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Election

1. I, the plaintiff, by filing this statement of claim, elect to have the

Employment Court hear a matter dealt with in a determination of the

Employment Relations Authority.

Determination

2. I attach a copy of the determination to which this election relates.

3. This election relates to the whole of that determination

Particulars of claim

The plaintiff says:

Parties 4. The plaintiff, Kabeer Khan, was employed by Oracle New Zealand

(“Oracle”) on 2 October 2007 as a Principal Consultant, in the department

Oracle Consulting Services (“OCS”). He signed an Individual Employment

Contract (“the Contract”) with Oracle in terms of the Employment

Relations Act 2000 (“the Act”).

5. When the plaintiff was made redundant on 9 February 2011, he was on an

annual gross salary of $120000. This was made up of a base salary of

$105000 and a bonus of $15000.

6. The defendant, Oracle New Zealand, is a duly incorporated company

having its registered office at Auckland.

7. The people directly involved in the actions against Kabeer Khan were:

(a) Elizabeth Mccusker, who was the direct Line Manager of Kabeer

Khan prior to Roger Hooper. She was the Practice Director in

OCS and also a Diversity Contact Officer in Oracle.

(b) Roger Hooper, who later became Kabeer Khan’s direct Line

Manager on 18 June 2010. His role was Practice Manager in

Oracle.

(c) Michael Wilde, who was the Legal Compliance Officer for

Oracle. He had done Kabeer Khan’s first complaint investigation

and later oversaw the second complaint to Human Resources.

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(d) Catherine Reynolds, who although part of Human Resources,

worked closely with Michael Wilde in Kabeer Khan’s complaint

investigation. And Marguerite (aka Mitzy) Kearney was the

Human Resources Manager for Oracle and worked closely with

Catherine Reynolds and Roger Hooper.

8. The people indirectly involved in the actions against Kabeer Khan were

Casey Poon who was OCS Senior Vice President, and Steve Simek who

was OCS Vice President for ANZ region.

Racial Harassment, Discrimination, Retaliation and Disadvantages Claim under exceptional circumstances

9. During October 2009 to September 2010, the plaintiff had made following

complaints pursuant to defendant’s policies and procedures:

(a) Complaint on Racial Harassment – this complaint was made in

October 2009 but was not investigated at all by the defendant

(as described in paragraphs 13 to 15 below).

(b) Retaliation, Discrimination and disadvantage complaints to

Oracle’s Compliance and Human Resources - the plaintiff was in

China when he made these complaints in April 2010 and

September 2010 respectively. These complaints were not fully

investigated, and the complaint investigation process was not

transparent (as described in paragraphs 40-41 to 47 below).

(c) On 12 January 2011 the plaintiff suggested defendant for going

to Employment Relations Authority (“Authority”) to resolve his

complaints. Twelve days later he was given the proposed

disestablishment notice, and subsequent to this he was made

redundant on 9 February 2011.

10. The plaintiff had reported these grievances with the defendant under the

90 days period in which they had occurred, and since then was following

defendant’s internal employee policies to have them investigated.

11. But the defendant did not fully investigate and concluded these

complaints, and the plaintiff was made redundant on 9 February 2011.

12. Because of these exceptional circumstances, the plaintiff had specified

these grievances as a part of his personal grievance to the Authority.

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13. The plaintiff has included the facts for those complaints in this statement

of claim.

The Diversity Issue

14. During year 2008 and 2009 a number of consultants had come to Oracle

from its India based offshore subsidiary. During this period Kabeer Khan

could hear his colleagues calling racist names and cracking racist jokes

about Indian-origin consultants. One such email with racist comments

was sent by James Taylor on 4 July 2008 to all Oracle employees.

15. Initially Elizabeth Mccusker had supported Kabeer Khan for working in

Project Management. But after reporting a diversity issue for racist

comments, she declined to give him opportunity to work in it. This is

supported by following:

(a) As a part of his yearly appraisal, Kabeer Khan had a meeting

with Elizabeth Mccusker on 7 October 2009, and had a

discussion to work in the area of Project Management. She had

then written to Peter Schoeman and offered her available OCS

team members at ‘no charge’ to work in Project Management.

(b) Subsequent to that, Peter Schoeman replied her on On 23

October 2009, and said that he could try to get Kabeer Khan in a

project manager support role in a Korea based project.

(c) On 28 October 2009, in line with Oracle’s ‘Workplace Diversity

Policy’, Kabeer Khan had sent an email to Elizabeth Mccusker

and reported a diversity issue that people of Indian origin were

called as ‘Indians’ in Oracle. She replied and thanked Kabeer

Khan for reporting it.

(d) On the same day, she had sent an email to Peter Schoeman

and questioned the time and expenses for Kabeer Khan’s role in

Korean Project. This was contrary to her previous

communication on 7 October when she offered her team at ‘no

charge’.

(e) On 29 October 2009, Elizabeth Mccusker advised Kabeer Khan

that he will not fit into Korean culture and hence unsuitable for

project management role in the Korean project.

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16. Elizabeth Mccusker did not make any further contact with Kabeer Khan

regarding the reported diversity issue.

Kabeer Khan’s personal situation

17. On 21 January 2010, Kabeer Khan had a meeting with Elizabeth

Mccusker in her office. He explained her that his family life was badly

affected because of his previous overseas work. For better work-life

balance, he had requested her to be based in New Zealand projects only.

18. Elizabeth Mccusker said that Mark Anderson (who was a Project

Manager in Oracle) was leaving Oracle. And she was into discussions

with Steve Simek for creating a new replacement position for Project

Manager. She said that this role will not involve much travel and an

internal announcement will be made to hire his replacement. She then

approved Kabeer Khan’s request to work from India form the month of

February 2010.

