A recent case has demonstrated the very high stakes facing organisations who dismiss an employee in circumstances where the employee has raised a complaint of bullying or other inappropriate workplace behaviour.
In Roohizadegan v TechnologyOne Limited (No 2) [2020] 1407 (2 October 2020), Justice Kerr of the Federal Court found that a former Victorian Regional Manager, Mr Benham Roohizadegan, was successful in making out a complaint of adverse action against his employer, TechnologyOne Ltd, a publicly listed company, and its CEO, Adrian Di Marco. He fined Mr Di Marco $7,000 and TechnologyOne $40,000 for their respective breaches of the Fair Work Act 2009 (Cth). Unfortunately for the company, this was just the starting point. He went on to award Mr Roohizadegan $5.2M in damages, which included:
- $2,825,000 for future economic loss;
- $756,410 in forgone shares;
- $1,590,000 in damages for breach of contract; and
- $10,000 in general damages.
This is one of the biggest payouts to a former employee in a general protections case in recent years.
What is adverse action?
To understand what went wrong for the company here, we need to first explore the concept of adverse action. Under the Fair Work Act 2009, employees enjoy what are called ‘general protections’; one of those protections is the right not to be penalised by an employer for exercising ‘workplace rights’. In this case, the Court found that Mr Roohizadegan had in fact exercised such a workplace right prior to being dismissed, by raising a complaint of bullying against other employees.
One critical aspect of the general protections provisions is a ‘reverse onus of proof’; that is, if an employee claims that their employer has engaged in ‘adverse action’ against them, it is up to the employer to prove that the employee’s raising of a workplace complaint was not the reason, or one of the reasons, for the dismissal.
Within the context, let’s explore the facts of the case.
Facts
Mr Roohizadegan worked with the company from July 2006 until his dismissal on 18 May 2016. During that time he was a key figure in the continued expansion and increased profitability of the company. A number of promotions meant Mr Roohizadegan’s income also increased greatly, reflecting the success of the company. He was a high flyer.
During the last year or two of his tenure, however, three competing factors converged. Firstly, a strained relationship between Mr Roohizadegan and his then direct managers, Mr Martin Harwood and Mr Stuart MacDonald, including the actions of those managers and others towards Mr Roohizadegan, which he alleged to be undermining, ostracising and threatening; secondly, Mr Roohizadegan’s making of bullying complaints in relation to these behaviours. Finally, some of the employees reporting to him raised certain complaints of their own regarding his management style.
The company’s response to both sets of complaints is critical to the decision in this case.
The complaints made against Mr Roohizadegan were raised in April 2016 by his direct reports (and others) in the Melbourne sales team. These complaints were taken down by Ms Rebecca Gibbons, an HR Business Partner, during a trip to Melbourne. The complaints made by Mr Roohizadegan were raised on seven different occasions, from early 2016 until his dismissal, both in person and in writing; on some occasions these were made to the CEO and on others to Ms Gibbons.
The critical sequence of events leading to his dismissal began on 24 April 2016, when Ms Gibbons reported back with news of the Melbourne complaints against Mr Roohizadegan in an email to her manager, Ms Carr, the Director of HR; Ms Carr then forwarded it to the CEO the following day. The CEO responded that the email was ‘the worst he had seen in 35 years in business’, as a result of which the CEO decided that Mr Roohizadegan ‘had to go’. Ms Gibbons was asked by the CEO to make a presentation to senior management in a meeting on 26 April 2016. During this meeting it was essentially decided that Mr McDonald would dismiss Mr Roohizadegan, however he was asked to wait until Mr Roohizadegan has completed a lucrative deal with La Trobe University first. A second senior executive meeting occured on 3 May, in which an alternative role was mooted by the CEO, but received no support. However, the evidence strongly suggests that from 26 April 2016, plans were on track to dismiss Mr Roohizadegan after the La Trobe deal was finalised. During the final negotiations with La Trobe, Mr Roohizadegan further complained of bullying and intimidating behaviour by Mr McDonald towards him. The Court found that Mr Roohizadegan was ‘strung along’ during this period, then lured into a meeting in Sydney with the CEO on false pretences, where he was is summarily dismissed.
