Star state manager loses sacking case at retrial nearly ten years on

What happened

In July 2006 Technology One, a Brisbane software company now in the ASX 100, hired Behnam Roohizadegan as its Victorian regional manager. For years he was a star. Between 2006 and 2013 he grew the Victorian unit's licence fee revenue from about $1.3 million to $10.1 million, won five Chairman's Awards, and came to earn a package the CEO, Adrian Di Marco, put at about $1 million a year.

From 2014 the numbers turned. Victorian licence fees fell to $10,060,314 in 2014 and $9,001,777 in 2015, against a budget of $13 million for the 2016 year. New senior managers were placed above him. From January 2016 Behnam sent the CEO and others a long series of emails complaining that he was being marginalised, undermined and, later, bullied.

In April 2016 an HR business partner visited the Melbourne office. Her email of 24 April reported a real cultural issue, with staff in fear of their jobs. The CEO treated it as the final straw. At a meeting on 26 April he told his executives that Behnam had to go, but held off acting until an important deal with La Trobe University was safe.

In mid-May, after a heated clash with a senior manager, Behnam saw his doctor and was certified unfit for work until 17 May. On 16 May the CEO phoned and asked him to come to Brisbane for a five-hour meeting, telling him there would be a constructive discussion of his complaints. On 18 May 2016 the CEO opened that meeting by ending his employment and offering a non-negotiable exit package. Behnam refused it and left in significant distress.

The claim

Behnam sued Technology One and the CEO in the Federal Court under the general protections in Part 3-1 of the Fair Work Act 2009 (Cth). The main claim was under s 340, which stops an employer taking adverse action, such as dismissal, against an employee because they have exercised a workplace right. Making a complaint about your employment is a workplace right. He also relied on mental disability (s 351), temporary absence through illness (s 352) and misrepresentation (s 345), and claimed unpaid incentives.

He claimed approximately $54.7 million for economic loss, plus $550,000 in general damages and penalties. At the first trial, heard in late 2019, he was awarded approximately $5.2 million in penalties and compensation, but the Full Federal Court allowed the company's appeal and ordered a new trial. The retrial ran for 27 days of evidence across 2024 and 2025.

Why: the legal test

General protections claims carry a reverse onus. Under s 361, once the employee proves the workplace right and the dismissal, the court presumes the dismissal was for the reason alleged unless the employer proves otherwise. The question is the decision-maker's actual reasons, and the employer must show that the prohibited reason was not among them.

Justice McElwaine first fixed who decided and when. The CEO was the only person with power to dismiss Behnam, and he made the decision between 25 and 26 April 2016. Complaints sent after that date, and the illness Behnam disclosed on 15 May, could not have been reasons for a decision already made. Executives who influenced the CEO were examined too, and none was found to have acted for a prohibited reason.

The judge then accepted the CEO's reasons, which matched the documents: stagnating licence fees, a fractured relationship with his team, an inability to work with his senior managers, and the HR report. The CEO drew a line between the complaints, which he said he did not care about, and the behaviour around them, and the judge accepted it. By contrast, the judge relied heavily on contemporaneous documents and did not accept much of Behnam's own evidence.

The s 352 claim also failed. That section stops dismissal because of a temporary absence, not dismissal during one, and the decision came weeks before the sick leave.

The misleading meeting

The court found that the CEO did misrepresent the purpose of the Brisbane meeting, and knew it. But s 345 only prohibits false statements about a person's workplace rights. These statements were about getting Behnam to attend, not about his right to look after his own health and safety at work, so the claim failed. The judge also found that a lawful dismissal would have affected his health in the same way.

Even if he had won, the court found he would have been lawfully dismissed by 30 September 2016, cutting any damages sharply. The incentive claim failed too, because his contract did not cover revenue earned by a separate Brisbane unit.

What this means for you

A general protections claim asks why you were dismissed, not whether it was fair. Complaining does not protect you from dismissal for genuine performance reasons, and an employer that can prove its real reasons with documents can rebut the presumption.

Timing matters, and an employer cannot act because of an illness it does not know about. If you are raising concerns, keep copies of what you send. Records made at the time count for far more than memories years later.

For employers, written performance reasons and a decision-maker who can explain them carried the day, but misleading an employee about a meeting remains a risk. A general protections dismissal claim must be lodged with the Fair Work Commission within 21 days of the dismissal, so if you think you were sacked for an unlawful reason, consider getting advice early.