The China Project

19. On 5 February 2010, Roger Hooper sent an email to Kabeer Khan for a

China based project opportunity.

20. Kabeer Khan had no experience in the skills required for working on this

this project. In the subsequent communication between 5 March and 8

March 2010, he had explained these concerns to Roger Hooper. But

Roger Hooper had advised him to “customize” his CV to show these skills

and related experience.

Kabeer Khan working on Oracle’s internal initiatives

21. During the years of 2008 and 2009 there were a number of project

failures in Oracle, which included two large project failure in New

Zealand. Because of this reason, Oracle had received a large number of

complaints from customers in the Customer Care Survey (“Survey”) for

Australia and New Zealand (“ANZ”) regions.

22. Steve Simek, who was OCS Vice President for ANZ region, sponsored

internal Oracle initiatives and survey analysis to address customer

complaints.

23. Elizabeth Mccusker nominated Kabeer Khan to work on two of these

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initiatives. But she took over from him when it was confirmed from survey

analysis that the major root cause of customer dissatisfaction was project

mis-management. She then updated it such that it did not include large

negative customer feedback in project management.

24. Subsequent to this, she denied further opportunities in project

management to Kabeer Khan. This is supported by the following facts:

ANZ Project Quality

(a) On 9 November 2009, in an internal Practice Meeting, Elizabeth

Mccusker stated that there were a number of customer project

failures in the Australia and New Zealand (“ANZ”) region. And

due to which an internal initiative ‘ANZ Project Quality’ was

started by Steve Simek. She then nominated Kabeer Khan to

work on it. Over the the next two months from 26 November

2009 onwards, Kabeer Khan had worked on it.

ANZ Customer Care Satisfaction Survey

(b) On 25 January 2011, in an internal Oracle meeting, Elizabeth

Mccusker said that a large number of ANZ based customers had

shown dissatisfaction in the survey. And due to which Steve

Simek was looking for an ‘ANZ Consulting Coordinator’, to

analyze survey feedback for finding out root causes of customer

dissatisfaction. She then nominated Kabeer Khan to work as

‘ANZ Consulting Coordinator’ for survey analysis.

(c) On 11 February 2010, Kabeer Khan had sent the survey

analysis to Elizabeth Mccusker and Kavita Duggal (Oracle Asia

Pacific Finance Operations Director). The root causes of

customer dissatisfaction were found out to be in project

management and consultant’s expertise of Oracle products.

(d) On 16 March 2010, Kavita Duggal had written to Elizabeth

Mccusker and said that the survey feedback for ASEAN region

shows similar customer issues as was in ANZ region. Later on it

was confirmed by ASEAN survey analysis report, which was

sent by Senaka Tirangama on 18 March 2010.

(e) On the same day, in a teleconference call with Senaka

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Tirangama, Elizabeth Mccusker refused to accept that survey

feedback from customers of ANZ region had reported any issues

in project management. She then instructed Kabeer Khan to

write the same statement in an email to Senaka Tirangama.

(f) On 22 March 2010, Elizabeth Mccusker took over the survey

analysis from Kabeer Khan. She reanalyzed it and concluded

that out of 104 customer responses, there were only 20

customer responses that belonged to OCS and there were little

to do in terms of improvements.

(g) On the same day, Steve Simek had written to Kavita Duggal and

concluded that there were little to draw from the overall survey in

terms of improvements and the focus should be on the 20

specific customers that belonged to OCS.

Application to work as Project Manager and China Project

25. On 8 March 2010, Kabeer Khan returned back to New Zealand from

India, and had a meeting with Elizabeth Mccusker. He informed her about

his divorce, and his lack of experience in the skills required for working on

China project. In view of these reasons he requested of his preference to

remain in New Zealand.

26. But she said that he must go to China or else he could be made

redundant. She said that it will be good for him because China is

geographically closer to India.

27. On the same day, in an internal practice meeting, Elizabeth Mccusker

advertised the position of Project Manager. She said that it was created

for the replacement for Mark Anderson (who had left Oracle in January

2010).

28. On 9 March 2010, Kabeer Khan applied for this role by sending an email

to Elizabeth Mccusker. But contrary to the role advertised in practice

meeting, she replied that the advertised role was Programme Director for

Housing New Zealand project and not project manager.

29. On 10 March 2010, Elizabeth Mccusker referred Kabeer Khan to Human

Resources manager Hillary Palmer when he requested her to reconsider

his application in line with Oracle’s Equal Opportunity and Diversity

Policies.

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30. Subsequent to this, Kabeer Khan had a meeting with Elizabeth Mccusker

on 12 March 2010. The following were discussed:

(a) For his application for project manager, she said that she did not

have sufficient work for the existing project managers in Oracle,

and would need to utilize them first prior to adding more team

members in Project Management team. And to be able to work

in a project management role, she asked him to submit his

application for Oracle’s internal APAC Project Manager

Certification (“Oracle PM Certification”) for review and

authorization.

(b) For his request to be based in New Zealand, she said it did not

made any difference whether he lives in New Zealand or China

since he was already divorced and insisted him to go to China.

(c) For the skills required for working on China Project, she said that

he must pick up the skills “on the job”, and work with China

Project Manager about it.

Threat from Roger Hooper and acceptance of China Assignment

31. Shortly after the meeting, Roger Hooper called him on Kabeer Khan’s

mobile phone and threatened that he will get fired if he does not accept

the China assignment. For the skills required for China assignment, he

asked him to learn it “on the job”.

32. Because of the threat of getting fired, Kabeer Khan had accepted going to

China.

Full time work in China on Business Visa

33. Subsequent to that, on 12 March 2010, China project manager had

written to Roger Hooper and specifically asked for a ‘Work-Permit’ to be

processed for Kabeer Khan’s China assignment. But on the contrary,

Roger Hooper had asked Kabeer Khan to get a ‘business visa’.

