Third reason for termination: Mr Roohizadegan's poor relationships with his direct managers
155 The first document relied upon by the appellants at trial about Mr Roohizadegan's poor relationship with his direct managers was a chain of email correspondence dated between 15 April and 1 May 2014 concerning feedback from Victorian customers and Mr Roohizadegan's performance review. In emails to Mr Thompson and Ms Rebecca Gibbons, Mr Roohizadegan expresses his dissatisfaction with Mr Thompson's assessment of his performance, particularly with respect to customer relations. The final email in the chain, sent by Mr Roohizadegan to Mr Di Marco (with Mr Thompson and Ms Gibbons copied) at 11:55 am on 1 May 2014, describes the agreement ultimately reached between Mr Roohizadegan and Mr Thompson regarding the former's performance review. These emails were specifically referred to by counsel for the appellants in submissions, but the primary judge did not mention them.
156 The second document relied upon by the appellants about Mr Roohizadegan's poor relationship with his direct managers was an email sent by Mr Roohizadegan to Mr Thompson on 30 July 2014 at 11:53 pm, and Mr Thompson's response sent on 31 July 2014 at 7:03 am with the subject line "Vic Forecast today 29 07 2014". Mr Roohizadegan said that he would be "reviewing and adjusting [his] forecast for August and September so that [Mr Thompson and Mr Edward Chung] do not get disappointed". He said that he brought deals forward from July to June at his "own time and family time expense for the benefit of TechnologyOne", that "[t]his is something that is not fair on [him] anymore" and that his "18 to 20 working hour days is impacting [his] physical health". In his response, Mr Thompson offers assistance but states that the "forecast is already committed" and that he is "reliant on [Mr Roohizadegan and his team] to continue to deliver". This email was specifically referred to by Dr Spry during his cross-examination of Mr MacDonald, and the primary judge included an extract from Mr Thompson's evidence in chief which related to the email at [446].
157 The third document relied upon by the appellants at trial about Mr Roohizadegan's poor relationship with his direct managers was an email sent by Mr Thompson to Mr Di Marco on 1 August 2014 at 11:57 am, in which he said, among other things, that Mr Thompson had "provided appropriate coaching" to Mr Roohizadegan but "[u]nfortunately [Mr Roohizadegan] took it out on the source", and that Mr Roohizadegan "has NEVER had a $2.5m number imposed on him for Q4 and the forecast he committed for Q4 is HIS forecast and NOT [coerced] or forced by me". This email was specifically referred to by Dr Spry during his cross-examination of Mr Thompson, but the primary judge did not mention it.
158 The fourth document relied upon by the appellants at trial about Mr Roohizadegan's poor relationship with his direct managers was a chain of email correspondence commencing with an email sent by Mr Roohizadegan to Mr Richard Metcalfe the Regional Sales Manager for Victoria on 18 June 2015 at 9:28 pm. Mr Roohizadegan said that he "cannot run my region in parallel with a fifth column". This comment causes Mr Harwood to take offence - he describes the comment as "ridiculous" and said that he "will not tolerate [Mr Roohizadegan] insinuating" that he is "somehow involved in some plot to undermine [him]". The final email was sent by Mr Di Marco to Messrs Roohizadegan and Harwood on 19 June 2015 at 10:32 pm, in these terms: "Let's stop with the emails, and get in a room and sort it out, as this is escalating needlessly. Whatever mistakes have been made by whom, [let's] work it through and put it behind us. Mistakes happen".
159 These emails were referred to in the chronology and in the context of setting out Mr Roohizadegan's evidence at [111]-[112] and [155], as follows:
111 Mr Roohizadegan's evidence is that he sent an email to Mr Metcalfe, cc'ing Mr Di Marco, questioning why he and Mr Harwood had made the decision to terminate Mr Tsalkos on particular terms. He complained in his email that the decision to dismiss them had been taken without his involvement. He complained that he 'cannot run [his] region in parallel with a fifth column' (Ex R12, CB4274-4275).
112 It is uncontentious that Mr Di Marco told Mr Roohizadegan and Mr Harwood to 'sort it out, as this is escalating needlessly' and that 'mistakes happen' (Ex R12, CB4266).
