Roohizadegan v TechnologyOne Limited (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 02 October 2020
• Neutral Citation: [2020] FCA 1407
• Court: Federal Court
• Date: 02 October 2020

Federal Court of Australia

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

File number:	VID 996 of 2016
Judgment of:	KERR J
Date of judgment:	2 October 2020
Catchwords:	INDUSTRIAL LAW – general protections – adverse action contrary to Fair Work Act 2009 (Cth) s 340 – where Applicant’s employment terminated after he made seven complaints regarding bullying – operation of statutory presumption in s 361(1) – Respondents found not to have discharged onus of proving that complaints, being exercises of the Applicant’s workplace rights, not a reason for termination of his employment – adverse action established ; INDUSTRIAL LAW – remedies – adverse action – pecuniary penalties awarded and ordered to be paid to the Applicant pursuant to Fair Work Act 2009 (Cth) s 546 ; INDUSTRIAL LAW – remedies – adverse action – where psychiatric evidence established the Respondents’ conduct had caused a significant aggravation of the Applicant’s pre-existing depressive disorder, which had resulted in the Applicant losing capacity to work – where psychiatric evidence also established a poor prognosis for the Applicant ever again being able to work in roles for which he would otherwise be qualified – compensation awarded to Applicant pursuant to Fair Work Act 2009 (Cth) s 545 for economic loss and as compensation analogous to general damages ; CONTRACTS – where Applicant alleged breach of contract of employment by reason of non-payment of certain incentives due to him since 2009 – where contract had been varied on several occasions – consideration of Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693 – finding that neither textual nor contextual considerations supported Respondents’ preferred construction – breach of contract established – damages awarded
Legislation:	Fair Work Act 2009 (Cth) ss 340, 341, 351, 360, 361, 539, 542, 545, 546
Cases cited:	Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd [2020] FCA 893 Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337 Collison v Brighton Road Enterprises Pty Ltd (No 2) [2016] FCCA 1798 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Concut Pty Ltd v Worrell [2000] HCA 64; 176 ALR 693 Construction, Forestry, Maritime, Mining and Energy Union v Melbourne Precast Concrete Nominees Pty Ltd (No 3) [2020] FCA 1309 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987 Dafallah v Fair Work Commission [2014] FCA 328; 225 FCR 559 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; 218 CLR 471 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 Fair Work Ombudsman v Construction, Forestry, Maritime Mining and Energy Union [2019] FCAFC 69 Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605 Graham v Baker [1961] HCA 48; 106 CLR 340 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Matthews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; 229 FCR 221 Mt Bruce v Wright Prospecting [2015] HCA 37; 256 CLR 104 O’Brien v Dunsdon (1965) 39 ALJR 78 Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 Pascoe v Commissioner of Taxation (1956) 30 ALJ 402 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; 119 CLR 118 Purkess v Crittenden [1965] HCA 34; 114 CLR 164. RailPro Services Pty Ltd v Flavel [2015] FCA 504; 242 FCR 424 Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; 240 CLR 45 Shea v TRUenergy Pty Ltd (No 6) [2014] FCA 271 Stanley v Service to Youth Council Inc (No 3) [2014] FCA 716; 225 FCR 357 State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; 246 IR 441 Teubner v Humble [1963] HCA 11; 108 CLR 491 Thatcher v Charles [1961] HCA 5; 104 CLR 57 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 Watts v Rake [1960] HCA 58; 108 CLR 158 Willett v Victoria [2013] VSCA 76; 42 VR 571 Wright v Optus [2014] NSWSC 160 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485
Division:	Fair Work Division
Registry:	Victoria
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	1114
Date of last submissions:	4 November 2019
Date of hearing:	9-11, 14-18, 21-23, 30-31 October and 4 November 2019
Counsel for the Applicant:	Mr J Tracey and Mr R Minson
Solicitor for the Applicant:	Harmers Workplace Lawyers
Counsel for the Respondents:	Dr M Spry
Solicitor for the Respondents:	Cooper Grace Ward

ORDERS

		VID 996 of 2016
BETWEEN:	BENHAM ROOHIZADEGAN Applicant
AND:	TECHNOLOGYONE LIMITED First Respondent ; ADRIAN DI MARCO Second Respondent

order made by:	KERR J
DATE OF ORDER:	2 October 2020

THE COURT ORDERS THAT:

1. The Applicant’s application made pursuant to the Fair Work Act 2009 (Cth) (the Fair Work Act) be upheld.

2. Pursuant to s 546 of the Fair Work Act:

1. the First Respondent pay a penalty of $40,000.00; and

2. the Second Respondent pay a penalty of $7,000.00.

3. Pursuant to s 546(3)(c) of the Fair Work Act, the penalties imposed pursuant to Order 2 be paid to the Applicant.

4. Subject to Order 9 in respect of pre-judgment interest to be awarded thereon, pursuant to s 545 of the Fair Work Act the First Respondent pay to the Applicant the sum of $756,410.00 as compensation in respect of his forgone share options.

5. Pursuant to s 545 of the Fair Work Act, the First Respondent pay to the Applicant the sum of $2,825,000.00 as compensation for his future economic loss.

6. Pursuant to s 545 of the Fair Work Act, the First Respondent pay to the Applicant the sum of $10,000.00 as compensation analogous to general damages.

7. In respect of the Applicant’s associated claim in contract against the First Respondent there be judgment for the Applicant.

8. Subject to Order 9 in respect of pre-judgment interest to be awarded thereon, the Applicant be awarded damages for breach of contract in the sum of $1,590,000.00.

9. The parties are to confer with the aim of providing the Court with agreed proposed orders as to what, if any, amounts should be awarded...