34. On 2 April 2010 Kabeer Khan had written his concerns on business visa

to Elizabeth Mccusker, but she instead referred him to Human Resources

manager Hillary Palmer.

35. On 22 April 2010, Oracle representative Shaleena Mulchandani confirmed

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that Kabeer Khan could work on China on a Business Visa. On the

contrary, the terms and conditions of China business visa clearly states

that its holders cannot do full-time revenue generating work in China.

36. In the next ten months until January 2011, Kabeer Khan had worked full

time on a business visa in China project for software implementation, and

generated revenue for Oracle.

Suggestions for improvement

37. On 26 March 2010, Casey Poon had visited New Zealand. A number of

people from Oracle ANZ regional management were meeting him

(including Elizabeth Mccusker and Steve Simek), to have discussion on

“Project Review, Project Plan, Risks and Mitigations”.

38. Majority of Oracle customers in ANZ and ASEAN regions had given

survey feedback that the root cause of their dissatisfaction was project

mis-management but it was not accepted by Elizabeth Mccusker. This

was coupled with the fact that there were two large project failures in New

Zealand in year 2008, and they were executed in the management of

Elizabeth Mccusker.

39. Kabeer Khan thought that it was a logical step to bring Oracle project mis-

management issues to the notice of Casey Poon.

40. On 26 March 2010, Kabeer Khan had sent an email to Casey Poon and

requested he not disclose his identity. He highlighted customer reported

issues in project mis-management and reasons for attrition of Oracle

employees, and then suggested ways for improvement.

41. Subsequent to that, Kabeer Khan was subjected to retaliation by

Elizabeth Mccusker and Roger Hooper. She contacted Kabeer Khan at

times when he had no legal access in New Zealand. This is supported

and underscored by the facts given in the following paragraphs:

Response received after sending email to Casey Poon

(a) Subsequent to sending the email with suggestions, Casey Poon

disclosed Kabeer Khan’s suggestions and ideas for improvements

to immediate line manager Elizabeth Mccusker on 28 March

2010. It appears that Elizabeth Mccusker considered these

suggestions and ideas for improvements rather as complaints.

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(b) She first contacted Kabeer Khan on 30 March 2010. This was a

time when he was at Auckland Airport to catch a flight to China, to

start working on China assignment from 1 April 2010. She

inquired whether Kabeer Khan had sent an email Casey Poon

and disconnected the phone and left voicemails in strong voice.

(c) Kabeer Khan was scheduled to travel back to New Zealand after

two weeks on 17 April 2010. But instead of waiting for him to

come back and then talk, she continued to send him multiple

emails from 30 March to 7 April 2010, and escalated the matter to

Steve Simek and Hillary Palmer.

(d) In another email on 7 April 2010, Elizabeth Mccusker confirmed

that she was referring to the email that Casey Poon sent her for

review after he departed New Zealand. But she did not respond

when to Kabeer Khan asked her to forward that email.

(e) She made no more contact with Kabeer Khan even when he

arrived after two weeks in New Zealand on 17 April 2010, and

stayed in the country until 24 April 2010.

Application for the position of ‘Consulting Technical Manager’

(f) Elizabeth Mccusker brought back the issue of sending

suggestions to Casey Poon when Kabeer Khan applied for a role

of ‘Consulting Technical Manager’ on 3 May 2011.

(g) On the same day, Elizabeth Mccusker sent an email to Casey

Poon with her concern that she was unable to meet Kabeer

Khan (in relation to the email that Kabeer Khan had previously

sent to Casey Poon with suggestions). This email was also

copied to Steve Simek.

(h) On 4 May 2010, a new job was posted on Oracle’s iRecruitment

website, which had exactly the same title and description, which

Kabeer Khan applied. And the hiring manager for this job was

also Elizabeth Mccusker.

(i) Kabeer had written to Elizabeth Mccusker

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(j) and suggested for advertising new positions internally first (prior

to posting them on external sources). He supported it from the

fact that OCS had reported a high ‘revenue forecast margin’ of -

51% in that period.

(k) She replied on 6 May 2010, and said that she will give his

comments the attention it deserved. Subsequent to this, she

sent a meeting request to him for 10 May 2010, for a discussion

on his earlier email on suggestions to Casey Poon. This email

was also copied Hillary Palmer and Roger Hooper.

(l) Elizabeth Mccusker never responded to Kabeer Khan’s 3 May

2010 application for ‘Consulting Technical Manager’.

Second Application for the position of ‘Consulting Technical Manager’

(m) Since there was no response from Elizabeth Mccusker on his

application, he applied again on 14 June 2010 for the position of

‘Consulting Technical Manager’. But this application was

associated to the job which was created on 4 May 2010.

(n) Elizabeth Mccusker replied and said that the position was

already ‘verbally offered’ to someone else.

(o) On the same day, in the internal practice meeting she said that

all four newly advertised positions were under offer.

(p) On 15 June 2010, Kabeer Khan asked her the reason for not

considering his profile. She said she simply raises new

headcount request as part of the recruitment process, and the

balance of the process was managed by the human resources

and recruitment team.

Application for the position of ‘Procurement Lead’

(q) Based on the advertisement by Roger Hooper In 3 May 2010

internal Practice Meeting, Kabeer Khan applied for the role of

‘Procurement Lead’ for Housing New Zealand Project.

(r) On 4 May 2010, Roger Hooper replied and declined his

application with reason that he was looking for a very

experienced Procurement Lead rather than a Procurement

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Consultant. This was contrary to the fact that Kabeer Khan was

working in the same role in China Project and was asked to

learn on the job.

