Victorian Business Unit cash flows; ii. For the period FY16 to FY19: The Accounting Experts calculate the lost incentive based on the risk-free rate of 2.5% and alternately a 7.5% discount rate; iii. For the period FY20: The Accounting Experts calculate the lost incentive based on discount rates of 15%, and 20% to assist the Court. The 15% discount rate was selected as stated in Technology One's financial statements, and as described at DL1-6.3.13 to 6.3.16. A second rate is provided on the basis that the Accounting Experts agreed that as the Victorian Business Unit is a sub-section of Technology One and therefore less diversified, the risk profile of its cash flows may be greater. iv. The Accounting Experts agree that the proffered discount rates do not incorporate risk associated with the Applicant as an individual and that while they agree that such risks need to be considered, it is a matter for the Court to determine. 65. The Accounting Experts agree that mitigation should be considered within any quantification of loss and agree that should the Court determine that mitigation of lost incentive occurred and/or should have occurred that their calculation would change. 66. The Accounting Experts summarise their calculations of loss based on results from the Victorian Management Accounts to 30 September 2019 in the table below, attached as Appendix 9: Calculation basis - Question 6 loss calculations 67. The Accounting Experts have agreed on the following in calculating the Applicant's with reference to Question 6: a. Step 1 | Date of Loss: 18 May 2016, as instructed; b. Step 2 | But-For Scenario: Per the quantification in Question 6 for different periods of time; c. Step 3 | Actual Scenario: The Accounting Experts have not been instructed in relation to any Actual Scenario incentives and no information is available to the Accounting Experts to consider the Actual Scenario. Accordingly, the Accounting Experts have assumed that the Actual Scenario incentives are nil. The Accounting Experts agree that should information be provided to them in relation to actual earnings that the joint loss calculation could reduce. d. Step 4 | Lost incentive: This is calculated as the difference between Steps 2 and 3 above; and e. Step 5 | Calculation of the lost incentive at the Date of Loss i. FY16 (May to September only) to FY20: The Accounting Experts calculate the lost incentive based on a 15%, and 20% discount rate to assist the Court for the same reason as described at 64.e.iii above. A calculation using a further discount rate of 25% is indicatively provided to take into account the possibility that there is greater risk of the forecast cash flows not coming to fruition in the circumstances of Question 6 compared to Question 5. 68. The Accounting Experts agree that mitigation should be considered within any quantification of loss and agree that should the Court determine that mitigation of lost incentive occurred and/or was possible that their calculation would change. 69. The Accounting Experts summarise their calculations of loss based on results from the Victorian Management Accounts to 30 September 2019 in the table below, attached as Appendix 10: (Footnotes omitted). 891 I should now say something about the underlying assumptions of those three questions and that to which the experts are responding. Question 5 is premised on calculating (estimating) Mr Roohizadegan's future entitlements to incentives having regard to TechnologyOne's actual results to the end of FY2019, and then projecting forward, but only in respect of the final year. Question 6 is premised on their calculating his future entitlements based on Mr Roohizadegan's actual performance prior to 18 May 2016 (based on the three previous years) and then projecting forward from that point. In doing so, the experts necessarily had to apply an assumed rate of growth of Profit Before Tax (which I have earlier abbreviated to PBT) for the whole period to the end of FY2020: rather than referring to the actual growth achieved by the company. In answering Question 7 the experts were instructed simply to take the outcomes of each of those differently premised sets of calculations (i.e. the answers to both Question 5 and Question 6) and, in each case, to calculate an estimate of the appropriately discounted net present value of Mr Roohizadegan's loss: adding interest on that discounted loss as they have calculated it quarter to quarter. 892 In examination of the expert accounting witnesses, Mr Minson secured Mr Lee's assent to the proposition that it could be that by commencing the calculations in Question 6 from the date of Mr Roohizadegan's termination the assumptions underlying that question had required he and Ms Grimley to disregard whatever large deals TechnologyOne might have secured after his termination. That included deals which in reality were secured only because of Mr Roohizadegan's prior negotiations: the La Trobe deal being one example. However, Mr Lee and Ms Grimley responded that they had applied standard accounting rules in answering Question 6 (albeit that those rules did not mandate inflexibility). Further, they gave evidence that the hypothetical growth rate of 4.4% they had used to project future PBT for TechnologyOne was a countervailing factor that would capture some of Mr Roohizadegan's work in that regard (see the evidence of Ms Grimley at T765, line 47). 893 I take Mr Lee and Ms Grimley to accept however that if the Court were satisfied that closure of those deals was a mere formality, adjustments to the calculations could be made. There would be nothing contrary to good accounting practice in the Court, if it accepted that the correct course was to apply the methodology underlying Question 6, then increasing the base figure for Mr Roohizadegan's actual performance up to his termination and recalculating from that different starting point. Both agreed that factoring in Mr Roohizadegan's outstanding deals at the starting point was an alternative to simply leaving the possibility to be taken into account by the assumed growth rate of 4.4%, but gave evidence that that had not been an issue that they had considered (T766, lines 15-21). 894 That possibility need not be further considered. That is because as at the conclusion of their examination each of Mr Lee and Ms Grimly gave expert opinion that they regarded the assumptions underlying Question 5 to be more realistic (T767, line 43-T768, line 9): His Honour: Being, again, crude about this, if the court is being asked to choose between the assumptions that underlie question 5 and question 6, the sounder basis, you say, I assume from that answer, would be to apply those in - that relate to actuals. Ms Grimley: That's my opinion, yes. His Honour: Yes. Mr Lee: Your Honour, I agree with that. The actual information can reflect more regarding the hypothetical. So we have a reference point. It may not be exact, but it is a stronger indication than hypothetically using the question 6, I will call it the line in the sand, right up until termination. 895 I gave counsel the opportunity to examine on that evidence, but neither sought to do so. I will therefore use the calculations at Question 5 as then flow into Question 7 as the sounder basis on which to estimate Mr Roohizadegan's future economic loss. 896 On that premise, the net present value of Mr Roohizadegan's loss to the end of FY2020 (disregarding the possibility of mitigation and making no reduction for contingencies) depends on the discount rate to be applied. Neither expert was examined as to that question. Nor did they proffer a view as to whether the Court should apply the discount rates on which they premise the first (2.5% for FY2016-2019 and 15% for FY2020) or the second (7.5% for FY2016-2019 and 20% for FY2020) set of the calculations they provide at Table 7.1. The difference is that the application of the first approach results in a calculated loss of $2,984,108.00. The application of the second results in a calculated loss of $2,743,989.00. I infer that the experts agree (as they do not suggest otherwise) that either is open on proper accounting principles. 897 That difference is far from inconsequential. In the broader context of this case however, I do not think it greatly significant. I proceed on the basis that estimating future economic loss with absolute precision is not realistic. Mr Roohizadegan has the burden of proving his loss. His counsel have not challenged the correctness of applying a higher discount rate. On that basis I am content to apply the lower bounded estimate of $2,743,989.00 as the maximum sum which Mr Roohizadegan might be awarded as forgone incentives (as at the date of their joint report) if he is otherwise entirely successful.

[64]

Did Mr Roohizadegan make the complaints he pleads? 898 I have earlier noted that in his closing submissions Mr Tracey disavowed reliance on any pleaded complaints other than the seven instances of Mr Roohizadegan exercising his workplace rights by having made complaints relating to his employment as he pleads to have been a reason or reasons for his dismissal, and: His proposed exercise of his right to bring legal proceedings under a workplace law; His proposed exercise of a safety net contractual entitlement; and His having a safety net contractual entitlement. 899 In respect of the first of those three latter matters, I proceed on the basis that a contention that Mr Roohizadegan was dismissed for proposing to bring legal proceedings arises out of the same facts as he has pleaded at [18A] of his Further Amended Statement of Claim which I discuss later in these reasons. I do not take it that it asserts a separate and distinct basis for the Respondents' liability. 900 In respect of the second and third of those latter matters, while I was never advised that they were abandoned I was not taken by Mr Tracey to any evidence as would enable the Court to conclude that such a consideration played a part in the Respondents' decision to terminate Mr Roohizadegan. To the extent that the matter remains live, I am satisfied that the Respondents establish on the balance of probabilities that neither was such a reason. To put no fine point on the matter, the evidence that I have heard establishes that Mr Roohizadegan was a serial complainer from the moment of his appointment in respect of his remuneration and his entitlements. There is nothing that I think establishes any premise that such a factor was taken into account by the Respondents in their decision-making. 901 It is unnecessary to say anything further about the other complaints that Mr Tracey has advised the Court are no longer pressed. 902 As to the seven pleaded complaints still pressed by Mr Roohizadegan in this proceeding, I take Dr Spry in his closing submissions to have not put in dispute that Mr Roohizadegan did in fact make the complaints he pleads at the following paragraphs of his Further Amended Statement of Claim: paragraph [22], being a complaint to Mr MacDonald made by email sent at 9.15pm on 25 April 2016, inter-alia about his having been bullied and directed not to attend a pre-scheduled meeting with a prospect; paragraph [23], being a complaint to Mr Di Marco made by email sent at 11.50pm on 25 April 2016, inter-alia about decisions having been made behind his back; paragraph [45], being a complaint to Mr Chung made by email sent on 13 May 2016 about his having been bullied by Mr MacDonald, and paragraph [40], being a complaint to Mr Di Marco made by email sent on 13 May 2016 about his having been bullied by Mr MacDonald; and paragraph [47], being a complaint to Mr Di Marco made by email sent on 15 May 2016 regarding his having been bullied by Mr MacDonald and more generally. 903 Dr Spry contends only that the timing and context of those complaints demonstrate that they did not play any part in Mr Di Marco's decision making. I will return to whether I should make such findings in due course. 904 Dr Spry however submits that I should find that Mr Roohizadegan did not make the complaint he pleads at paragraph [9] of his Further Amended Statement of Claim. There he claims that he complained to Mr Di Marco in a meeting on 3 February 2016 about threatening phone calls and behaviour to which he asserted Mr Harwood had subjected him. Dr Spry submits that I should accept Mr Di Marco's evidence that at no time had Mr Roohizadegan raised with him the fact that he felt bullied by Mr Harwood, in preference to the evidence that Mr Roohizadegan gave with respect to what was said during their meeting on that date. I need not repeat my reasons for rejecting that proposition. 905 I find it to have been convincingly established that Mr Roohizadegan did in fact make the complaint he pleads in paragraph [9]. 906 Dr Spry further submits that I should not accept that Mr Roohizadegan made the complaint he pleads at paragraph [18A]. That pleading relates to the verbal complaints he asserts he made to Ms Gibbons during her visit to Melbourne on 20 April 2016. Dr Spry refers to the allegation as being that Mr Roohizadegan told Ms Gibbons words to the effect that: TechnologyOne owes me a duty of care to protect me from bullying from Marie, Stuart, Peter and Martin. I have not been well since my daughter's medical condition, which I have discussed with you and Kathy Carr previously. TechnologyOne owes me a duty of care, and if TechnologyOne does not intervene I will be forced to bring legal proceedings against TechnologyOne. 907 In urging the Court to find that what Mr Roohizadegan pleads at [18A] should be rejected, Dr Spry places emphasis on two things. The first is that although Ms Gibbons had sent Mr Roohizadegan a link to TechnologyOne's bullying policy, he had not followed that up or made any formal complaint. The second is that Mr Roohizadegan's note of the relevant conversation with Ms Gibbons refers not to the prospect of him taking legal action against TechnologyOne, but rather to the prospect that "if this continues" an option was that "I may press legal charges against her [Ms Marie Phillips]". 908 Before returning to those propositions, it is worth summarising Mr Roohizadegan's evidence as is necessary to give context to the reference in his note to Ms Phillips. In his evidence Mr Roohizadegan stated that he had told Ms Gibbons that Mr Harwood, Mr Sutching and Ms Phillips had bullied him by marginalising him, stopping him from attending meetings with clients and preventing him from doing his job (T184, lines 14-30). It is uncontentious (putting aside their justification or motivation) that some directions capable of such characterisation had been conveyed to him by Ms Phillips. It is also uncontentious that Ms Phillips then reported to Mr Sutching. Finally, it is uncontentious that Mr Phillips had earlier reported directly to Mr Harwood. 909 I now return to Dr Spry's submissions. First, I reject that I am entitled to find that because Mr Roohizadegan did not follow up his verbal complaint to Ms Gibbons by making a more formal bullying complaint or commencing legal action before his termination I should conclude that he had not exercised his workplace rights in making that verbal complaint. Ms Gibbons was TechnologyOne's HR business partner with responsibility for Victoria. Mr Roohizadegan's evidence, which I accept, was that Ms Gibbons had conceded in their conversation that the conduct he had described to her was unacceptable. 910 That Mr Roohizadegan in fact did make a complaint of the nature he pleads at [18A] is wholly consistent with Ms Gibbons' later email to Ms Carr, in which she noted that Mr Roohizadegan had told her he was considering a bullying complaint against Mr Sutching and was "considering legal action due to this". That does not repeat all that, on Mr Roohizadegan's evidence, he had said to Ms Gibbons. However, it does corroborate his account in respect of the nature of their conversation. 911 Second, I reject Dr Spry's submission that Mr Roohizadegan's more specific reference in his later note that he might "press legal charges" against Ms Phillips should be seen somehow as inconsistent with his having told Ms Gibbons that he was considering legal action against TechnologyOne. In the intertwined circumstances of their work relationships it is entirely unrealistic that any legal action against Ms Phillips, Mr Sutching or Mr Harwood in respect of their bullying could be separated from their roles within TechnologyOne. 912 I am therefore satisfied that I am entitled to find that Mr Roohizadegan did make the complaint he pleads he made at paragraph [18A] of his Further Amended Statement of Claim.