…
155 Finally I note that in response to questions asked of him in cross-examination by Dr Spry to the effect that he was prepared to impute malicious intent inter-alia to Mr Harwood and Mr MacDonald without any basis in respect of their conduct towards him (describing them as a 'fifth column' working against him), Mr Roohizadegan's evidence was that shortly before he was dismissed Mr Phare (his original direct report) had told him he had made enemies of Mr Harwood and Mr MacDonald because Mr Di Marco had taken his side rather than theirs on some earlier occasions (T382, lines 8-15 and lines 34-40). Otherwise, but subject to the discussion below at [176]-[181], I identify nothing of significance in Mr Roohizadegan's responses in cross-examination that would add to the picture to which I have referred above.
160 They are also mentioned at [275], in the context of setting out Mr Harwood's evidence; at [306], in the context of considering Mr Harwood's evidence; at [553], [568] and [569], in the context of considering Mr Metcalfe's evidence; and at [867], in the context of considering expert medical evidence, but not otherwise, and in particular, not in any part of the Reasons that dealt with Mr Di Marco's evidence.
161 The fifth document relied upon by the appellants at trial about Mr Roohizadegan's poor relationship with his direct managers was an email sent by Mr Roohizadegan to Mr MacDonald, copying Mr Di Marco, on 13 April 2016 at 1:29 pm. The email recorded that Mr Roohizadegan had just had a "frank conversation" in which Mr MacDonald instructed him not to attend certain meetings with the Bass Coast Shire Council. Mr Roohizadegan stated that his non-attendance at the meetings "totally undermines [his] leadership for [his] region", and that he is "very sorry that [Mr MacDonald has] been put into this situation in [his] 3rd day in the job". He says that, out of respect for Mr MacDonald's position, he will accept the instruction and cancel his accommodation. He also says that he welcomes the opportunity to meet Mr MacDonald in person because he is "confident that upon our dialogue [Mr MacDonald] will gain the grasp where [he] is coming from". This document, to which the appellants referred in their closing submissions at trial, was referred to in the chronology and in an extract from Mr MacDonald's affidavit evidence at [335], but not otherwise.
162 The sixth document relied upon by the appellants at trial about Mr Roohizadegan's poor relationship with his direct managers was an email sent by Mr Roohizadegan to Mr Di Marco on 25 April 2016 at 11:49 pm, which forwarded earlier correspondence between Mr Roohizadegan and Mr MacDonald concerning a dinner with representatives of the University of Melbourne.
163 In that earlier correspondence, Mr MacDonald had said to Mr Roohizadegan "I would prefer in the future we follow my direction", and Mr Roohizadegan had said in response, among other things, that he felt he was "being bullied" by Ms Marie Philips and Mr Peter Sutching (see complaint 3 at [44]-[46] above). In the covering email to Mr Di Marco (see complaint 4 at [47]-[49] above), Mr Roohizadegan forwards that correspondence and says that he is "really confused" and that "decisions are being made for [his] region behind [his] back".
164 This document was referred to in the chronology and in the context of setting out Mr Roohizadegan's evidence at [129]-[130], as follows:
129 Mr Roohizadegan's evidence is that at 9.15pm on 25 April 2016 he then sent an email to Mr MacDonald querying why he had instructed him (in a phone conference in which Mr Harwood had also participated) not to attend a meeting with Melbourne University (Ex R21, CB5676). In his email Mr Roohizadegan referred to his being bullied by Mr Sutching and Ms Phillips. He asked Mr MacDonald, in view of what he asserted to be his exclusion from the running of the region, "I need to understand what my job is please."
130 Mr Roohizadegan's evidence is that later the same evening he had sent an email to Mr Di Marco to complain that Mr MacDonald was stopping him doing his job, decisions were being made behind his back and that he was being prevented from seeing customers and prospects (Ex R21, CB5674).
165 It is also referred to at [940] in the course of that part of the reasons that dealt with the identity of the decision-maker and when the decision was taken, as follows:
940 Finally, to set the scene as to what I am entitled to infer was the state of Mr Di Marco's mind at the time I note that I have rejected as entirely implausible his evidence that he had overlooked those parts of Ms Gibbons' email as refer to Mr Roohizadegan having complained to her about his having been bullied by Mr Sutching, and to his contemplating legal action. I note Mr Harwood's evidence is that Mr Sutching had been one of his direct reports before he became TechnologyOne's Operating Officer for Sales and Marketing in October 2014 (T1093, lines 9-13). I infer that Mr Di Marco would also have been aware of that fact. Further, he knew that just the day before Mr Roohizadegan had sent him an email complaining about decisions being made behind his back (which I infer would include those that had been made by Mr Harwood) and Mr MacDonald having instructed him not to attend a meeting with Melbourne University.