Hiring candidates for positions advertised

42. From October 2009 to July 2010, Kabeer Khan had applied a total of five

times for vacancies. This included twice for the vacancy of ‘Project

Manager’, twice for ‘Consulting Technical Manager’ and once for

‘Procurement Lead’. But Elizabeth Mccusker did not interview him and

declined his applications by giving various different reasons.

43. On the contrary, she hired external candidates, or re-hired candidates

who had previously left Oracle and gave opportunities to be employed to

other candidates within Oracle instead. This is supported from the

following facts:

(a) Kabeer Khan’s other Oracle colleague Ian Thompson was a

Consultant like him. But Elizabeth Mccusker had employed him

as Project Manager in New Zealand Police project from April to

July 2010. Subsequent to this, Ian Thompson was also

employed as a Project Manager in Housing New Zealand project

from June 2010 onwards.

(b) During this time Ian Thomson was not Oracle PM certified.

(c) External Contractors were appointed for the position of

Procurement Lead for Housing NZ project from June 2010

onwards.

Announcements in practice meetings only when candidates get hired

(d) During the months from April 2010 to June 2010, new positions

were created with titles such as ‘Consulting Technical Manager’

and ‘Consulting Project Manager’. But these were not advertised

in internal practice meetings.

(e) In the same period, Oracle Recruitment Team member David

Talamelli sent a total of five internal communication emails,

which listed all open positions in OCS for Australia and New

Zealand. But none of these emails listed New Zealand based

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positions of ‘Consulting Technical Manager’ and ‘Consulting

Project Manager’, which were the ones in which Kabeer Khan

wanted to progress his career.

(f) And the new positions were discussed only after a candidate

gets selected. It appears that a number of hired candidates were

already known to Elizabeth Mccusker. Specifically:

(i) On 14 June 2010 an internal practice meeting,

Elizabeth Mccusker announced that all the four new

positions listed on Oracle’s iRecruitment website were

under offer.

(ii) On 5 July 2010 internal practice meeting, Elizabeth

Mccusker announced that two positions were filled, and

there were candidates identified for rest of the two

positions. One of the positions was filled by Mark

Anderson as Project Manager, who had left Oracle in

January 2010 and was rehired.

(iii) On 5 August 2010 internal practice meeting, Elizabeth

Mccusker announced that Vaden House from Canada

had filed the position of Solution Architect. His online

profile on LinkedIn website shows that he worked in a

Canadian company called “Cedar”, which was the same

company Elizabeth Mccusker had worked previously.

Kabeer Khan Complaints

44. Kabeer Khan had first made a written complaint to Compliance Team on

19 April 2010, which was investigated by Michael Wilde. But when the

defendant failed to deal satisfactorily then he had complaint to to the

Human Resources team on 9 September 2010.

45. Both the complaints were dealt by Michael Wilde. This is supported by

the following facts:

Complaint to Oracle’s Legal and Compliance

(a) On 19 April 2010, Kabeer Khan had sent his written complaint to

Michael Wilde. The complaint was made for identity disclosure

by Casey Poon for the suggestions sent to him on 26 March

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2010, and subsequent retaliation by Elizabeth Mccusker.

(b) In the subsequent communication with Kabeer Khan, Michael

Wilde played down on his complaint and identified Casey Poon

as ‘Gary Poon’.

(c) On 4 May 2010, Michael Wilde had a telephonic discussion with

Kabeer Khan. He asked a number of questions in relation to the

complaint, and said that he will be speaking to Elizabeth

Mccusker and HR to investigate the allegations.

(d) On 10 May 2010, Kabeer Khan informed Michael Wilde about

the latest escalation from Elizabeth Mccusker and explained him

that the continued retaliation from her could affect his work

productivity and impact his health.

(e) On 26 June 2010, Michael Wilde sent an email to Kabeer Khan

and said that he had sufficient communication with Elizabeth

Mccusker and Hillary Palmer. He further stated that:

(i) Kabeer Khan had made similar suggestions to his

manager (that is Elizabeth Mccusker), prior to sending

email to Casey Poon’s on on 26 March 2010.

(ii) The complaint made by Kabeer Khan in regard to non-

compliance with Oracle’s policy appeared to be

misunderstanding and not violations. And he considers

Kabeer Khan’s complaint as concluded and there were

no violations of Oracle policy or improper treatment

meted out to Kabeer Khan.

(f) Unsatisfied from the outcome of Michael Wilde’s investigation,

Kabeer Khan had then written to Gustavo Llerena (Chief

Compliance Officer), and requested his complaint to be

reinvestigated and assigned to someone else. This was

pursuant to Oracle’s business ethics and compliance policy

which allows complainant to escalate it to the next level of Chief

Compliance Officer.

(g) After seven weeks, on 8 September 2010, Gustovo Llerena had

written to Kabeer Khan and asked him to go back to Michael

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Wilde to address all his concerns regarding the complaint.

Complaints to Oracle Human Resources

(h) Michael Wilde had already concluded his investigation, but

Kabeer Khan was facing continued retaliation and discrimination

from Elizabeth Mccusker and Roger Hooper. In view of these

reasons, on 8 September 2010, Kabeer Khan had made a

formal complaint to Oracle Human Resources against Elizabeth

Mccusker and Roger Hooper on the following grounds:

(i) Repeated denial of equal opportunity for growth in

Oracle with systematic planning.

(ii) Workplace racial discrimination and favoritism on par

with employees of European ethnicity.

(iii) Retaliation and bullying.

(iv) Isolating Kabeer Khan by advantage of being line

manager.

(i) On 9 September 2010, Michael Wilde to Kabeer Khan’s

complaint to Human Resources and had a telephone conference

with him. Subsequent to this, Michael Wilde informed him that

Catherine Reynolds was appointed as the complaint

investigation officer.