[65]

Who was the decision maker and when was the decision taken? 913 I have earlier indicated that, notwithstanding what I accept are significant indications to the contrary (including what I have noted in my discussion with respect to credit findings as to certain facially contradictory evidence given by Mr Di Marco), on the balance of probabilities I accept the Respondents' contention that ultimately the sole decision maker responsible for terminating Mr Roohizadegan was Mr Di Marco: the then executive chairman of TechnologyOne. 914 Mr Tracey submits that the Court should find that the decision to terminate the Applicant's employment was a joint decision made by the Executive Team of the First Respondent, consisting of at least the Second Respondent, Stuart MacDonald, Kathy Carr, Edward Chung and Martin Harwood, and possibly also Roger Phare, Tony Ristevski and Paul Rogers. He submits that Mr Chung's evidence, even when viewed on its own, establishes this. He posits that Court should also find that Gareth Pye and Rod Hooper were decision-makers. There were, he submits therefore, 10 decision-makers. 915 There is clearly a strong foundation for that submission. As Mr Tracey points out, Mr Chung - the First Respondent's current Chief Executive Officer and Chief Operating Officer in 2016 - deposes in his first affidavit that "the executive team agreed at the 26 April 2016 meeting to terminate Behnam's employment". To the same effect Mr MacDonald acknowledged that in his affidavit he had deposed in reference to that meeting that "Adrian supported the decision to terminate Behnam's employment with TechnologyOne" and that "following an email from Rebecca Gibbons, the HR business partner, about the complaints made by the Victorian team about Behnam, the executive management team, being Adrian, Edward Chung, Kathy Carr, Martin Harwood and me, met in the Brisbane office on Monday, 26 April 2016 and decided that Behnam would be transitioned out of the Victorian state manager's role imminently" (T993, lines 9-20). 916 There is also the superficially troubling fact that Mr Di Marco himself not infrequently contradicted his own contention that he alone had made the decision to dismiss Mr Roohizadegan. For example, he deposed in his affidavit that "in hindsight, TechnologyOne should have terminated Benham's employment in late April 2016 after I and the Executive team first made the decision". In the Applicant's closing submissions at [2.42] Mr Tracey refers to four other similar instances. 917 However, I reject that submission for the following reasons. 918 First, until subjected to cross-examination, Mr Di Marco's manner of giving evidence was consistent with that of a person possessed of complete, even careless, self-assurance that whatever he asserted would not be questioned. 919 Thus when Dr Spry was asking him questions about who had been responsible for the decision to dismiss Mr Roohizadegan, Mr Di Marco was careful in his evidence to assert that he alone had been responsible. However, when the focus of Dr Spry's questions had turned to other matters Mr Di Marco gave the following unprompted evidence (T537, lines 1-12): So that made me think that it was now time to terminate Behnam. We had already decided to terminate him weeks earlier. I kept him on for the La Trobe deal. But given the fact that he was prepared to separate and he could see the writing on the wall, I thought we should maybe just do it and wear the consequences. So I talked to my executive team about that, that given Behnam was prepared to separate now, that maybe we should just go ahead and do the termination and not worry about La Trobe. Stuart assured me that he could manage the La Trobe issue and that he supported the termination. So given that everyone was in agreement, I rang Behnam and had a conversation with him that morning. That conversation was very brief, okay? I rang Behnam and I said to him, you know, "I would like you to come to Brisbane so we can resolve the matter." It was very, very brief. Now, I was walking a fine line, because I didn't want Stuart to go and terminate him. 920 I do not however draw from Mr Di Marco's carelessness - even to the point of recklessness - in giving that evidence the conclusion for which Mr Tracey contends. Rather, consistent with what I read to be self-assurance bordering on arrogance on his part, I am satisfied that the language that Mr Di Marco used in giving that careless answer reflected that he was unselfconsciously accustomed to using the "Royal plural". Although it may seem counter-intuitive, I am satisfied that Mr Di Marco's blithe indifference to any impressions that his choice of language in that regard might create reflected the circumstance that he ordinarily and routinely conflated his own interests and views with those of TechnologyOne. I am therefore satisfied that Mr Di Marco's evidence that "we" made a decision (which Mr Tracey asks me to take literally) reflects no more than that he did not always use "we" as a plural pronoun. Indeed, his evident indifference to that distinction left me in no doubt that Mr Di Marco meant no such thing. He had understood himself to have been, and was, the king of the jungle within TechnologyOne. 921 Second, of all the witnesses called on behalf of the Respondents who gave oral evidence only one did not give compelling testimony that Mr Di Marco had not at all times been the controlling mind of TechnologyOne with respect to the decision to dismiss Mr Roohizadegan. That was Mr Chung who, for self-evident forensic reasons, Mr Tracey chose not to cross-examine on his evidence which was consistent with the Applicant's contentions. 922 None of the witnesses Mr Tracey cross-examined were shaken in their evidence that Mr Di Marco had, in truth, been the person who called the shots. Their unanimity in that regard inclines me to the conclusion that they all took for granted that any power they possessed within TechnologyOne flowed from, and could readily be withdrawn by, Mr Di Marco. 923 Third, the evidence I have received in this trial taken as a whole is consistent with the conclusion that at all material times relevant to these proceedings Mr Di Marco had exercised personal control over whether TechnologyOne would continue to employ Mr Roohizadegan. 924 Mr Di Marco's complete control was manifested throughout the events leading up to Mr Roohizadegan's summary dismissal. That includes the meeting of TechnologyOne's Executive Team on 26 April 2016 to discuss Ms Gibbons' email. While the witnesses give slightly differing accounts as to when things were said, in substance they agree as to what occurred. Having regard to my credibility findings, I accept Ms Carr's evidence that Mr Di Marco stated the outcome that he wanted at the outset. When Ms Carr - as the head of TechnologyOne's HR team - had later objected that the complaints reported to Ms Gibbons were mere allegations requiring investigation and were not a proper basis for Mr Roohizadegan's dismissal, Mr Di Marco had responded that he did not want there to be an investigation. Ms Carr does not suggest she argued the point. He was the boss. She had immediately accepted that there was to be no investigation. 925 Mr Di Marco's evidence, which I am prepared to accept, is that the members of the executive then talked about "my decision to terminate" (T530, line 19). His evidence is that "they all agreed" (T530, line 19). 926 Mr Di Marco's evidence was also that "some of them, I think, had felt that this had been too long coming because of the other reasons, let alone this" (T530, lines 19-20). I interpolate that Mr Di Marco's evidence in that regard concerned his retrospective reflections as to what the Executive Team may have thought. It was not intended to be evidence of what they had actually said. All of the evidence of what was said in that meeting is consistent with it having been wholly concerned with what Ms Gibbons had reported in her email and what was to be done in consequence. That, of course, does not discount that the others in the meeting might well also have wanted Mr Roohizadegan gone for different reasons. 927 What then followed might be thought to reflect an almost ghoulish desire on the part of the members of the Executive Team to demonstrate their agreement with Mr Di Marco's stated viewpoint. Mr Di Marco's evidence was as follows (T530, lines 28-29): So and when I raised this issue, I mean, that was just, you know, like, what are we waiting for? Why are we delaying this? That was the attitude. 928 Mr MacDonald, who at that stage had yet to set foot in Victoria or to meet Mr Roohizadegan, put himself forward as the right person to sack him. Mr Harwood argued it would be better if he, as Mr Roohizadegan's recent past manager, carried out that task. Although no doubt the comparison is odious, I am left with the perception that the whole process had something of the character of decision making in North Korea with Mr Di Marco's loyal followers competing as to who would be allowed to shoot the traitor. 929 However, Mr Di Marco re-exerted control. He did not want Mr Roohizadegan's dismissal to be immediate. He told the Executive Team he was concerned that dismissing Mr Roohizadegan in the middle of his closing a "very large deal for us" with La Trobe could endanger that deal (T530, lines 35-39): This deal would have contributed about $3-$4 million in the year. That would have gone straight to the bottom line to our profit. And it was critical to us to meet out guidance to the market place of 10 to 15 percent. It was also strategic, because this was a big university moving to our cloud. And that was going to open up lots of other opportunities for us. 930 It is uncontentious that he exercised his unchallenged authority to ensure that Mr Roohizadegan's termination, if it were to happen, would have to wait until after the La Trobe deal was closed. 931 I use the words "if it were to happen" advisedly. My acceptance of the fact that Mr Di Marco said what Ms Carr reports him to have said at that meeting does not require me to accept that his conduct was motivated by the reasons he expressed at the time, or when later giving evidence. If needs be said, that Mr Di Marco was capable of deception is amply illustrated by the way he later went about persuading Mr Roohizadegan to attend his own execution. 932 I am satisfied that prior to the meeting of TechnologyOne's Executive Team on 26 April 2016 Di Marco had met with Mr Harwood to discuss what should be the outcome. In her evidence-in-chief Ms Carr stated that Mr Di Marco had commenced the meeting by saying "this guy has got to go". She gave evidence that Mr Harwood was present. Mr Di Marco then had asked the members of the Executive Team about their views. Her evidence-in-chief, led on behalf of the Respondents, was as follows (T1027, lines 19-28): Dr Spry: And then what happened after he made those remarks? Ms Carr: He asked others about what they thought, about whether - about the email and about whether Benham should be terminated. Dr Spry: And what's your recollection of - well, who - at the meeting you said Mr Harwood was present? Ms Carr: Mmm. Dr Spry: And what did he say? Ms Carr: He said, "You know my views." And I took that to mean that he spoken with Adrian prior and that he was in support of terminating his employment. 933 I draw the same inference. I note in that regard that Mr Harwood does not dispute that he had known what Ms Gibbons would report to the Executive Team at the meeting. He gave evidence that Ms Gibbons had already discussed the matter with him after her meetings in Melbourne. 934 It is with those observations in mind that I turn to what I should make of Mr Harwood having met with Mr Di Marco prior to the meeting. I am entitled to find that Mr Harwood had made his views plain to Mr Di Marco during that earlier meeting between the two of them. His later statement "you know what I think" makes that clear. 935 Having regard to their prior history, I am entitled to infer that Mr Harwood would not have been advocating for Mr Roohizadegan's retention. It is open to me to infer that it is unlikely that Mr Harwood would have been innocent of knowing that behind the scenes steps were already being put in place which would facilitate a quick decision. Mr Harwood was still at that time sharing responsibility with Mr MacDonald in the latter's new role as Operating Officer for Sales and Marketing. It is uncontentious that Mr MacDonald had asked Ms Gibbons to provide him with information as to Mr Roohizadegan's entitlements as would be relevant to his termination. 936 As to Mr Di Marco's state of mind at the time of his and Mr Harwood's meeting as took place prior to the meeting of the whole Executive Team on 26 April 2016 (the pre-Executive Team meeting), I proceed on the basis Mr Di Marco was substantially if not fully informed of the prior history between Mr Roohizadegan and Mr Harwood. 937 Ms Carr gave evidence that based on her conversations with Mr Harwood, as early as 9 September 2015 she had commenced preparing a script and communications plan for Mr Roohizadegan's termination. I stop short of inferring that those instructions to Ms Carr were countermanded by Mr Di Marco. The reason that Mr Roohizadegan was not dismissed at that time may be simply be that Mr Harwood thought better of drawing Mr Di Marco's attention to that step having been taken in awareness, to use his own words, that Mr Di Marco had a "blind spot when it came to Benham". Nonetheless I do not discount, having regard to the significance of that proposed action and that all significant matters were ultimately his call, that Mr Di Marco may have become aware - at the time or later - of Mr Harwood having made those plans. 938 Whether or not Mr Di Marco had come to learn of that earlier circumstance, he clearly knew that Mr Roohizadegan had told him when they met on 3 February 2016 that Mr Harwood had demanded that he not meet with him. Mr Di Marco was aware more specifically that that meeting, inter-alia, had concerned the exercise by Mr Roohizadegan of his workplace right to make complaints in relation to his employment not only regarding his being marginalised (as set out in his emails) but also in respect of Mr Harwood having threatened him that if he did not cancel that meeting then he or Mr Roohizadegan would have to go. Before he called Mr Harwood into that meeting, Mr Di Marco had asked Mr Roohizadegan not to tell Mr Harwood that he had informed him about Mr Harwood's threat. I am satisfied that the reason why Mr Di Marco asked Mr Roohizadegan to refrain from doing so is that Mr Di Marco wanted to avoid a blow up that would force that ugly issue. I have no reason not to draw the obvious inference that as at that time Mr Di Marco, as he told them after bringing them together, thought the world of both of them. Mr Di Marco's words and actions are consistent with his having been anxious, notwithstanding that history, to retain both employees. 939 Also in respect of Mr Di Marco's state of mind at the time of his and Mr Harwood's pre-Executive Team meeting I proceed on the basis that I am entitled to accept those parts of Mr Di Marco's evidence to the effect that historically he had had a high regard and real fondness for Mr Roohizadegan: a "soft spot". I do so notwithstanding Mr Di Marco's later utter ruthlessness in defence of what he understood to be TechnologyOne's interests once he had decided that Mr Roohizadegan was to be terminated. The fact that Mr Di Marco had held Mr Roohizadegan in high regard to that point was, if gracelessly, corroborated both by Mr Chung (who thought they were greatly alike in many ways) and Mr Harwood (who noted Mr Di Marco's "blind spot") in their evidence. It is consistent with Mr Roohizadegan having believed to the very end that Mr Di Marco would be in his corner, as his treating doctor Dr King had presciently observed: see above at [840]. 940 Finally, to set the scene as to what I am entitled to infer was the state of Mr Di Marco's mind at the time I note that I have rejected as entirely implausible his evidence that he had overlooked those parts of Ms Gibbons' email as refer to Mr Roohizadegan having complained to her about his having been bullied by Mr Sutching, and to his contemplating legal action. I note Mr Harwood's evidence is that Mr Sutching had been one of his direct reports before he became TechnologyOne's Operating Officer for Sales and Marketing in October 2014 (T1093, lines 9-13). I infer that Mr Di Marco would also have been aware of that fact. Further, he knew that just the day before Mr Roohizadegan had sent him an email complaining about decisions being made behind his back (which I infer would include those that had been made by Mr Harwood) and Mr MacDonald having instructed him not to attend a meeting with Melbourne University. 