166 The same document is referred to at [975], where his Honour repeats his finding that, prior to the meeting with the executive team on 26 April 2016, Mr Di Marco was "well aware of … the complaints Mr Roohizadegan had conveyed to [him] by email … on 25 April 2016 about decisions being made behind his back".
167 Senior counsel for Mr Roohizadegan submitted that we should not accede to the appellants' submission that the learned primary judge did not have any, or any sufficient, regard to the documents described above, because "not a single one of the documents to which your Honours have been referred [including the documents referred to above] ... corroborates by recording in whole or in part a reason for the dismissal not including the alleged reasons".
168 But that, with great respect, is not the point, because "the essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable". See Doney v The Queen (1990) 171 CLR 207 at 211 (citation and internal quotations omitted). As Bell ACJ said in Nagamuthu v Shanmugarajah [2019] NSWCA 288 at [56]-[58] (Meagher JA and Barrett AJA agreeing):
56 In DPP v Kilbourne [1973] AC 729 at 750 (Kilbourne), Lord Reid said:
There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or less extent by the other statements or circumstances with which it fits in.
57 At one point in his argument, counsel for the Appellant submitted that evidence could not be corroborative unless that evidence would itself prove the fact in issue. That submission must be rejected. It borders on a contradiction in terms and is inconsistent with both Doney and the passage from Kilbourne cited above. As was said in Doney at 211:
It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice's evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused's involvement in the events as related by the accomplice.
58 It should also be remembered, as was also confirmed in Doney at 211 … that corroboration may be in the form of circumstantial evidence. Moreover, there may be a number of pieces of corroborative evidence (as in the present case) which, when pieced together, provide powerful confirmation, support or strength for the evidence needing to be corroborated. It is a mistake simply to analyse each piece of corroborating evidence individually and independently, as the Appellant tended to do in submissions.
169 In this case, it seems to us, that the evidence set out above at [132]-[166] was capable of corroborating each of Mr Di Marco's stated reasons for terminating Mr Roohizadegan's employment because, on its face, the evidence confirms, supports or strengthens Mr Di Marco's evidence of his reasons for terminating Mr Roohizadegan's employment, in the sense that it renders, or is capable of rendering, that evidence more probable.
170 In particular, that evidence constitutes objective and contemporaneous evidence of Mr Di Marco's awareness of an apparent progressive decline in licence fee revenue growth on Mr Roohizadegan's watch, and the fact that he took "no personal ownership" of the problem; a culture of crisis within Mr Roohizadegan's team that he had caused (including "a culture of fear, intimidation, bullying and passive aggressive behaviour", "staff now openly telling HR about systematic bullying" and a "revolving door" of staff); and, relatedly, that Mr Roohizadegan was unable to work with a succession of different managers (even to the extent of effectively describing Mr Harwood as an enemy sympathiser, when he said he belonged to "a fifth column"). In our respectful view, the learned primary judge was obliged to consider all of the evidence along those lines - that is, all the evidence set out at [132]-[166] above, and in particular to consider whether it was probative of the reasons given by Mr Di Marco for terminating Mr Roohizadegan's employment.
171 We should also deal specifically with the Carr email. Having recognised at [226] (see [151] above) that the Carr email was "of significance in these proceedings on the Respondents' case", and having recorded Mr Di Marco's evidence-in chief that he was "flabbergasted" by the content of it; that it was "one of the worst emails [he had] received in 33 years of being in business"; and that he had acted on it as a basis for terminating Mr Roohizadegan's employment, the learned primary judge, with great respect, was bound to deal with the objective fact of the Carr email and Mr Di Marco's evidence in respect of it. But other than a passing reference to Mr Di Marco's evidence about being "flabbergasted", made in the context of his Honour deciding by whom and when the decision to terminate was made (at [956]), Mr Di Marco's evidence about his understanding of the content of the "significant" Carr email was not weighed in the balance as part of his Honour's consideration of the question whether the respondents had displaced the statutory presumption. It is true that the Carr email is mentioned at [988], where the learned primary judge says that Ms Gibbons "had taken the liberty of exaggerating the import of what had been told to her", and that " … the subsequent evidence of Ms Carr and Mr Chung reveals that by the time of his acting to dismiss Mr Roohizadegan, Mr Di Marco no longer had any actual belief in the truth of what Ms Carr had twice advised him were mere allegations", but it is not readily apparent what "subsequent evidence" his Honour had in mind. That is all the more so in light of his Honour's earlier finding that "much of the evidence given by the … witnesses [other than Messrs Roohizadegan, Di Marco, Harwood and Stuart MacDonald] in this trial throws little or no light on the critical question of what was or were Mr Di Marco's reason or reasons for his decision to dismiss Mr Roohizadegan". See [73] above.