(j) On 17 September 2010, Kabeer Khan had explained Michael

Wilde that during the period of 15 June to 3 August 2010, he had

numerous email communications with Elizabeth Mccusker in

which he raised ‘equal opportunity’ concerns. But no action was

taken by Catherine Reynolds or Melissa Rulli even though they

were copied on these emails with Steve Simek.

(k) In view of this reason, he believed that the Human Resources

based in ANZ region will be susceptible to influence from senior

management, and requested Michael Wilde to arrange an

investigation officer outside the ANZ region.

(l) On 19 September 2010, Michael Wilde replied and said that he

had reviewed Kabeer Khan’s request with Alison Sibree and. He

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said Catherine Reynolds will assist Alex Papadopoulos in the

complaint investigation because she was a non-New Zealand

based Human Resources officer with a familiarity of New

Zealand jurisdiction, and implied that she was not directly

connected to Kabeer Khan. And Alex Papadopoulos will then

report the investigation findings to him.

Communication with Human Resources and Interview Transcript

(m) From 17 September to 21 September 2010 Kabeer Khan had

further communication with Catherine Reynolds, and he agreed

to have first interview with her on 24 September 2010.

(n) On 24 September 2010, Catherine Reynolds had taken the first

interview of Kabeer Khan through a telephone conference. This

conference was not recorded.

(i) She asked Kabeer Khan not to discuss his complaint

with anyone else except investigating officers. This

prevented Kabeer Khan to discuss the contents of his

complaint with a support person he wanted to bring.

(ii) She said that email evidences were not required for

investigation.

(iii) Before ending the conference, she said she had asked

all questions for investigating the first two heads of

complaint (that is complaint on denying equal

opportunity and racial discrimination), and then agreed

to schedule another follow-up telephone conference for

remaining two heads of complaint.

(o) On 29 September 2010, Catherine Reynolds sent the transcript

of the telephone conference to Kabeer Khan. He found that his

statements in the transcript were systematically changed such

that it appeared to place blame on him.

(p) On the same day, he had written to Catherine Reynolds and

brought it to her notice. On the contrary, she said anything else

not there in the transcript will be treated as additional.

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(q) Over the next two months Kabeer Khan had communicated with

Catherine Reynolds to get greater transparency and impartial

investigation process. He also informed her that about the high

work pressure from his full time work on China based project.

(r) On the contrary, she was simply pressing hard to quickly

complete the investigation process, without such transparency

or considering email evidences. It was on 20 October 2010 that

she agreed to record future teleconferences, and then on 26

November 2011, she agreed to consider the relevant email

evidence.

Complaint appeared to have been disclosed to people named in it

46. Based on the following facts, it appears that Kabeer Khan’s complaint

was disclosed to the people named in the complaint.

(a) Incidentally, the 26 November 2010 email from Catherine

Reynolds (in which she agreed to consider email evidences)

was just a day after Kabeer Khan had agreed to extend his

China assignment with Roger Hooper.

(b) But later on 7 December 2010, she denied having any role in his

extension in China assignment, and said she that his complaint

was not discussed with Roger Hooper.

(c) On 20 December 2010, Kabeer Khan returned to New Zealand

to renew his Permanent Resident visa. There was a delay

because of getting tax resident certificate from Inland Revenue

and closure of Immigration office for Christmas and New Year

holidays.

(d) Subsequent to this, on 23 December 2012, Roger Hooper had

written to Kabeer Khan to meet Mitzi Kearney on the next day,

and said that failure to do so will be in breach of Kabeer Khan’s

employment terms.

Request for aging laptop replacement, appraisal and training

(e) Both Elizabeth Mccusker and Roger Hooper declined Kabeer

Khan’s multiple requests to conduct half yearly appraisal. First

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time it was declined the month of December 2011 and Roger

Hooper said that it will be organized in January 2011. He

declined another meeting request for appraisal on 21 January

2011.

(f) On 6 January 2010, Roger Hooper declined Kabeer Khan’s

request for the replacement of his aging laptop and advised that

he should order it after his return to New Zealand in January

2011.

(g) Roger Hooper asked Kabeer Khan to cancel his pre-scheduled

training in Project Management in November 2010 and postpone

it to 31 January 2011. Later on, he asked him to postpone it

again to 7 March 2011.

Email to Human Resources on NZ Employment and Human Rights

(h) On 24 December 2010, Kabeer Khan sent an email to Mitzi

Kearney to clarify number of queries in relation to his

Employment Rights and Human Rights as per Employment Law.

(i) Subsequent to this, she organized a meeting with him on 6

January 2010, which was also attended by Roger Hooper.

(j) In response to a question whether he has a right to refuse an

assignment outside New Zealand. Mitzi Kearney said that he did

have the right to refuse an assignment outside New Zealand but

that if company did not find work then he could be made

‘redundant’ or he had the right to resign immediately if he

wished.

(k) This meeting was recorded by Kabeer Khan. Later on, Mitzi

Kearney sent the transcript of the meeting but it did not contain a

number of statements she had made during the discussion.

(l) Incidentally the transcript of Kabeer Khan’s previous

teleconference (of 24 September 2010) with Catherine Reynolds

was also changed. But this time it could be evident from the fact

that the meeting with Mitzy Kearney was recorded.

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Confirmation of China Assignment Completion

47. After the meeting on 6 January 2011, Roger Hooper had written to China

project manager to know when Kabeer Khan’s assignment will complete.

48. On the same day, the China project manager replied with and confirmed

that Kabeer Khan will be released from China assignment on 31 January

2011.

49. During this time, Kabeer Khan’s other colleague David Lin was also

working on another China based assignment. It was on 18 January 2011,

his China project manager confirmed his date of his release from China

assignment (which was approximately 2.5 weeks after Roger Hooper

received confirmation for Kabeer Khan’s China assignment completion).