941 It is of course mere speculation as to what each may have said, or the precise path of each of Mr Di Marco's and Mr Harwood's thinking during the pre-Executive Team meeting. However, I take one thing to be clearly established: at the end of their meeting Mr Harwood knew that, whatever Mr Di Marco might say during the meeting of the Executive Team that was to shortly follow, he had not reached any final decision about Mr Roohizadegan's future. I reach that conclusion for the following reasons. 942 Mr Harwood conceded in cross-examination that a passage of his affidavit which had been redacted for the purposes of this proceeding had included an prior inconsistent assertion that at a later time than 26 April 2016, but prior to the incident on 12 May 2016 between Mr Roohizadegan and Mr MacDonald, a discussion had taken place between himself, Mr Di Marco, Ms Carr and Mr Chung. 943 Mr Harwood conceded (T1126, lines 40-43) that he had deposed in his affidavit that: In this meeting it was decided that Benham's employment with TechnologyOne had to be terminated. 944 While for these purposes it is not necessary to reach any concluded view, from the other evidence given in this proceeding I think it likely that this was the meeting that Mr MacDonald gave evidence of having occurred on 6 May 2016, at which Mr Di Marco had directed that the communications plan Ms Carr had drafted be altered to provide for him taking personal responsibility for effecting Mr Roohizadegan's termination. 945 I reject that Mr Harwood's subsequent answers to the questions asked of him in cross-examination by Mr Tracey provide a basis for me to find that he had any belief to the contrary. Presented with the opportunity to repudiate that to which he had earlier deposed, he stopped short of actually doing so. It is conspicuous that Mr Harwood avoided making the direct assertion that the operative decision to terminate Mr Roohizadegan's employment was made by Mr Di Marco on 26 April 2016. Mr Harwood confined his responses in cross-examination to the fact that on that earlier occasion "it had been discussed" and "it was certainly said" (T1126, line 40-T1127, line 29). 946 Whether or not Mr Di Marco did make his decision on or around 6 May 2016, I proceed on the basis that I am entitled to accept that at the time he swore his affidavit Mr Harwood had believed that the decision had been made later. 947 Mr Harwood also made no claim in his oral evidence-in-chief (when taken through the relevant events relating to the redacted portions of his affidavit by Dr Spry) that the decision had been made on 26 April 2016. I am satisfied that the most plausible explanation for that omission is that Mr Harwood knew, as a result of his discussions with Mr Di Marco, that whatever Mr Di Marco might say during the Executive Team meeting on 26 April 2016 the outcome was yet to be settled. 948 That I am entitled to accept Mr Harwood's concession that he had deposed that it was only at a time subsequent to 26 April 2016 that Mr Di Marco had decided that Benham's employment with TechnologyOne was to end as the truth is consistent with the objective facts of what later occurred. It is uncontentious that on 3 May 2016, Mr Di Marco had proposed a possible alternative which would have permitted Mr Roohizadegan to remain employed with TechnologyOne: a course to which Mr Harwood had stated he was opposed. It is also consistent with the circumstance that Mr Di Marco continued to ruminate upon whether or not he would be doing the right thing in his discussions with Mr Chung even later, on 17 May 2016. 949 What, then, to make of that circumstance? 950 First, my rejection of Mr Harwood's unpersuasive attempt to crab-walk away from the obvious import of his prior inconsistent statement adds to my being unpersuaded of the merit of Dr Spry's submission (at [135]) made in closing that the Court should find that Mr Di Marco had made his decision even earlier on 25 April 2016: immediately following his having received a copy of Ms Gibbons' email. Even without that additional foundation I would have concluded it to be implausible that Mr Di Marco, merely on the basis of receiving that email and without any further enquiry or investigation of whether there might be another side to the story, would have decided to sack Mr Roohizadegan: a man of whom on his own account he was fond and who had helped him build his business from a small start up to a significant company listed on the Australian Securities Exchange. 951 Moreover, Mr Di Marco knew that Mr Harwood had threatened Mr Roohizadegan that either he or Mr Roohizadegan would have to go. Because of that, I decline to discount that Mr Di Marco may have suspected that there was more to the story in Ms Gibbons' email than met the eye. However, on that understanding of the situation, for Mr Di Marco to have articulated any such suspicion may have provoked a crisis in which he might have lost Mr Harwood. By treating Ms Gibbons' email at face value in the meeting of the Executive Team but then later taking control and insisting that Mr Roohizadegan not be immediately terminated, he would save Mr Harwood "face" while buying time to reflect on what he should do. His temporising is consistent with Mr Di Marco still wanting to stave off having to make a choice between two senior employees, each of whom he wished to retain. 952 That analysis also makes sense of why Mr Di Marco was dismissive of Ms Carr's clearly sound and prudent advice that what had been reported by Ms Gibbons were mere allegations and that it would be unfair to act on them without investigation. I am satisfied, notwithstanding his assertions to contrary, that as the CEO of a listed company with established and published HR policies Mr Di Marco knew perfectly well that to act without investigation would be unfair and that Ms Carr's advice was sound. 953 Why, then, did Mr Di Marco resist that course? I am satisfied that there were two considerations in play. The first is that he did not want to risk provoking Mr Harwood. I have no doubt that Mr Di Marco "knew [Mr Harwood's] views". The second, and the one which is critical to the disposition of these proceedings, is that by the time the Executive Team met on the morning of 26 April 2016 Mr Di Marco knew that Mr Roohizadegan had already made three complaints (as he now pleads in paragraphs [9], [18A] and [32] of his Further Amended Statement of Claim) in relation to his employment. His complaints (limited to those which were at the time known to Mr Di Marco) had involved inter-alia allegations of bullying made on 3 February 2016 and 20 April 2016 respectively, as well as complaints about decisions having being made behind his back and his being marginalised as he had made on 3 February 2016, 20 April 2016 and 25 April 2016. Any formal investigation would risk tearing the scab off those raw sores. 954 Ms Carr's evidence-in-chief was that when Mr Di Marco - against her advice - had directed that there not be an investigation of the allegations against Mr Roohizadegan he had explained, cryptically, that "there were other issues in play here" (T1028, lines 37-38). I infer, in the circumstances applying, that those "other issues" included the two considerations to which I have referred above. It is sufficient, having regard to where the burden of proof lies, to record my finding that I am entitled to decline to discount that those two considerations were not at the forefront of Mr Di Marco's mind at that time. 955 I find that Mr Di Marco did not make the operative decision to terminate Mr Roohizadegan at, or before, the meeting of TechnologyOne's Executive Team held on 26 April 2016. 956 Consistent with my so finding is the fact that just over a week later on 3 May 2016, it is uncontentious that Mr Di Marco had convened another meeting of the Executive Team to discuss the possibility that Mr Roohizadegan might be retained and whether he could work elsewhere in the business. Ms Carr again unsuccessfully pressed that Mr Roohizadegan should not be terminated without an investigation of the allegations against him (T1069, lines 39-43). Mr Di Marco specifically proposed that Mr Roohizadegan might be given the role of "strategic advisor". Ms Carr expressly conceded that during that meeting consideration was still being given to Mr Roohizadegan being redeployed within the company. I am satisfied Mr Di Marco would not have proposed Mr Roohizadegan's continuing employment with TechnologyOne in any capacity had he accepted on face value the "flabbergasting" account that Ms Gibbons had provided in her email (and recounted orally at the meeting on 26 April 2016) as to the position in Victoria. 957 Mr Harwood and his recent successor Mr MacDonald objected to the possibility that Mr Roohizadegan might be employed in a different role. Confronted by their resistance, it seems uncontentious that Mr Di Marco yielded: at least superficially. The notes Ms Carr made at the time (Ex R64) conclude: "Do it now - minimise the pain. Latrobe very important. Meet with Latrobe put the timeline together. A couple of payments to keep him quiet. Maybe over 12 months". However, Ms Carr had no recall of who said those words. 958 Ms Carr refers to in her affidavit to the "consensus" of the 3 May 2016 meeting having been that "although the La Trobe University deal still had to be resolved the Executive Team decided to terminate Benham's employment as soon as possible". Ms Carr's firm and unshaken evidence in cross-examination was that she had expressed herself poorly, because "no one in that room could make the decision but Adrian [Di Marco]" (T1070, line 32). I have accepted her evidence in that regard. I am therefore sceptical that I should conclude that what Ms Carr took to have been the "consensus" of that meeting was necessarily coincident with Mr Di Marco's state of mind. Further, even if that were his state of mind I am sceptical that it might not have been altered if he could think through a way of squaring the circle as would permit him to retain both Mr Harwood and Mr Roohizadegan. 959 That brings the Court to the events of 6 May 2016. That day involved a meeting about which Mr MacDonald gives evidence. I have earlier noted that that occasion seems to be the most likely candidate as the meeting at which Mr Harwood believed Mr Di Marco had made his final decision. Each of Mr Harwood and Mr MacDonald's accounts of that meeting involved the same people, except that Mr Harwood does not refer to Mr MacDonald having been present at it and vice versa. Nonetheless, the timing fits and in context it seems likely: whereas I find it implausible that the occasion of the decision-making was the meeting of 3 May 2016. The other witnesses refer to the 3 May 2016 meeting as having been a formal meeting of the Executive Team, which was not as Mr Harwood described what he understood to have been the fateful meeting. 960 In any event by 6 May 2016 things, objectively, had started to fray at the edges. From Mr Di Marco's perspective (assuming it was as I infer it may well have been), the prospect of a constructive solution becoming available which would allow him to keep both Mr Harwood and Mr Roohizadegan would have looked increasingly remote. Circumstances were beginning to press in and wedge Mr Di Marco in place, constraining his decision making. As an example Mr Roohizadegan had made Mr Di Marco aware that Mr MacDonald, against his objections, had arranged to meet with La Trobe. Another example is that Ms Gibbons had told Mr Roohizadegan that he required approval from HR to purchase Gold Class movie tickets to reward his sales staff. That had compelled Mr Di Marco to intervene, describing her conduct as "plain stupid" and "embarrassing". 961 It was in that context that Mr Di Marco on 6 May 2016 reviewed the draft communications plan. He required changes to Mr Roohizadegan's compensation to make it fairer, and insisted that it be changed such that he rather than Mr MacDonald would have the responsibility of carrying it out. 962 I accept that Mr Di Marco thus taking responsibility for that aspect of the termination lends some credence to Mr Harwood's understanding that from that point of time the rest was mere formality. However, I decline to accept that that is determinative of the finding I ought to make as to the most probable point of time at which Mr Di Marco made an irrevocable decision. I do not accept that Mr Di Marco necessarily, by that action, revealed his hand to Mr Harwood; although I think it understandable that Mr Harwood drew that conclusion. 963 Rather, my preferred path of reasoning is that Mr Di Marco was simply removing the possibility that Mr MacDonald otherwise might take it upon himself to action Mr Roohizadegan's dismissal. Mr Di Marco himself acknowledged in his evidence that he had been "walking a fine line, because I didn't want [Mr MacDonald] to go and terminate him". His substituting himself for Mr MacDonald as having that responsibility would ensure that he would be in a position to control events if the possibility of a win-win solution emerged or could be formulated. I do not discount that Mr Di Marco may still have been planning to use Mr Roohizadegan's anticipated success in closing the La Trobe deal as the basis for TechnologyOne keeping him without humiliating Mr Harwood. I reject entirely that Mr Di Marco had the least confidence that Ms Gibbons' reporting was a sound basis for Mr Roohizadegan's termination. The objective evidence of the amendments to the communications plan which he was involved in making on or around that time reveals that all reference to adverse staff focus groups were removed in circumstances that allow me to infer that Mr Di Marco either instigated or was aware of those changes (T1081, line 18-T1082, line 37). I am comforted in my conclusion by Mr Chung's evidence that as late as 17 May 2016 Mr Di Marco was still raising with him whether terminating Mr Roohizadegan was the "right thing" to do. In that regard Mr Di Marco expressly referred to the fact that while both of them had then been told about what had happened in Victoria, they had no solid evidence. 964 It was into that fissile circumstance that Mr MacDonald unwittingly blundered: or wittingly manoeuvred himself. His innocently clumsy or deliberately disruptive conduct of 12 May 2016 as occurred during the meeting of TechnologyOne's State Managers in Brisbane removed any remaining possibility that there might be a win-win outcome. As Mr Chung acknowledged in his evidence-in-chief, "the blow up between [Mr MacDonald] and [Mr Roohizadegan] on 12 May meant that the timing of [Mr Roohizadegan's] termination of employment should be sooner rather than later". That assumes, contrary to the inferences that I think to be more plausible, that prior to that time all that had remained was the question of timing. However, Mr Chung's substantive point is good: whatever the truth of that assumption. 965 Mr MacDonald's conduct generated a new round of bullying allegations by Mr Roohizadegan as are pleaded at paragraphs [27], [40] and [45] of his Further Amended Statement of Claim. In those circumstances Mr Di Marco would have been, perhaps painfully, aware that either a full and comprehensive investigation was required (which would have risked exposing the bullying behaviour that had been endured by Mr Roohizadegan, and perhaps risked the loss now not only of Mr Harwood but also Mr MacDonald) or that his termination would have to be confirmed after only a derisory examination of his complaints in those regards: whatever the legal risks that that course might involve if Mr Roohizadegan declined to enter into TechnologyOne's deed of release. Any possibility in Mr Di Marco's mind that Mr Roohizadegan might be reprieved and the whole messy business be happily resolved once he had proved his worth to TechnologyOne yet again by securing the large new contracts on which he was still working or by some other happenstance, had thus entirely evaporated. 966 On the balance of probabilities I am satisfied that it was only after the events of 12 May 2016 that Mr Di Marco reconciled himself to making a decision to terminate Mr Roohizadegan.