172 Senior Counsel for Mr Roohizadegan submitted in respect of [984]-[990] of his Honour's reasons (which appear at [99]-[100] above) as follows:
And your Honours, just to conclude, if I can do so briefly, in the succeeding passages, there are - there's a succession of - that is, from 984 through to 990. I won't dwell on them. They recapitulate matters that have already been the subject not only of findings and observations when witnesses were being considered but also with respect to the three reasons, etcetera. They are all matters which, as a matter of method, include considering relevant evidence of other witnesses, or so-called objective circumstances including documents, weighed in the usual way with respect to the way in which witnesses gave evidence and, very importantly, of course, inherent probabilities.
And all for the purpose, as you see at the beginning of 989, to explain his Honour's confidence in rejecting Mr Di Marco's credit. Thus, in 990, explaining scepticism with respect to the proposition that Mr Di Marco actually had any belief in the forthcoming train smash.
173 We do not agree. First, [984] and [985] of the Reasons concern only the question of the timing of the decision to terminate Mr Roohizadegan's employment.
174 Secondly, and more fundamentally, the evidence which is mentioned in the remaining five paragraphs to which counsel referred is a long way from the whole of the evidence which the learned primary judge was required to consider when addressing the critical question of whether the appellants had displaced the statutory presumption, including the large number of documents described at [132]-[166] above and relevant evidence-in-chief given by Mr Di Marco elsewhere referred to or noted in the Reasons. (That may be because his Honour had found that "Mr Di Marco's evidence as to his actual state of mind [could not] be relied on as the truth … at a relatively early point in this proceeding" (Reasons at [981]), and then sought towards the end of the Reasons to determine whether "critical aspects of what [he had] heard and read confirm[ed] the correctness of that finding").
175 And thirdly, it is not clear in many instances what evidence his Honour had in mind and what it was said to amount to. For example, his Honour refers at [987] to paragraph [69] of Mr Chung's affidavit which was "discussed earlier … in another context", without saying where, and goes on to say that "it reveals that on the very eve of Mr Roohizadegan's dismissal Mr Di Marco had expressed concern as to whether dismissing Mr Roohizadegan without any solid evidence and on a purely hearsay basis was the right thing to do" and that it was "a reflective observation by Mr Di Marco as to the reality of the situation: not, as Mr Chung suggests, a direction to him to investigate whether there was any such solid evidence". With great respect to the learned trial judge, how Mr Chung's evidence was found to have undermined Mr Di Marco's credibility remains unclear.
176 Counsel for Mr Roohizadegan also sought to bolster the learned primary judge's rejection of Mr Di Marco's reasons for terminating Mr Roohizadegan's employment by reference to the adverse credibility findings about him. But his Honour was required "to weigh [his] impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case", including contemporary materials and objectively established facts. See Goodrich Aerospace Pty Limited v Arsic (2006) 66 NSWLR 186 at 191 [27] (Ipp JA, Mason P and Tobias JA agreeing). In the absence of doing so, his Honour's bald conclusions that Mr Di Marco's evidence was at various points said to be "tortured and evasive", "disingenuous", "inherently implausible", "knowingly untrue" and so on, are of no assistance to the respondent's case on appeal.
177 It follows that we must uphold the appellants' two principal grounds of appeal in respect of the adverse action claim, namely that the learned primary judge:
(1) failed to provide adequate reasons for his conclusion that the appellants did not displace the statutory presumption under s 361 of the FW Act that the adverse action taken against Mr Roohizadegan (the termination of his employment) was for a prohibited reason; and
(2) did not answer the essential question - whether the appellants had established that the adverse action was not taken for a reason proscribed by the FW Act, or for reasons which included such a reason - by reference to all the evidence.
178 In those circumstances, it is not necessary to consider the further grounds of appeal (set out at [18] above).
179 Senior counsel for the appellants maintained in oral address that his clients' formal position was that they sought an order allowing the appeal and dismissing the adverse action claim, but it is fair to say that counsel recognised that such an outcome was an ambitious one. And so it is. We cannot possibly arrive at a final result without full and clear factual findings, including as to credit, by a trial court. It follows that there will be an order for a retrial of the adverse action claim.