Suggestion for going to Employment Relations Authority

50. Kabeer Khan’s complaints to Compliance and HR, along with the

suggestion of going to Employment Relations Authority had triggered the

circumstances and date on which he was given a proposed

disestablishment notice. This has finally resulted in him being made

redundant on 9 February 2011. This is supported and underscored by the

following facts:

(a) On 9 December 2010, Kabeer Khan had received an email from

Oracle Human Resources which welcomed Mitzi Kearney as the

Senior Human Resources Manager for New Zealand. On

clarification from Catherine Reynolds, she said that she has

been her Human Resources and nothing had changed about it.

(b) On the contrary, at the time of starting investigation into

complaint, Michael Wilde said that Catherine Reynolds was not

directly connected to Kabeer Khan.

(c) Catherine Reynolds becoming Kabeer Khan’s Human

Resources Manager was susceptible to influence by Elizabeth

Mccusker and Roger Hooper, which could have affected in

impartial investigation. This, along with the previous incident of

statements getting changed in the transcript, had concerned him

that Oracle’s complaint investigation process was one-sided.

(d) Since Michael Wilde was overseeing the entire investigation

20

process, Kabeer Khan had sent an email to him on 31

December 2010 and explained his concerns. He suggested him

the following ways to have an impartial and transparent

complaint investigation:

(i) Involving a third party (outside Oracle) to monitor the

complaint investigation process. And appointing a

complaint investigation officer which was not Kabeer

Khan’s direct Human Resources Manager. Or;

(ii) Mediation and further resolution through New Zealand

Employment Relations Authority (‘ERA’) under

Department of Labour. Or;

(iii) Directly talking to see if some form of one-time

agreement and settlement could have been reached.

(e) On 3 January 2011, Alex Papadopoulos sent an email to Kabeer

Khan and sought further clarification for his concerns on

Catherine Reynolds as complaint investigator. She stated that if

Kabeer Khan was free to raise a personal grievance with ERA,

and Oracle will follow the ERA process then.

(f) On 12 January 2011, Kabeer Khan replied and supported the

details with the evidence from the history of how the

investigation process was conducted. He said if someone from

outside Oracle could not be arranged to monitor the

investigation process then the complaint can be resolved by

going to ERA.

(g) On 14 January 2011, Michael Wilde had written to Kabeer Khan

and said that Kabeer Khan must provide further information

(regarding the complaint) to Catherine Reynolds by 21 January

2011, and after which he will assess whether other evidence,

interviews or investigation will be required.

(h) On 17 January 2011, Roger Hooper advised Kabeer Khan that

his China assignment will end by 31 January 2011, and asked

him to make travel arrangements to return to New Zealand.

(i) Subsequent to this, Kabeer Khan sought Michael Wilde

21

permission to extend the date for sending details of his

complaint by the first week of February 2011.

(j) On the same day, Michael Wilde replied and said that he was

not aware about Kabeer Khan’s China assignment completion

and permitted him to provide the details by the first week of

February 2011.

(k) On 21 January 2011, Roger Hooper sent a meeting invite to

Kabeer Khan for 25 January 2011. He said the reason of this

call was to discuss work opportunities in New Zealand from

February 2011.

(l) On 25 January 2011, Roger Hooper called Kabeer Khan and

conducted a brief telephonic discussion, which was also

attended by Catherine Reynolds and Mitzi Kearney. He stated

that there was no work for Kabeer Khan in New Zealand, and

gave a proposed notice of disestablishment. He then invited him

to provide ‘suggestions and alternatives’ by 02 January 2011 to

prevent the disestablishment.

(m) On 4 February 2011, Michael Wilde had written to Kabeer Khan

and sought more information of his complaint to Human

Resources. He said that Kabeer Khan’s complaint on retaliation

was still remaining under investigation.

Quick disestablishment and redundancy

Background of Customizing Employees CV for making quick business

51. In Oracle, projects generate revenue for consulting business, which is

how the consulting business is sustainable. The client communicates a

particular requirement, which is then communicated to the practice

manager.

52. The practice manager then sends a common email to employees of

consulting business for the client’s requirement. This is followed by a one-

on-one discussion for the consultant’s skills and experience. Depending

on the availability of consultants skills and the requirement, the practice

manager then advices consultants to customize their CV.

53. In Oracle OCS, it’s not uncommon for Practice Managers to advise

22

employees to “adjust” and “customize” their CV based on different project

requirements. The customized CV will then be sent to clients.

54. If an employee had low or no skills required for completing the project,

then he will be advised to quickly prepare from available online internal

documentation and self-trainings. And based on this preparation the

employee takes the client interviews, and start working on the project.

55. Once a consultant’s CV reaches client, then it is within their discretion as

to how long a particular consultant is to be engaged and/or how long the

project itself is to last.

56. This process was followed by all practice managers in Oracle. And

because of this, during year 2009 and 2010, there were at-least five times

when Kabeer Khan was asked to customize his CV. These were for

projects based in New Zealand and overseas locations, which required

the skills and experience he did not had.

57. The last one was on 5 February 2010, when Roger Hooper asked him to

customize his CV for the skills he did not had for working on China based

project. His customized CV was sent to the client, and while learning ‘on

the job’, he worked on this project for ten months.

58. And the result was that Kabeer Khan ended up in gaining advanced skills

in number of areas.

Consultation Process

59. The criteria to determine who all consultants can be selected for

disestablishment are based on the consultant’s skills, experience, his

project ‘utilization’ and future project work in the pipeline. The key factor

is consultant’s utilization on projects, which generates revenue for the

consulting business.

60. But Contrary to this, Kabeer Khan was still in the project when he was

given the proposed notice of disestablishment on 25 January 2011. He

was not provided the criteria on which the proposal was made.