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Do the Respondents displace the statutory presumption that the adverse action they took against Mr Roohizadegan was for a prohibited reason? 967 The adverse action Mr Roohizadegan pleads to have been taken against him is the termination of his employment with TechnologyOne. I do not take Dr Spry to suggest that his termination was not relevantly an "adverse action". In any event, I am satisfied it plainly was adverse action within the language of s 340 of the Fair Work Act. 968 I have earlier stated my reasons for concluding that Mr Roohizadegan had a relevant workplace right to make a complaint in relation to his employment. I am therefore satisfied that each of the seven complaints I have concluded Mr Roohizadegan made were made by him as an employee of TechnologyOne in relation to his employment within the meaning of s 341(1)(c)(ii) of the Act. 969 I have also earlier set out and discussed the relevant provisions of the Fair Work Act. It is unnecessary to repeat what I have observed in those regards, save to recall that s 340(1)(a)(ii) relevantly prohibits a person taking adverse action against another person because the other person has exercised a workplace right. Section 360 relevantly makes clear that a person takes action for a particular reason if his or her reasons for the action include that reason. Where such a circumstance is alleged to have occurred, the statutory presumption in s 361 is engaged. The action of dismissing Mr Roohizadegan is therefore to be presumed to have been taken for the prohibited reasons he alleges unless the Respondents prove otherwise. 970 I thus turn to whether I should be satisfied that the Respondents have discharged their onus to displace the statutory presumption provided for in s 361 in respect of the seven complaints that Mr Roohizadegan pleads as being Mr Di Marco's reasons, or being included within his reasons, for dismissing him. 971 In so articulating the task, I proceed on the basis of my finding that Mr Di Marco was the sole decision maker. My task is therefore to come to a view as to his state of mind, having regard to the whole of the evidence. For that reason I have taken care to at least summarise all the evidence the Court has received from the witnesses called by the respective parties, no matter how little light it might seem to cast on that subject. However, having undertaken that task I remain satisfied that much of that evidence is immaterial to the questions that I have to decide. That is because the objective reasonableness or otherwise of the reasons of which Mr Di Marco gave evidence as having motivated the decision to terminate Mr Roohizadegan is largely irrelevant. 972 In and of themselves, any conclusions that the Court draws as to what it might or might not consider to be objectively unjustifiable as a reason for termination cannot serve as a foundation for rejecting Mr Di Marco's evidence as to his own state of mind. All that can be said if the Court draws conclusions that the reasons as to which Mr Di Marco gave evidence were objectively unsound is that the objective circumstances do not reveal or point to any additional positive factors that the Court should weigh in the balance when evaluating whether or not it should be satisfied that Mr Di Marco subjectively did act for the reasons for which, on his evidence, he decided to dismiss Mr Roohizadegan. 973 Dr Spry's most fundamental submission is that I should accept that none of Mr Roohizadegan's complaints in respect of his workplace rights were, or could have been, in Mr Di Marco's mind when he made the termination decision on the basis of his evidence that he had made that decision on 25 April 2016: before he had become aware of any of them. I have earlier given my reasons for rejecting that proposition. I need not repeat them. It is sufficient that the reader recall that I have concluded that Mr Di Marco finally ceased temporising and made his decision only after the events of Thursday 12 May 2016. 974 I am satisfied that when Mr Di Marco made that decision, he had full knowledge of all seven of Mr Roohizadegan's pleaded workplace complaints. 975 I have found that prior to his meeting with his Executive Team on 26 April 2016 Mr Di Marco was well aware of (a) Mr Roohizadegan's earlier complaints about Mr Harwood; (b) the complaints Mr Roohizadegan had made to Ms Gibbons as were recorded in her email; and (c) the complaints Mr Roohizadegan had conveyed to Mr Di Marco by email later on 25 April 2016 about decisions being made behind his back. 976 I accept Dr Spry's submission that Mr Di Marco may not have known at the time the Executive Team met that Mr Roohizadegan had also complained to Mr MacDonald about his having been bullied (paragraph [22] of his Further Amended Statement of Claim). However, Dr Spry's closing submissions acknowledge that Mr Di Marco was informed of that additional complaint sometime that day (see at [3.64]). 977 I am satisfied that Mr Di Marco then became aware of Mr Roohizadegan's three further complaints (as pleaded) and their seriousness almost immediately after their having been electronically communicated. Mr Roohizadegan emailed the first two of those further complaints (all of which related to aspects of Mr MacDonald's alleged bullying conduct of 12 May 2016) to TechnologyOne on the morning of Friday 13 May 2016. One email was addressed to Mr Di Marco, and the other was addressed to Mr Chung. Given its significance, I am entitled to infer that Mr Chung would have acted swiftly to inform Mr Di Marco of the email that had been sent to him. Mr Roohizadegan emailed the third complaint to Mr Di Marco later on Sunday 15 May 2016. 978 Because of the weekend having intervened, I am entitled to find that Mr Di Marco received and read all three of those emails before he had had any opportunity either to make enquiries about what had happened or to solicit the advice of the other members of his executive as to what was to be done. It was via Mr Roohizadegan's complaints that he learned about what had happened on the previous Thursday, and only after receiving those complaints did he take that opportunity. That is the import of his own evidence (T534, line 39-T535, line 3). I am therefore satisfied that he had full knowledge of their content before, on my findings, he committed himself to the decision to pull the trigger on Mr Roohizadegan's termination. 979 It has been suggested in these proceedings that Ms Gibbons exaggerated what she reported being told by a number of the Victorian sales team of TechnologyOne in her email and oral report. Having reviewed the evidence, I am satisfied that that is the case. However, for the reasons I have explained that is irrelevant if I am satisfied that Mr Di Marco actually believed the truth of her account and later took the adverse action he ultimately did because of his holding that belief. Similarly, the Court might find (as it has) that Mr Di Marco did not have any objective basis on which to have concluded that Mr Roohizadegan was in the third of three years in which he was not going to produce growth for TechnologyOne. That however is also of no consequence if I accept his evidence that he had been told that, and believed what he had been told in that regard. Again similarly, it is immaterial that the Court might conclude (as it does on the basis of Mr Thompson's evidence) that Mr Di Marco had no objectively sound basis on which to have held the belief that Mr Roohizadegan had been unable to work constructively with his three his most recent managers if the Court finds that he genuinely held that belief. 980 However, the objective documentary evidence and the evidence of other witnesses nonetheless may be highly significant if it goes either to corroborate or contradict an earlier conclusion in relation to Mr Di Marco's credibility. Reviewing the evidence as a whole after it has been received may require such a finding to be revaluated. That is why any final assessment of a witness's credit must be deferred to allow consideration of the evidence as a whole. 981 In that regard, my initial credibility finding as I have made above is that Mr Di Marco's evidence as to his actual state of mind cannot be relied on as the truth. Mr Di Marco gave the evidence in respect of which I formed that adverse view at a relatively early point in this proceeding. At that time, the Court necessarily could not be astute to all of the detail of the evidence which might be later adduced. 982 However, having had regard to the evidence taken as a whole I am satisfied that critical aspects of what I have heard and read serve to confirm the correctness of that finding rather than to contradict it. 983 Thus Ms Gibbons gave evidence that at the meeting of the Executive Team on 26 May 2016 Mr Di Marco asked her to "reiterate what Peter [Sutching] had said in his email to Benham". Her evidence-in-chief in that regard is entirely inconsistent with this Court accepting Mr Di Marco's inherently improbable account that had not read or absorbed anything about Mr Roohizadegan's bullying complaint as had been recorded by Ms Gibbons. To the contrary it reveals that Mr Di Marco was fully aware of, and acutely interested in knowing the scope and nature of, that bullying allegation. 984 Similarly, Mr Harwood's acknowledgment in cross-examination that he had made a prior inconsistent statement to the effect that the decision to terminate Mr Roohizadegan was taken by Mr Di Marco at a later and smaller meeting attended by a limited number of key staff of TechnologyOne is not without significance. I have concluded that it is more probable than not that the actual decision was made later in time than Mr Harwood understood it to have been made. That, however, is not the critical point. Mr Harwood's acknowledged prior inconsistent statement in his sworn affidavit is wholly inconsistent with my accepting Mr Di Marco's already inherently improbable evidence (improbable in that it is uncontentious that he later proposed other solutions which would have retained Mr Roohizadegan as an employee of TechnologyOne) that he had come to a final decision that Mr Roohizadegan was to be dismissed on the evening of 25 April 2016. 985 I conclude likewise in respect of Mr Chung's evidence-in-chief at [67] of his affidavit that as at 6 May 2016 Mr Di Marco had told him and other senior TechnologyOne staff attending that meeting that "we had not given [him] enough time to consider the termination plan and management of it. Therefore he was not yet ready to terminate [Mr Roohizadegan's] employment". 986 The next matter I mention is that Ms Carr later gave evidence as to the changes that Mr Di Marco had initiated in the course of the 6 May 2016 meeting to the communications plan she had been developing. Those changes not only substituted Mr Di Marco for Mr MacDonald as the person who was to effect Mr Roohizadegan's termination. They also removed the references that Ms Carr had earlier included in the plan to the adverse focus group feedback. That latter circumstance suggests that whether or not Mr Di Marco had initiated that particular change, he was either already aware or was then made aware that Ms Gibbons' email was not a reliable basis upon which he and TechnologyOne were entitled to proceed. 987 The same is even more starkly revealed by an aspect of Mr Chung's evidence. At paragraph [69] of his affidavit Mr Chung deposes to the conversation he had with Mr Di Marco on 17 May 2016: the day immediately prior to Mr Roohizadegan's termination. I have earlier discussed that aspect of Mr Chung's evidence in another context. For present purposes however it is sufficient to note that on any view it reveals that on the very eve of Mr Roohizadegan's dismissal Mr Di Marco had expressed concern as to whether dismissing Mr Roohizadegan without any solid evidence and on a purely hearsay basis was the right thing to do. I take that to have been a reflective observation by Mr Di Marco as to the reality of the situation: not, as Mr Chung suggests, a direction to him to investigate whether there was any such solid evidence. I am satisfied that at that point of time the die was set; Mr Roohizadegan was already on his way to attend his termination meeting, and there was no going back. 988 Mr Di Marco's awareness of the frailty of that critical premise is entirely inconsistent with his evidence that he had been satisfied, without the need for any investigation, of the truth of what Ms Gibbons had reported. It will be recalled that Mr Di Marco gave evidence of her email being one of the worst emails he had received in 33 years of business, and that he referred to the email "just an atrocious, atrocious email and horrible". I accept that that may be a fair description of that email, but not for the reason as to which Mr Di Marco gave evidence. It was horrible because Ms Gibbons had taken the liberty of exaggerating the import of what had been told to her. I am satisfied that the subsequent evidence of Ms Carr and Mr Chung reveals that by the time of his acting to dismiss Mr Roohizadegan, Mr Di Marco no longer had any actual belief in the truth of what Ms Carr had twice advised him were mere allegations. 989 A similar instance of an item of evidence emerging to reinforce my confidence in rejecting Mr Di Marco's credit arose in the course of Mr Harwood giving evidence. Mr Harwood confirmed that he had prepared a formal report to TechnologyOne's board (chaired by Mr Di Marco). In his report, Mr Harwood had expressed confidence that the deals that Mr Roohizadegan and his team were working to secure for the Victorian region (including the La Trobe deal) would be achieved for FY2016. By contrast, in his evidence-in-chief Mr Di Marco had initially boldly referred to TechnologyOne facing a "train smash" in Victoria (T538, line 33). 990 The additional circumstance that Mr Harwood reported formally to the board that he was confident that those deals would be secured confirms my scepticism with respect to the proposition that Mr Di Marco actually had any belief in a forthcoming "train smash": whatever he might otherwise have been told. I reject as implausible that Mr Di Marco would not have read and understood the quite different import of Mr Harwood's report to TechnologyOne's board. 