The company’s argument as to its reasons for dismissal
The he company argued that Mr Roohizadegan was dismissed due to the following three reasons, which had nothing to do with Mr Roohizadegan’s own complaints:
- The complaints made by members of the Victorian team about his management style;
- Mr Roohizadegan’s alleged incapacity to work well with his three most recent direct managers; and
- Mr Roohizadegan’s alleged failure to grow the Victorian business in recent years by increasing licence fees.
Decision
Justice Kerr dismissed these arguments and found instead that, on the balance of probabilities, Mr Roohizadegan’s complaints about having been bullied were a substantial and operative reason for the CEO’s decision to terminate Mr Roohizadegan’s employment.
Reasons for the decision
In relation to argument 1, the Court found that Ms Gibbons’ actions contributed to the alleged complaints against Mr Roohizadegan being given undue weight in the mind of the CEO and others, and overshadowed his own bullying complaints. In particular, she failed in her duty as an HR professional to take down and summarise the complaints in an independent and objective way; she did not take written notes of the complaints, and her written summary exaggerated and in one case misrepresented certain aspects of the complaints.
But there were other failings that were attributable directly to the CEO. Critically, during the final executive meetings on 26 April and 3 May, Ms Gibbon’s manager, Ms Kathryn Carr, who was the HR Director, advised the CEO that the complaints were only allegations, and needed to be investigated before any disciplinary action was taken against Mr Roohizadegan. The CEO objected to this and it was decided by the CEO (in consultation with senior management) that Mr Roohizadegan had to go. None of the HR team took the matter further from this point.
In relation to argument 2, while Mr MacDonald claimed that he came to an assessment of Mr Roohizadegan based on personal dealings with him in the period leading up to the company’s decision to dismiss Mr Roohizadegan, Justice Kerr found that:
‘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.’
In relation to argument 3, Justice Kerr was extremely critical of the evidence of a number of witnesses put forward by the company. In short, his Honour found that the evidence put forward by the company attempted to paint a picture in which Mr Roohizadegan’s performance, and that of the Victorian team, became a subject of increasing concern, with allegedly slow growth in licence fees projected for the 2016 year.
In a long (350 pages) but extremely thorough judgement, his Honour cut down this alleged narrative without mercy, finding that a number of the witnesses had not been witnesses of the truth, that in fact both Mr Roohizadegan’s performance, and that of the Victorian team, remained high (and profitable), and that the allegations of low or falling performance were fabricated. He also found that the witnesses’ evidence that Mr Roohizadegan’s complaints were not at all relevant to the decision to terminate his employment was implausible.
Take home lessons
As a cautionary tale for employers, there are two aspects of this case that warrant attention.
Firstly, from the point of view of triaging workplace complaints, it is important that, subject to your policies, each and every complaint of workplace behaviour must be assessed and addressed in some way. Where the allegations are sufficiently serious that, if proven, they would be likely to breach your workplace behaviour policy of bullying or harassment, they should be investigated thoroughly and findings of fact made. Where possible disciplinary action may be taken, including terminating an employee for such alleged behaviours, this is doubly important.
But secondly, before embarking on any dismissal, the rights of each employee to be protected from adverse action must be front of mind. Employers ought to be aware of the reverse onus of proof which exists under section 361 of the Fair Work Act. This means that if it is alleged that an employer took an action for a particular reason or with a particular intent, it is presumed that the action was taken for that alleged reason or intent, unless the employer is able to prove otherwise. In this case, Mr Roohizadegan’s repeated attempts to raise complaints of bullying behaviours should have rung alarm bells for the CEO and senior management. The proper response in this case would have been to impartially investigate not only the allegations against Mr Roohizadegan but also the complaints brought by him. Only then, and subject to the findings, should the company have considered dismissing Mr Roohizadegan. If the findings cleared Mr Roohizadegan of any wrongdoing, any dismissal would normally then be on the grounds of non-performance; and in this case, there was no evidence of this.
Finally, for HR professionals, there is a separate but practical lessons: always take hand-written notes of important conversations, and report information accurately, objectively and without exaggeration.