61. At the time of Kabeer Khan’s redundancy, Roger Hooper employed

Kabeer Khan’s Oracle colleagues, four overseas Oracle employees and

four external contractors on the project work in which Kabeer Khan had

the skills. Kabeer Khan’s account of the relevant facts is:

23

(a) The ‘Consultation’ to Kabeer Khan was simply a notification, and

was started three days after he informed Michael Wilde of

returning back to New Zealand. Roger Hooper did not follow the

above mentioned process of discussing project requirements

with Kabeer Khan.

(b) On 25 January 2011, Roger Hooper called Kabeer Khan and

said that there was no work for Kabeer Khan in New Zealand,

and gave a proposed notice of disestablishment. He did not

provide any criteria based on which Kabeer Khan was selected

for a proposed disestablishment.

(c) He then invited him to provide ‘suggestions and alternatives’ by

02 January 2011 to prevent the disestablishment.

(d) This was just a day before Kabeer Khan’s departure from China

to New Zealand. And his request for extension of date from 2

January to 4 January 2011 was declined by Roger Hooper. This

had disadvantaged Kabeer Khan since he was coming back to

New Zealand after ten months, and had no knowledge of

ongoing projects.

(e) On 1 February 2011, Kabeer Khan requested Roger Hooper to

provide following information:

(i) Information on projects and sales bids from New

Zealand and the next twelve weeks resource

requirements for them.

(ii) Names and details of the work each of the external

contractors and Oracle employees were doing on New

Zealand projects.

(iii) On-going project information from ANZ and ASEAN

regions because Kabeer Khan was previously sent on

projects to these regions.

(f) Roger Hooper provided names of New Zealand based projects,

along with the names of external contractors and Oracle

employees engaged in them. But he did not provide details of

24

work that each of the external contractors were doing or any

information about the four overseas Oracle employees engaged

in these projects.

(g) Kabeer Khan was further disadvantaged since Roger Hooper

never told him about overseas Oracle employees at all. And

Kabeer Khan got to know about the overseas employees only as

a part of proceedings of his personal grievance in the Authority.

(h) Out of these, Kabeer Khan had skills that matched with four

external contractors and two overseas Oracle employees.

(i) Kabeer Khan was not given this option of “customizing” his CV.

As such he had the skills and experience and could have

replaced one of the external contractors or overseas employees

engaged by Oracle.

(j) Out of a total of thirteen suggestions provided by Kabeer Khan

on 2 February 2011 (to prevent disestablishment of his role),

Roger Hooper considered only four. Roger Hooper then sent a

consultation meeting invite for 9 February 2011.

(k) On 4 February 2011, Roger Hooper postponed the

prescheduled internal practice meeting from 7 February to 14

February 2011. Postponing this meeting had further

disadvantaged Kabeer Khan since he was hoping to hear about

the latest update on the ongoing projects, and wanted to talk to

his colleagues about work opportunities in New Zealand.

(l) On 9 February 2011, Roger Hooper had a meeting with Kabeer

Khan, which was also attended by Mitzi Kearney and Catherine

Reynolds. During this meeting:

(i) Roger Hooper started the meeting by saying that there

was restructuring done due business downturn and

because of which there was no work available for

Kabeer Khan in New Zealand. In the next sentence he

said that Kabeer Khan will be made redundant effective

immediately from 9 February 2011.

(ii) Roger Hooper did not provide the criteria which were

25

used to select Kabeer Khan among his other

colleagues David Lin and Ian Thompson or what skills

additional skills the external contractors had over him.

(iii) Roger Hooper stated that Kabeer Khan had ‘partial

skills’ required for working on New Zealand based

projects. And considering the requirements and work in

the pipeline, there were no work suitable for him.

(iv) Based upon the information given by other Oracle

colleague Landy Neethling, Kabeer Khan identified a

position based in an Australia based Oracle project. But

Roger Hooper refused to consider it and said that

Kabeer Khan should explore it himself.

(m) Contrary to the Roger Hooper’s explanation of business

downturn in the consultation meeting:

(i) Oracle’s financial statement for the financial year ended

on 31 March 2011 shows a revenue generation of over

$140 million, which is more than the revenue

generation in the financial year ending 31 March 2010.

This also includes $55 million dividend and $9 million

Management Fees paid during this period.

(ii) Kabeer Khan was also paid bonus in January 2011 for

an amount of $1691, which was two weeks before he

was given the proposed disestablishment notice on 25

January 2011.

(n) On the same day of 9 February 2011, Kabeer Khan was asked

to submit his access card and laptop, which removed his access

to the company even though there was a notice period of one

month.

Four weeks’ notice period after making redundant

(o) During the notice period, Kabeer Khan had identified a position

and applied for it. The hiring manager responded on 9 February

2011, and said that he will call Kabeer Khan over the weekend.

26

(p) Since there was no response, Kabeer Khan asked Mitzi Kearney

help on follow-up 2 March 2011. Subsequent to that, he was

declined for the position.

After completing four weeks’ notice period

(q) A number of positions were posted for OCS New Zealand on

Oracle’s iRecruitment website, after Kabeer Khan had

completed the four weeks’ notice period. These positions had

started appearing from 23 March 2011 onwards and had job

description similar to the position Kabeer Khan held.

FIRST CAUSE OF ACTION AGAINST THE DEFENDANT:

RETALIATION - BREACH of s4, s103(A) and s104(a) OF THE ACT

Kabeer Khan repeats paragraphs 21-43, 44-46, 50

62. Because of Elizabeth Mccusker actions Kabeer Khan was unjustifiably

disadvantaged in his employment, which was in breach of section 103A

of the Act.

63. Kabeer Khan complaints to Oracle’s Compliance and Human Resources

was pursuant to his Contract’s Clause 4.1.4 of following employee

policies and Clause 4.3 of complying with Oracle’s Code of Ethics and

Business Conduct policy.