991 In Barclay French CJ and Crennan J made the following observations with respect to the underlying rationale for the inclusion of s 361 in the Fair Work Act, in a passage that I understand not to have since been doubted: 49 A statutory presumption and correlative onus of the kind now found in s 361 of the Fair Work Act can also be found in earlier provisions. In his second reading speech on the Commonwealth Conciliation and Arbitration Bill (No 2) 1914 (Cth), the Attorney-General, Billy Hughes, identified the rationale for the statutory presumption in favour of the employee, and the placing of an onus on the employer, as being the need to remedy the ease with which an employer might avoid liability. 50 The following description of a legislative predecessor to s 361 given by Mason J in General Motors-Holden's Pty Ltd v Bowling remains pertinent: "the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge." 51 Observations about the rationale for including s 361 in the Fair Work Act are consistent with the abovementioned descriptions of the evident purpose of its legislative predecessors. 52 Since the enactment of the Workplace Relations Act 1996 (Cth), the general protections have been enforced through a civil penalty regime, which replaced the criminal offence regime that had been in place since 1904. (Footnotes omitted). 992 Having regard to that policy I note that in Pascoe v Commissioner of Taxation (1956) 30 ALJ 402, Fullagar J said at 403: Where a person's purpose or object or other state of mind in relation to a given transaction is in issue, the statements of that person in the witness box provide, in a sense, the "best" evidence, but, for obvious reasons, they must, as Cussen, J., observed in Cox v. Smail ((1912) V.L.R. 274, at p. 283), "be tested most closely, and received with the greatest caution". 993 However, it is not necessary in this proceeding to be remotely so cynical. Even approaching the question without any such caution, I am wholly satisfied that the Court cannot accept Mr Di Marco's evidence as to his state of mind in respect of the reasons for which he terminated Mr Roohizadegan. Having concluded that Mr Di Marco was aware of the complaints pleaded by Mr Roohizadegan when he finally resolved to take that action, I reject that I am entitled to find that he took the action he did for the reasons of which he gave evidence. I accordingly reject that his evidence can stand as proof (on the balance of probabilities) sufficient to displace the presumption provided for in s 361 of the Fair Work Act. 994 Taken as a whole, the other evidence in this proceeding equally does not compel me to infer (again on the balance of probabilities) that Mr Di Marco took the action he did for those reasons. 995 There is an alternative path of reasoning that I do not reject as less plausible. Indeed, were it necessary for me to have made findings without regard to the operation of the statutory presumption in s 361, I would have concluded it to be a preferable path of reasoning. 996 That alternative path of reasoning begins with the proposition that Mr Di Marco was well aware of the significance of the bullying allegations regarding Mr Harwood that Mr Roohizadegan had made to him on 3 February 2016. It accepts that Mr Di Marco had asked Mr Roohizadegan not to mention that he had spoken to him about Mr Harwood's threats. It proceeds on the basis that Mr Di Marco's request is explicable only because he did not want to bring the issue to a head, in the face of Mr Harwood having threatened that one of them would have to go. It assumes Mr Di Marco did not take that to have been an idle remark. It then assumes that Mr Di Marco informed each of them, as I have found to be the fact, that he valued them both and that he wanted to retain each of their services. 997 The alternative path of reasoning then has regard to the fact that notwithstanding whatever Mr Di Marco said to the members of his Executive Team on the morning of 26 April 2016, he had remained hopeful of finding a solution that would achieve two things. First, it would avoid pulling the scab off the issue that had arisen on 3 February and addressing the new bullying allegations Mr Roohizadegan had made as might lead to Mr Harwood's departure. Secondly, it would not require him to dispense with Mr Roohizadegan's employment. In view of that hope, he would pursue a strategy of stalling for time. 998 The alternative path of reasoning then draws on Mr Di Marco having put forward the option of retaining Mr Roohizadegan in a different role at a subsequent meeting of the Executive Team. However, the option he advanced in that regard was strongly resisted both by Mr Harwood and Mr MacDonald. The alternative path of reasoning then posits that Mr Di Marco, while having the power to do so, refrained from taking that course because to pursue it would risk him losing Mr Harwood who was still intent that Mr Roohizadegan had to go. 999 The alternative path of reasoning then has regard to the fact that notwithstanding that setback, Mr Di Marco continued to temporise. He still insisted that Mr Roohizadegan not be dismissed prior to his securing the deals on which he was working. To make sure that no precipitate action could be taken, Mr Di Marco insisted that he rather than Mr MacDonald be in charge of the process. 1000 The alternative path of reasoning then requires an inference to be drawn that Mr Di Marco may have been hopeful that with the passage of time the dynamics might shift in favour of his being able to retain Mr Roohizadegan (without any need to open a dangerous investigation into his bullying allegations) if he again proved his objective value to the business by securing those important deals. Mr Pye accepted that Mr Roohizadegan had referred to the La Trobe deal as the biggest deal the company had done: worth $23 million (see above at [626]). In those circumstances, Mr Harwood might have had to yield to the commercial good sense of that outcome. Given Mr Di Marco's preceding conduct and his disposition with respect to Mr Roohizadegan (which Mr Harwood described as his blind spot) such an inference, if not inevitable, is open to be drawn. 1001 The alternative path of reasoning then accepts that any such possibility had ceased to be practically available after the events of 12 May 2016, and after Mr Roohizadegan had made his further bullying complaints against Mr MacDonald. It accepts the force of Mr Chung's evidence that after that blow up a line had to be drawn and people had to move on. 1002 In the alternative path of reasoning, Mr Di Marco's options had then dramatically narrowed. He was left having to choose between keeping Mr Roohizadegan, or those that Mr Roohizadegan alleged had bullied him. The alternative path of reasoning assumes that if Mr Di Marco chose to retain Mr Roohizadegan, he would have done so in the knowledge that he was at risk of losing not only Mr Harwood but also Mr MacDonald who had so crudely lent himself to Mr Harwood's purposes. Such a decision would perhaps also open the door to a wider investigation of Mr Roohizadegan's bullying allegations as was likely to extend to the conduct of others such as Mr Sutching and Ms Gibbons, whose email report Mr Di Marco had by that time come to realise was at least exaggerated. 1003 Confronted by that raw binary choice, the alternative path of reasoning concludes that Mr Di Marco chose as the lesser of two evils to prefer the interests of his alleged bullies over the interests of Mr Roohizadegan. 1004 Of course, I need not make any such positive alternative findings. I have only articulated that hypothetical path of reasoning as against the possibility that it might be urged that notwithstanding my findings as to Mr Di Marco's want of credit, the objective facts and the evidence taken as a whole nonetheless require me to find on the balance of probabilities that the reasons Mr Di Marco asserted as his reasons were in fact the sole operative reasons for Mr Roohizadegan's termination, and that Mr Roohizadegan's seven pleaded instances of his having exercised a workplace right could not have been a substantial and operative factor in the decision to which Mr Di Marco came. 1005 If needs be said, wherever the burden of proof lies in that regard I am satisfied that Mr Di Marco was fully aware of the significance of Mr Roohizadegan's exercise of his workplace rights. I am entirely satisfied that Mr Roohizadegan's exercise of those rights became and was a substantial and operative factor in Mr Di Marco's reasons for taking adverse action against him. 1006 I therefore reject that the Respondents discharge their onus of rebutting the presumption provided for in s 361 of the Fair Work Act. To the contrary I am satisfied, having regard to that presumption, that the Applicant has established that by dismissing him the First Respondent took adverse action against him because he had exercised - on the seven occasions he pleads - a workplace right: in violation of the civil remedy provision as provided for in s 340(1)(a)(ii) of the Fair Work Act. Dr Spry concedes in his closing submissions (at [194]) that if I were to make such a finding I would also be entitled to find that the Second Respondent was accessorily liable. I so find.

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Pecuniary penalties 1010 Section 546(2)(b) of the Fair Work Act provides that the maximum pecuniary penalty which this Court can award against a body corporate for a single contravention of the general protections provisions is five times the maximum number referred to in the relevant item in column 4 of the table in s 539(2): that being the maximum penalty that may be awarded against an individual. The maximum penalty for an individual identified in that table is 60 penalty units. The maximum penalty for a body corporate is therefore 300 penalty units. 1011 Between 31 July 2015 and 1 July 2017, a penalty unit equated to $180.00. That period includes the date of the Applicant's termination, 18 May 2016. Thus the maximum penalty for a single contravention by the First Respondent is $54,000.00 and for the Second Respondent is $10,800.00. 1012 In his closing submissions, the Applicant accepts that the seven contraventions involving the making of complaints must be grouped together as one contravention for the purpose of assessing penalties. I proceed on that basis. 1013 In determining an appropriate penalty I am to have regard primarily to the issue of specific and general deterrence. The principal object is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contraveners, and by others who might be tempted to contravene the Fair Work Act: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 at [55]. 1014 Counsel are substantially agreed as to the relevant factors the Court should take into account. However, each agree that the ultimate task cannot be reduced to a mathematical equation: each case has its unique circumstances. 1015 In closing submissions Dr Spry, without pointing to any specific factors that might support that proposition, submits that any penalty should be at the lower end of the scale. 1016 By contrast, in their closing submissions Mr Tracey and Mr Minson invite the Court to impose penalties at the higher end of the scale. They submit to be relevant, inter-alia, that: 6.19 There was no urgency required with the termination. No attempt was made to raise or resolve issues with Mr Roohizadegan prior to him being dismissed. He was never given a chance to respond to the alleged complaints about his performance and behaviour. There was no investigation into allegations against him. 6.20 Mr Roohizadegan has suffered major loss and damage. Further, the mental injury caused by the conduct is likely to result in him never working again, as the psychiatrists' unanimous evidence has affirmed. 6.21 There is no evidence of similar previous conduct. … 6.24 The Respondents have not exhibited any contrition … … 6.26 Given the nature of the conduct and the fact that it was carried out by a publicly listed company it is submitted that the penalty should be larger rather than smaller. Deterrence, both general (to a greater extent) and specific (to a lesser extent), loom large as factors in determining an appropriate penalty in this case. 1017 The Applicant's submissions appear to me to be consistent with the recent reasoning of O'Callaghan J in Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 which I respectfully adopt: not to govern the outcome, but as providing useful guidance. 1018 Insofar as they relate to the conduct of the corporate offender, TechnologyOne, I accept Mr Tracey and Mr Minson's submission that, but for it being the company's first offence, those factors would justify imposing a penalty close to the highest end of the scale. I will impose a penalty of $40,000.00. Although there must be a discount for this being a first offence, a lesser amount would neither reflect the seriousness of the corporate contravenor's conduct nor respond to the need to impose a penalty which has regard to specific and general deterrence. 1019 Insofar as those same factors relate to the conduct of the actual individual decision maker, Mr Di Marco, they equally justify imposing a penalty towards the higher end of the scale: notwithstanding it being his first offence. It is possible to have some sympathy for Mr Di Marco, as he might be seen to have been effectively manoeuvred into a position where he had no good choices. However, he twice rejected professional HR advice that it would be unfair to dismiss Mr Roohizadegan on the basis of mere allegations. In the end, in Mr Roohizadegan's instance his choice was to stand with the bullies rather than the bullied. To achieve effective deterrence, CEOs in like positions need to know that such temptations as he faced are to be resisted: and that there will be a not insubstantial price for failing to do so. I will impose a penalty of $7,000.00. 1020 I will order, pursuant to s 546(3)(c) of the Fair Work Act, that those pecuniary penalties be paid to the Applicant.

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Future economic loss 1026 The Court's power to make orders pursuant to s 545 has been conferred by statute in broad terms. Its task cannot be limited by approaches derived from the general law. However, it is uncontentious that if the Court considers such an order to be appropriate it can make an order to compensate Mr Roohizadegan for any future economic loss he has sustained by reason of the Respondents' contravention of the Fair Work Act. I discern no reason why in undertaking such a task the Court should not avail itself of the experience of the common law with regard to the principles to be applied to the assessment of future economic loss, if it is satisfied that those principles are relevant and appropriate. 1027 At common law, damages are payable to compensate a person for a loss of future earning capacity where that loss of capacity is caused by reason of an injury which in turn has been caused by the wrongdoer's negligent act or omission, and the diminution of earning capacity is or may be productive of financial loss: Graham v Baker [1961] HCA 48; 106 CLR 340 at 347. 1028 Also at common law, the fact that a plaintiff may be predisposed to an injury caused by tortious conduct does not reduce his damages; the tortfeasor must take an injured person as he finds him or her. As Dixon CJ put it in Watts v Rake [1960] HCA 58; 108 CLR 158 at 160: If the injury proves more serious in its incidents and its consequences because of the injured man's condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay. 1029 I am satisfied, and I do not take Dr Spry to submit that I should not be, that in circumstances in which: (a) a person's capacity to have continued in remunerative employment has been demonstrated over approximately half a decade, notwithstanding their suffering from a depressive disorder; and (b) where expert psychiatrists uniformly opine that the person's dismissal for a prohibited reason has caused a significant aggravation of their pre-existing depressive disorder, with the consequence that they have lost their capacity to work and have a poor prognosis of ever regaining any capacity for remunerative employment in a position for which they would be otherwise qualified; the Court is entitled, within the meaning of s 545 of the Fair Work Act, to consider it appropriate to make an order compensating that person for the economic loss he or she has suffered: without any reduction by reason of the person having the pre-existing condition which their unlawful dismissal has aggravated. 1030 In my view, that analysis applies in Mr Roohizadegan's instance. 1031 Mr Roohizadegan's pleadings confine his claims for future economic loss to those in respect of the period ending 30 September 2020: that is, the period extending just over four years and four months from the date of his dismissal. His pleadings do not claim for future economic loss for the subsequent period ending in 2027 when, on instructions given to Mr Simms, he would have reached his planned retirement age of 65. 1032 Having regard to the findings I have earlier recorded I am satisfied that on the assumption that Mr Roohizadegan otherwise could have continued as an employee of TechnologyOne until 30 September 2020 then, making no reduction for mitigation or contingencies, he would be entitled to an award for future economic loss to that date in the amount of $3,568,528.15. I have arrived at that sum by adding together the $824,569.15 that the parties agree he has forgone as salary during that period (see above at [888]), and $2,743,989.00 as I have concluded is the maximum sum he would be entitled to claim for the incentives he was compelled to forgo (see above at [897]).

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Contingencies 1034 However, at common law a court is also required to take into account as potentially reducing an award those matters which might have affected the applicant's earning capacity: irrespective of the loss sustained due to the injury that is the subject of the proceedings. The major contingencies or vicissitudes that are routinely taken into account in personal injury matters are possibilities arising by reason of unrelated sickness, accident, or unemployment. While it must be adapted to a successful applicant's circumstances, the customary discount for such matters at common law is around 15%: see Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485 (Wynn) at 497. 1035 In the Respondents' closing submissions however, Dr Spry goes further. He advances the contention that Mr Roohizadegan is not entitled to any compensation at all for financial loss because the relationship between himself and TechnologyOne had irretrievably broken down. Citing Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 at [157]-[161] (Dafallah), Dr Spry submits that if the Court finds that Mr Roohizadegan was dismissed for a prohibited reason then it should also find that his employment would have been terminated in any event. As such, he is not entitled to the compensation he now seeks or any part of it: 185. The Applicant did not trust Mr Harwood, his manager from about October 2014 to April 2016, and it is clear he did not trust Mr MacDonald, who was only appointed his manager in April 2016, some five (5) weeks before his employment was terminated. He described both Mr Harwood and Mr MacDonald as his enemies. He considered that Mr Harwood, Ms Carr and Mr Dugina conspired with Ms Breen to complain about him. He considered that Mr MacDonald, who had that time had only recently been appointed, had made decisions behind his back. He did not trust Ms Phillips and Mr Sutching. The Applicant could not maintain working relationships with his supervisors and peers. He micro-managed his staff. His tenure as an employee of Technology One was very limited. (Footnotes omitted). 1036 However, the difficulty Dr Spry's submission faces is two-fold. 1037 First, it involves a strained reading of Mortimer J's reasoning in Dafallah. I do not take anything her Honour there states in respect of the quite different factual matrix of that case (which did not involve a dismissal for a reason prohibited by s 340 of the Fair Work Act) to require the conclusion Dr Spry draws. In any event, that circumstance plainly distinguishes it. It cannot sensibly be suggested that a person who has been bullied out of their job is to be denied compensation for its loss because the counter-factual is that but for their dismissal, they would have returned to a hostile workplace in which they would have been harassed again until they left. 1038 My conclusion that Mr Roohizadegan has made good his case has been based on the availability of the presumption in s 361 of the Fair Work Act. For that reason, I have not found it necessary earlier to make findings on the balance of probabilities that the concerns Mr Roohizadegan held about other TechnologyOne employees were not (as Dr Spry submits by implication) figments of his imagination. However, I am entitled to so find. I am satisfied that his understandings in those regards were, contrary to Dr Spry's suggestion, based on Mr Roohizadegan gradually coming to perceive - albeit with imperfect knowledge and through a glass darkly - that in fact he had been the subject of others' ill will. Insofar as Mr Roohizadegan in some instances has taken responsibility for such ill will and (as in the instance of his initial consultations with Dr White) attributed it to his own flaws, I am satisfied that this was a product of the malice of others: a phenomenon sometimes referred to as "gas-lighting". 1039 Having found that Mr Roohizadegan's dismissal to have been unlawful, in respect of the damages to which he is entitled I am satisfied on the balance of probabilities that Mr Harwood's conduct justified Mr Roohizadegan's want of trust in him. Mr Harwood's conduct, as I have found occurred, amounted to bullying. I am satisfied that Mr Roohizadegan was correct that Mr MacDonald was making decisions behind his back before even having met him, I infer having formed a negative impression of Mr Roohizadegan from what he had been told by Mr Harwood with whom he was then sharing his role. In those circumstances it would be an absurdly narrow construction of s 545 of the Fair Work Act to find that it precluded the availability of compensation for economic loss that that loss has been caused by a dismissal after bullying conduct: the continuation of which is the asserted reason why the employee is said to have no future in that workplace. 1040 Second, there is no plausible or even faintly realistic factual foundation in the actual circumstances of this case for the Court to reduce what would otherwise be the award it would make to compensate Mr Roohizadegan for his loss on the basis of the premise articulated by Dr Spry. 1041 Consider the counterfactual in which in the aftermath of his having made complaints about, inter-alia, bullying by Mr Harwood and Mr MacDonald, Mr Di Marco had decided to retain Mr Roohizadegan rather than dismissing him. In those circumstances it is highly likely that Mr Harwood would have chosen to bring forward his retirement. He had made it clear that either he or Mr Roohizadegan would have to go. He gave evidence that he had retired from TechnologyOne less than a year later. Mr MacDonald's future would have also come under real doubt. 1042 Even if both Mr Harwood and Mr MacDonald had stayed with the company, in any such realistic alternative scenario in which Mr Roohizadegan survived all that had been thrown at him, it would have been plain to those who had contrived in plans to get rid of him that there was nothing to be gained by further plotting against him. By such a decision the king of the jungle at TechnologyOne, Mr Di Marco, would have demonstrated that he still had Mr Roohizadegan's back. Given that Mr Harwood would have retired within a year, assuming he had not done so earlier, he would have left the scene shortly afterwards in any event. 1043 I turn then to what I understand to be Dr Spry's submission that Mr Roohizadegan's damages for future economic loss should be significantly reduced because his underlying depressive condition could have flared up at any time and prevented him working. 1044 Had Mr Roohizadegan not been dismissed, he would have achieved growth in licence fees (taking into account the La Trobe deal and others) of just shy of 10% for FY2016: notwithstanding all of the adversity he had endured. In those circumstances I reject that there is any basis on which to assume that had his employment not been unlawfully terminated, at some indeterminate point he would have become prey to a florid manifestation of his depressive condition: absent the triggering event of his termination. There is simply no evidence that any such thing was likely. The objective evidence is rather to the contrary; Mr Roohizadegan had managed his underlying condition, without his work colleagues ever having suspected him of its possession, for years. He had been awarded the Chairman's Award for excellence for his performance with respect to several of those years. 1045 I do not discount that it is hypothetically open that some unforeseen catastrophic event might in the future have similarly triggered a significant aggravation of Mr Roohizadegan's underlying condition: for example, if Mr Roohizadegan's marriage had failed or if his wife or his daughter had died. However, I do not attribute a high likelihood to either happenstance in the four year period to which he restricts his claims for future economic loss. There is no evidence to suggest that his daughter's ill health was such that she was at risk of suffering a further decline. Further, such evidence of which I am aware suggests that notwithstanding the strain to which their marriage must have been subject Mrs Roohizadegan has stood by, and can be expected to continue to stand by, her husband through thick and thin. 1046 At common law, the burden of adducing evidence to establish that a present incapacity would prospectively worsen would be on the Respondents: Purkess v Crittenden [1965] HCA 34; 114 CLR 164. TechnologyOne and Mr Di Marco have adduced no evidence to discharge that burden. I reject that I ought to reduce any award Mr Roohizadegan would otherwise be entitled to on such entirely speculative hypothesises. 1047 Those sort of possibilities are generally taken into account sufficiently by discounting any final award for the ordinary vicissitudes of life. 1048 I also would make no deduction for the contingency that Mr Roohizadegan might have later been dismissed because his management style and conduct towards his sales team were as Ms Gibbons recorded. It is significant that Dr Spry does not submit that I ought to proceed on such a basis. In any event, I reject that I should do so having regard to the findings I have made. 1049 In that regard, I note as follows. First, of the sales staff to whom Ms Gibbons spoke outside of TechnologyOne's Melbourne offices only one gave evidence in this proceeding: Mr Dugina. I have earlier discussed Mr Dugina's evidence, and need not repeat that discussion. In summary, my findings are that while I accept that Mr Dugina resented Mr Roohizadegan's micro-management I should reject his more serious allegations for the reasons stated (see above at [531]-[536]). 