64. The defendant not recording the 24 September 2010 investigation

teleconferences, and later systematically changing the plaintiff’s

statement in the transcript such that it appears to place blame on the

plaintiff on 29 September 2010. Similarly, the transcript for 6 January

2011 meeting with Mitzi Kearny was also changed. This was in

contravention of section 4(1)(b)(i) of the Act.

65. On 4 February 2011, Michael Wilde confirmed that Kabeer Khan’s

complaint on retaliation was still remaining under investigation. But after

four days he was made redundant.

66. Kabeer Khan asserts that his suggestions to Casey Poon and

subsequent complaints to Compliance and Michael Wilde was the death

knell for him with the company and resulted in a decision to make him

redundant on his return from China.

67. The plaintiff assets that the defendant has failed to deal with him in good

27

faith and that the defendant actions are in breach of the express and

implied duties on employers inherent in the conduct of employment

relationships. And accordingly the defendant’s behavior was in

contravention of section 4A of the Act.

Claim for relief

(a) That the plaintiff has a personal grievance for retaliatory action

from defendant for discrimination and unjustified disadvantage.

(b) An order directing the defendant to pay a sum of $10000

compensation to Kabeer Khan:

(i) Pursuant to section 17(1)(b) of Protected Disclosures

Act 2000 and in breach of section 103(1)(b) of the

Employment Relations Act 2000 for retaliatory actions.

(ii) Pursuant to section 123(1)(c)(i) of Employment

Relations Act 2000 for the humiliation, stress and

distress.

(c) Interest at 6% per annum.

(d) Penalties against defendant for breach of good faith.

(e) Further relief as the Court deems just.

(f) Costs, including incidentals and all legal costs

SECOND CAUSE OF ACTION AGAINST THE DEFENDANTS: UNFAIR

DISMISSAL AND UNJUSTIFIED DISADVANTAGE - BREACH OF

s103A AND s4A OF THE ACT

Kabeer Khan repeats paragraphs 46-61.

68. Subsequent to Kabeer Khan suggesting Michael Wilde on going to

Employment Relations Authority and his return date to New Zealand, he

was given proposed disestablishment notice on 25 January 2011. This

was just a day before his departure from China to New Zealand.

69. The following had caused unjustified disadvantage to Kabeer Khan, and

was in contravention of section 103(1)(a) of Act.

(a) His request for two days extension of giving suggestions was

declined by Roger Hooper. This had resulted in unreasonably

28

short timeframe of two days for Kabeer Khan to provide his

suggestions for preventing disestablishment.

(b) Roger Hooper did not share the details of the four overseas

employees working on New Zealand projects.

(c) Roger Hooper did he tell about the description of the work that

external contractors were on.

(d) Roger Hooper did not sent any common emails or discussed the

requirement on which he placed David Lin on another project,

even though his confirmation date of 18 January 2011 was later

than that of Kabeer Khan. He had the skills to do work on the

project which was assigned to David Lin.

70. Roger Hooper postponing the internal practice meeting from 7 February

to 14 February 2011.

71. Roger Hooper conducted first consultation meeting on 9 February 2011.

But he started this meeting by first declaring that Kabeer Khan was made

redundant. Kabeer Khan did not get the opportunity to comment on the

results of the investigation before the decision of redundancy was

implemented. This was in contravention of Section 4(1A)(c)(i)&(ii) of the

Act for employer’s duty of good faith.

72. The defendant was aware about plaintiff personal situation that he had to

come back to New Zealand to work out the custody of his children.

73. The unfair dismissal has affected the plaintiff reputation and he is unable

to secure an equivalent employment in New Zealand. He has already

applied for over 70 jobs, and has become significantly distressed by his

situation of financial hardship from unemployment.

74. The plaintiff assets that the defendant has failed to deal him in good faith,

and not acted as a fair and reasonable employer would have acted to

comply with its statutory good faith and consultation obligations. Kabeer

Khan’s dismissal by reason of redundancy was unjustified and was

predetermined. This was in contravention of section 4(1)(a) and 4(1A)(a)

of the Act in employer’s duty of dealing in good faith, and dealing in good

faith in wider scope of implied mutual obligations of trust and confidence

respectively.

29

Claim for relief

(a) That the plaintiff has a personal grievance for unjustified

dismissal on the basis that his redundancy was not genuine and

was procedurally unfair, and that his dismissal is not in line with

how a fair and reasonable employer would have acted in all

circumstances.

(b) An order pursuant to Section 125(2) of the Employment

Relations Act 2000, for reinstatement to the plaintiff’s former

position or to a position no less advantageous.

(c) An order pursuant to section 123(1)(b) of the Employment

Relations Act 2000, directing the defendant for reimbursement

of lost salary from 9 March 2011 to the date of Employment

court’s judgment. The lost salary to be calculated based on

plaintiff’s last drawn salary of $105000 per annum.

(d) An order pursuant to section 123(1)(c)(i) of Employment

Relations Act 2000, directing the defendant to pay a sum of

$15000 compensation to Kabeer Khan for the humiliation, stress

and distress arising from unfair redundancy.

(e) An order pursuant to section 103A of Employment Relations Act

2000, directing the defendant to pay a sum of $20000 to Kabeer

Khan for unjustified disadvantage in employment.

(f) Interest at 6% per annum.

(g) Penalties against defendant for breach of good faith in pursuant

to section 4A of Employment Relations Act 2000.

(h) Further relief as the Court deems just.

(i) Costs, including incidentals and all legal costs

31

This statement of claim has been filed by Kabeer Khan, plaintiff. The address for

service of the plaintiff is 101 Hutchinson Ave, New Lynn, Auckland 0600.

Documents for service may be left at that address or may be:

(a) Emailed to plaintiff at email address kabeer.khan@outlook.com