1050 The absence of the other persons to whom Ms Gibbons spoke as witnesses in this proceeding is unexplained. I am entitled to assume that their evidence would not have assisted the Respondents to establish there to be a sound basis on which to discount Mr Roohizadegan's damages on the premise that his management style might have become a proper basis for his termination. 1051 For reasons I have earlier set out, I reject that the evidence of Mr Jarman and Mr Finch establishes a foothold for such a contention. To the extent that their evidence goes broadly to Mr Roohizadegan's management style, I prefer and rely on the evidence of Mr Pantano (see at [468]) Mr Di Guilmi (see at [463]) and Mr David MacDonald (see at [454]). The picture I discern as to his management style, in the round, is that he was an "old school" leader. He was perhaps given too much to micro-management: an approach that some of his staff resented. However, that trait was balanced by many positives (as even Mr Jarman accepted: see above at [512], [519]-[520]). It was never a reason as would have justified his dismissal: then, or into the future. 1052 However, a distinct contingency which I am satisfied that I am entitled to take into account flows from the premise that Mr Di Marco later stepped down as CEO and Mr Chung succeeded him in that position. 1053 I am satisfied that Mr Chung's distaste for Mr Roohizadegan's style of pressure selling, of which he gave evidence, was genuine. Mr Chung's passing observation that Mr Roohizadegan and Mr Di Marco had much in common suggests to me that Mr Chung apprehended that the approach of the founders who had grown the company from small beginnings was too primitive for the next phase of the company's evolution. 1054 In any counter-factual where Mr Roohizadegan is retained by TechnologyOne, I think it likely that Mr Roohizadegan's tenure would have come under renewed scrutiny by the more technocratic Mr Chung once Mr Di Marco had handed over the reins to him as CEO. That had occurred in mid-2017. 1055 However, I find it implausible that Mr Chung would have made Mr Roohizadegan's removal a first order of business if he had survived the events of 2016. Moreover, I reject that Mr Chung would have sought to terminate Mr Roohizadegan's contract of employment otherwise than on the kind of terms that which on the evidence of Mr Simms would have allowed the latter to depart with strong prospects of his securing another job: that is, after notice and a golden handshake and with agreement that there be mutual non-disparagement. 1056 On the alternative scenario that Mr Roohizadegan was not dismissed Mr Di Marco, although stepping down as CEO, would have remained as chair of TechnologyOne's board. After the wrenching events of 2016, I am satisfied that had Mr Di Marco not dismissed Mr Roohizadegan Mr Chung would have been at pains to ensure that any arrangement for succession planning in Victoria would not provoke any further unnecessary turmoil within the company. The only way that could be guaranteed would be if Mr Roohizadegan was made, and accepted, an offer which allowed him to leave with dignity. 1057 I think it plausible that if such an offer were made, it would have been accepted. Assuming for the purposes of the counter-factual that Mr Roohizadegan's faith in Mr Di Marco remaining in his corner to the end had been vindicated rather than disappointed, Mr Roohizadegan nonetheless would have known that Mr Di Marco's departure as CEO left him with significantly diminished protection within the company. Accepting Mr Chung's offer would in those circumstances be a rational decision for Mr Roohizadegan to make. 1058 On such a premise, Mr Roohizadegan may have left TechnologyOne's employment on agreed terms at some point of time: most likely after some time had passed following Mr Chung taking over as CEO. I proceed on the basis that there is a 50% chance that that would have been the outcome. 1059 However, even assuming that had occurred Mr Roohizadegan's proven economic loss would not be greatly diminished thereby. It would not affect any period before he accepted an offer from TechnologyOne. With respect to the period which might be affected by that contingency, I proceed on the basis that it is implausible that any amicable negotiated arrangement could have been put in place before the end of FY2018. Even in respect of any period after that time, the foundational proposition is that Mr Chung would not have made an offer that did not provide Mr Roohizadegan with notice, non-disparagement and a golden handshake on the way out; and Mr Roohizadegan would not have accepted any other kind of offer. 1060 In such a circumstance I am entitled to find, in light of Mr Simms' expert evidence, that Mr Roohizadegan had a highly desirable CV and would have been readily able to find alternative employment. Another employer might well not have offered incentives quite as generous as those that Mr Roohizadegan had secured TechnologyOne. I am satisfied however that, his base salary would have been comparable or better, and the worth of incentives available would not have been less than two thirds of those he could have earned if he had stayed with TechnologyOne for those final two years. 1061 Having regard to the analysis above in taking into account the specific contingency that Mr Roohizadegan might have left TechnologyOne's employ in the relevant period had he not been dismissed, I therefore make no reduction in respect of the salary component of $824,569.15 that the respective parties have agreed Mr Roohizadegan did not receive. I also make only a modest reduction in respect of the $2,743,989.00 which I have concluded to be the maximum to which he proves he would be entitled for lost incentives. There can be no certainty as to what that modest reduction should be; the Court must do its best. It is unknowable exactly when Mr Roohizadegan may have left TechnologyOne: even assuming that I am correct in finding there is a 50% likelihood that he would have been offered that opportunity and would have availed himself of it at some point between 30 September 2018 and 30 September 2020. There can be no certainty as to the scale of the generosity of any golden handshake he might have been offered. All the Court can do is to indicate that it discounts the possibility of a meagre offer either being made or accepted. There can be no certainty as to whether or not Mr Roohizadegan's incentives in any other position he might have secured after leaving TechnologyOne would have been less. All the Court can do is assume, on the basis of the examples given by Mr Simms, that there may have been some reduction in the order of a third. I am satisfied that, without pretending to any precision, I should take those factors into consideration by simply reducing the starting position for the amount to be awarded to Mr Roohizadegan as forgone incentives from a maximum of $2,743.989.00 to $2,500,000.00, and by declining to award pre-judgment interest on that sum relating to calculations undertaken approximately a year ago. 1062 I would add to that balance the sum of $824,569.15 representing his agreed salary forgone. That comes to a total of $3,324,569.15. 1063 I would then apply a general discount to that amount of 15%, which is the amount the plurality in Wynn observed at 497-498 is usual to recognise the ordinary vicissitudes of life. I would make no further reduction for the usual vicissitudes given my reasoning at [1040]-[1051] and that Mr Roohizadegan has already, by his pleadings, forgone any claim for future economic loss beyond the end of FY2020: notwithstanding that he will not reach the retirement age of 65 for seven years after that. 1064 Doing so results in the Court making an award of $2,825,883.78 as Mr Roohizadegan's future economic loss suffered because of the Respondents' contravention of the Fair Work Act. That suggests implausible precision. I would accordingly round that sum down to $2,825,000.00.

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General damages 1065 At common law damages are payable for pain and suffering, which includes physical pain; mental illness or anguish; loss of enjoyment of life; and loss of the amenities of life. 1066 "Loss of amenities" refers to the destruction or diminution of a faculty or skill that causes "the deprivation of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer": Teubner v Humble [1963] HCA 11; 108 CLR 491 at 506 per Windeyer J. Such damages are awarded once and for all. If the damage is or may be permanent, then it has to be assessed for the duration of the applicant's life. While it is "impossible precisely to translate pain and suffering and the loss of enjoyment of life into money values", and no amount of money will restore an applicant to her pre-injury position, that is the purpose of an award of such damages. That means that an attempt must be made to assess a reasonable sum, having regard as far as possible to the prevailing standards of the community: O'Brien v Dunsdon (1965) 39 ALJR 78. 1067 Notwithstanding, there is no "tariff" on damages for pain and suffering. In Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 (Planet Fisheries) per Barwick CJ, Kitto and Menzies JJ observed at 125: The judgment of a Court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But …[t]he awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand. 1068 In the Respondents' written closing submissions at [186]-[189], Dr Spry points to the modest awards made in Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 ($5,000.00); RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 ($7,500.00) and Collison v Brighton Road Enterprises Pty Ltd (No 2) [2016] FCCA 1798 ($10,000.00) as indicative of the scale of compensation that it would be reasonable for the Court to provide for as general damages. Dr Spry submits an award of no more than $10,000.00 would be appropriate in the circumstances. 1069 By contrast, in his closing oral submissions Mr Tracey pointed to the more substantial awards for general damages for psychiatric injury made in Matthews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 ($380,000.00); Willett v Victoria [2013] VSCA 76; 42 VR 571 ($250,000.00) and Wright v Optus [2014] NSWSC 160 ($426,000.00) as the more relevant benchmarks. 1070 If common law principles can be accepted to be relevant to (although not governing) an award of compensation pursuant to s 545 of the Fair Work Act, then I am entitled to be mindful of the High Court's guidance in Planet Fisheries. I proceed on the basis that the awards that counsel have cited do not govern the outcome in this case. No two cases will be the same, and the consequences of apparently similar injuries can vary from one person to the next: Thatcher v Charles [1961] HCA 5; 104 CLR 57 per Windeyer J at 71-72. 1071 Turning to the facts of the present case, I regard it as significant that the Court has received almost no evidence going to the consequences of Mr Roohizadegan's psychiatric injury beyond that which is relevant to his claimed future economic loss. The medical experts called in this proceeding were not asked to opine on whether Mr Roohizadegan had suffered a significant loss of his enjoyment of life, above that to which he was subject in consequence of his pre-existing depressive illness. Other evidence is inconsistent with the Court drawing a conclusion that Mr Roohizadegan has proved any such additional loss. For example, it does not seem to be in dispute that Mr Roohizadegan quit participating in activities he had earlier enjoyed - such as piloting a light plane - well prior to his termination. His marriage was already under stress well before that time. The evidence, as I apprehend it, is consistent with Mr Roohizadegan's enjoyment of life prior to his termination already having shrunk to that which was sustained by his achievements at work. 1072 Accordingly, I accept Dr Spry's submission that only a relatively modest award should be made for any compensation by analogy to general damages pursuant to s 545 of the Fair Work Act. 1073 However, I am satisfied Mr Roohizadegan is entitled to more than a nominal award in that regard. His dismissal for a prohibited reason was effected only after when, against his doctor's advice, Mr Roohizadegan had accepted Mr Di Marco's request that he to travel to Brisbane in order to attend a meeting for which Mr Di Marco had apparently set aside five hours to discuss the events of 12 May 2016. 1074 Mr Di Marco's representations to Mr Roohizadegan to that effect were knowingly false and deceptive. Mr Roohizadegan's termination as then followed in consequence was accompanied within the hour by a company-wide announcement. Mr Roohizadegan was instructed not to go back to his office to collect his personal possessions; they would be sent on to him. I am satisfied that those unfortunate events added a not insignificant quantum of humiliation to the predictable shock and hurt that Mr Roohizadegan would have suffered simply by reason of the fact of his unlawful termination. I am satisfied that such humiliation became an element in his suicidal ideation immediately following that event. 1075 I will award Mr Roohizadegan $10,000.00 as compensation in the nature of general damages, having regard to the hurt and humiliation he was forced to suffer in consequence of the manner of his unlawful dismissal.

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Contract claim 1077 The general principles that are engaged in the construction of a contract are not in dispute as between the parties. In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471, Gleeson CJ, McHugh, Kirby Hayne and Callinan JJ stated (at [34]) "the 'general test of objectivity [that] is of pervasive influence in the law of contract'" dictates that "[t]he legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions". 1078 That conclusion was restated in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [38], per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ . In referring to Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 (at [25]), their Honours said: Although the word 'intention' is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties. 1079 Their Honours continued (at [40]): This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. (Emphasis added) 1080 The plurality (French CJ, Nettle and Gordon JJ) in Mt Bruce v Wright Prospecting [2015] HCA 37; 256 CLR 104 at [46]-[51] (Mt Bruce) again robustly restated the objective theory of construction in the following terms, which both parties agree bind this Court: 46. The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. 47. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. 48. Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. [ 49. However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals. 50. Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations. 51. Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties … intended to produce a commercial result". Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". (Footnotes omitted). 1081 Mr Roohizadegan signed his initial contract of employment (the Employment Agreement) with TechnologyOne on 3 July 2006. Clause 4.1 of his contract provided that his remuneration would be as set out in Schedule 1. The relevant terms of his contract with respect to both his base salary and incentives were accordingly contained in that Schedule. Those terms were as follows: 1082 I have concluded that there is no ambiguity in those provisions. On any natural and ordinary reading of that text, Mr Roohizadegan's employment contract expressly provides that he will be paid a bonus of 5.75% based on all PBT earned by TechnologyOne in respect of the Victorian region: understood as a geographical entity. On the face of that intractable language I am satisfied that Mr Roohizadegan's entitlement to be paid a bonus on any PBT generated by TechnologyOne in respect of sales to a company or organisation physically based in the Victorian region was not subject to any exceptions. I am satisfied that on a plain reading, there is no scope in that language that would permit TechnologyOne to unilaterally impose any carve out. 1083 In Mt Bruce Kiefel and Keane JJ stated they were proceeding on the basis that the issue of whether there needed to be patent ambiguity in the text of an agreement before recourse might be had to context was unnecessary to resolve (at [111]). Bell and Gageler JJ noted that intermediate courts of appeal were currently divided as to the correctness of that position having regard to the reasoning in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337 (Codelfa). 1084 Assuming, contrary to my conclusion that the text is relevantly unambiguous, that a constructional choice must be made, the process of ascertaining what a reasonable person in the position of the parties to a contract would have understood its terms to mean involves consideration not only of the text but also the surrounding circumstances known to all the parties, as well as the purpose and object of the transaction. As Lord Wilberforce explained in a frequently cited passage from his speech in Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996 (as was approved in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 at [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ): In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this, in turn, presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. 1085 On that premise, I would in any event reject the Respondents' submission that having regard to the context in which those provisions were agreed and their commercial purpose Mr Roohizadegan's contract of employment ought to be construed on the basis that a reasonable businessperson entering into that agreement would not have expected to be paid incentives on work done by consultants which he or she did not supervise and for which he or she was not financially responsible. 1086 The purpose of Mr Roohizadegan's job was not limited to direct selling. It was to manage and develop what was then a small part of TechnologyOne's market. That purpose, as contractually agreed, was identified in the "Job Description" in Schedule 2 of the Employment Agreement as follows: 1087 Mr Tracey and Mr Minson's closing submissions refer to the following evidence as relevant to the then surrounding circumstances: The surrounding circumstances relevant to the construction of the 2006 Agreement include the following: (a) during the Applicant's pre-employment interviews, the Applicant was informed that the First Respondent's business was broken up into business units based on geographical regions and that he would be incentivised on the basis of the performance of the Victorian region; (b) the Applicant was not informed that there were separate, non-regional, business units; (c) the Applicant was told during these pre-employment interviews that a sale would be allocated to the Victoria region if the organisation's head office was located in Victoria (d) at no stage in the pre-employment process was the Applicant informed that certain types of revenue from an organisation with a head office based in Victoria (including revenue associated with the sale of Student Management Services) would be the subject of an exclusion, and that such revenue would be put into a separate business unit Indeed, the Applicant was expressly informed that the contrary was the case; (e) it was mutually known, during the pre-employment interviews, that the higher education was a key market for the First Respondent, and yet still, the Applicant was not informed that revenue associated with that market would be excluded. (Footnotes omitted). 1088 It is also telling that Dr Spry did not challenge the truth of Mr Roohizadegan's evidence as adduced during cross-examination that before he had entered into that contract he had expressly asked whether there were any exclusions in respect of his entitlement to be paid a bonus on all profits earned by TechnologyOne in his region. Mr Roohizadegan's evidence was to the effect that he had asked that question because he had been anxious to ensure there was no potential for any misunderstanding. His evidence (which was relevantly unchallenged) was that Mr Di Marco had assured him that his entitlement to incentives on PBT earned in Victoria would not be subject to any exceptions (T262, lines 1-8). 1089 I am satisfied that, assuming it is appropriate to have regard to context, Mr Roohizadegan's 2006 contract of employment must still be construed as carrying the meaning that I have concluded it facially to convey: that is, that all revenue received by TechnologyOne in respect of an entity physically present in Victoria is to be included in the calculation of Mr Roohizadegan's entitlement to a bonus based on TechnologyOne's PBT in his region. 1090 The Employment Agreement was varied on 7 March 2007. That variation was to Schedule 1. Accordingly, the terms of his 2006 contract relating to his remuneration by way of salary and bonuses were substituted for by the following: 1091 It will thus be seen that in consequence of that variation, the language of "bonus" is replaced by that of "incentive percentage". Further, rather than the Schedule referring to Mr Roohizadegan being entitled to a bonus based on a percentage of "the region's PBT", the substituted Schedule 1 provides for five differential rates of incentives to be paid to him for each of five forthcoming financial years "based on Regional Profit Before Tax". 1092 In my opinion those variations are not open to be understood to have affected the fundamental nature of Mr Roohizadegan's entitlement to be paid, in addition to his base salary, a bonus (now termed an "incentive percentage") calculated on the basis of any PBT generated by TechnologyOne in respect of sales to any company or organisation physically based in the region. That is illuminated in Schedule 2 to the variation (which is unfortunately described, in that it varies Schedule 1 of the original Employment Agreement, rather than Schedule 2). That document identifies that such an incentive "will be based on Profit Before Tax for the specified region". That can only be a reference to the "specified region" for which Mr Roohizadegan was responsible: Victoria. 1093 Insofar as the purpose and object of a contract is relevant to its construction, it is important to observe that the High Court has expressly recognised that employment relationships are not purely contractual. They can be and are affected by statutory provisions and the incidents of a fiduciary relationship: Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693 (Concut) at 697-698 ([17]) per Gleeson CJ, Gaudron and Gummow JJ. In that case, an employment relationship had existed over a lengthy period. Initially, the employee had worked for a related company of the employer. However, in 1980 he began working for the employer in question on an oral contract. He later signed a service agreement with that employer in 1986. The 1986 agreement was the subject of the dispute. The High Court held that the service agreement was not properly characterised as a new and discrete contract that had replaced and terminated the earlier oral agreement. Gleeson CJ, Gaudron and Gummow JJ said (at 698 ([19]): 19. The relevant principles are well settled. In FCT v Sara Lee Household & Body Care (Aust) Pty Ltd [(2000) 172 ALR 346 at 350-1 [22]; 74 ALJR 1094 at 1098], Gleeson CJ, Gaudron, McHugh and Hayne JJ said: When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists. Their Honours went on to refer to the judgment of Taylor J in Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd [(1957) 98 CLR 93 at 143-4]. Taylor J had rejected submissions that (a) "it is impossible by a subsequent agreement, merely, to vary or modify an existing contract" and (b) "[an] agreement which purports to vary an existing contract operates … first of all to abrogate entirely the existing contractual relationship and, then, to reinstate the terms of the old contract as varied or modified by the new agreement" [cf Meek v Port of London Authority [1918] 2 Ch 96]. His Honour, to the contrary, accepted the propositions that (a) the earlier contract might be rescinded altogether, the determining factor being the intention of the parties disclosed by the later agreement; (b) partial rescission is a variation, not the destruction, of the contractual relationship between the parties; and (c) the earlier contract may be varied by way of (i) partial rescission with or without the substitution of new terms for those rescinded and (ii) the addition of new terms with or without any partial rescission at all [(1957) 98 CLR 93 at 144]. In Tallerman, Kitto J spoke in terms which involved acceptance of propositions (a) and (b) as identified above, adding that while "in strict logic" a variation may be a new contract, "the discharge of an old contract is a matter of intention"." (Emphasis added; footnotes omitted except where expressly set out). 1094 In my view, it is plain that on the facts of the present case in agreeing to the relevant variations neither party intended to abrogate entirely their pre-existing contractual relationship in such a way as would have permitted TechnologyOne unilaterally to exclude from its regional PBT any profit from sales achieved by it in Victoria: however facilitated. 1095 In his closing written submissions Dr Spry refers to Mr Chung as having sent an email on 7 July 2008 to all employees who received incentive payments, in consequence of TechnologyOne having decided to change its financial year in mid-2008. The email relevantly stated as follows: Incentives are paid on Profit Before Tax performance of the employee's specified region. They are paid on a monthly basis (with the exception of Student Management which is paid after 6 and 12 months) … 1096 To understand why Dr Spry highlights that correspondence, it is necessary to consider the second variation to Mr Roohizadegan's Employment Agreement. 1097 On 26 November 2009, Mr Di Marco wrote to Mr Roohizadegan advising that as the terms of his employment had now changed it would be necessary to (again) vary the terms of his Employment Agreement. The variation would take (retrospective) effect from 1 October 2009. It is uncontentious that Mr Roohizadegan countersigned that letter to indicate that he had accepted TechnologyOne's offer. I take it to be uncontentious that the requirement for a variation related to the changes in the company's financial year. I further understand it to be uncontentious that it was made clear to all employees remunerated in part by incentives (and was noted in Mr Di Marco's letter to Mr Roohizadegan of 26 November 2009) that their total remuneration review would subsequently be effected on October 15 each year, in consideration of end of financial year data. 1098 The 26 November 2009 variation to Mr Roohizadegan's position, status of employment, and entitlement to remuneration was as follows: 1099 Schedule 2 to the 26 November 2009 variation was also incorporated into Mr Roohizadegan's Employment Agreement. Mr Di Marco's letter inviting Mr Roohizadegan to accept the variation had informed him that the Schedule was "a current description of his role". Schedule 2 adds by way of detail the following: 1100 Dr Spry submits that having been advised by Mr Chung that incentives paid on "Student Management" would be paid 6 or 12 months in arrears rather than on a monthly basis as he would ordinarily have been entitled to receive them, it is "inconceivable" that Mr Roohizadegan would not have insisted on that being remedied prior to executing the variation he had agreed to in November 2009 if he were entitled to be paid incentives in respect of that product. 1101 Why that should be concluded is however unclear. Indeed, the submission is entirely implausible. Schedule 2 of the 26 November 2009 variation advised Mr Roohizadegan that while in most instances incentive payments would be paid monthly in advance, an exception "may be with payments to managers for high value products with a low level of sales where the monthly profit varies considerably". Mr Roohizadegan may well have been content with such an explanation in respect of SMS products. He was not cross-examined to suggest otherwise. 1102 In any event, Mr Roohizadegan's subsequently expressed concerns were not in relation to the timing when payments for SMS products sold in Victoria had been brought to account. They went to the more fundamental issue of whether his right to have his performance measured on the basis of PBT ought to have included those sales. 1103 In that more fundamental regard, there is nothing in Mr Chung's email of 7 July 2008 as would have alerted a reasonable person in Mr Roohizadegan's position that TechnologyOne was intending to exclude SMS sales from his entitlement to receive an incentive based on PBT performance in his region. 1104 Nor was any evidence adduced on behalf of the Respondents as would reveal the existence of any contextual circumstances that might objectively have required a reasonable person in Mr Roohizadegan's position to understand that a reference in the 26 November 2009 variation to his entitlement to be paid an incentive based on PBT "performance for Business Unit 03-Victoria" involved an exclusion in respect of SMS products. Such an exclusion would be one for which his Employment Agreement had not initially provided, given that it referred without exclusion to his entitlement to be paid a bonus based on "the region's PBT performance". Similarly it was not provided for by the first variation thereto, which had equally provided for him to be paid an incentive based on "regional Profit Before Tax" without qualification. Having regard to the principles outlined in Concut, I am satisfied that there is no basis for this Court to construe the text of the second variation as being to a different substantive effect. In referring to "Business Unit 03-Victoria", the text simply adopts updated corporate language that reflects the same substantive entitlement. 1105 Dr Spry submits that: 204. SMS was its own business unit, responsible for its own profit and loss, because it was a unique product requiring specialised knowledge which was lacking in the State based business units/regions. SMS consultants, until 2010, working in Victoria did not report to the Applicant. Rather, they reported to managers within the SMS business unit, and their salaries were costed not, for example, to the Applicant's region, but to the SMS business unit. (Footnotes omitted). 1106 All that may be accepted. However, acceptance of those facts does not displace Mr Roohizadegan's contractual right to be remunerated by way of incentives for the performance of his region without excluding those products when calculating its PBT. I am satisfied, putting aside the principle established in Concut, that even in that circumstance there is no relevant ambiguity in the terms of Mr Roohizadegan's varied Employment Agreement as would admit any exception to his entitlement to receive incentives based on his performance as PBT generated within "Business Unit 03-Victoria". There is no suggestion that that business region does not coincide with the geographical boundaries of the state of Victoria. 1107 Dr Spry points to TechnologyOne having published royalty rules for FY2010 and onwards that might have suggested a different reading. Self-evidently however, that could have become known to Mr Roohizadegan only after he had entered into the 26 November 2009 variation of his Employment Agreement. Any subsequent unilateral action by TechnologyOne, whether or not it became known to Mr Roohizadegan, cannot retrospectively alter the terms of the contract to which he and TechnologyOne had bound themselves. 1108 To the extent that such a submission is advanced, I also reject the proposition that a subsequent decision by TechnologyOne that its regions should be incentivised for sales of SMS products to a lesser degree than for other products alters the position. It is not suggested that Mr Roohizadegan entered into any accord and satisfaction as would bind him to that less generous outcome. There is no evidence to suggest his receipt of any partial amount was by an agreement supported by consideration. That not being so, his acceptance of those lesser amounts did not extinguish his entitlement to sue for the balance. 1109 I therefore reject any construction of Mr Roohizadegan's Employment Agreement as varied in 2009 as would permit TechnologyOne to exclude revenue due to sales of SMS products from inclusion in the calculation of his incentives. 1110 I am satisfied that Mr Tracey and Mr Minson are correct to submit that his Employment Agreement (as varied over time) must be understood as having at all times required TechnologyOne to include all revenue received from sales of that product in Victoria in the calculation of his incentives. 1111 Contrary to his contractual entitlements, such sales were initially not included and later were only partially taken into account. I am thus satisfied that Mr Roohizadegan establishes his contractual claim. 1112 As the parties are agreed in that circumstance as to the amount to be awarded ($1,590,000.00) I need not address that question further. I will make provision for the parties to make submissions in respect of any interest thereon that ought to be awarded.

Roohizadegan v TechnologyOne Limited

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