2

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. 3. I attach a copy of the determination to which this election relates. 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 Khans 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 Khans first complaint investigation and later oversaw the second complaint to Human Resources.

(d)

Catherine Reynolds, who although part of Human Resources, worked closely with Michael Wilde in Kabeer Khans 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 defendants 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 Oracles 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 defendants 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.

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 Oracles 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 Khans 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.

16.

Elizabeth Mccusker did not make any further contact with Kabeer Khan regarding the reported diversity issue. Kabeer Khans 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 Khans 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 Oracles 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

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 consultants 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

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 Oracles Equal Opportunity and Diversity Policies.

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 Oracles internal APAC Project Manager Certification (Oracle PM 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 Certification) for review and

31.

Shortly after the meeting, Roger Hooper called him on Kabeer Khans 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 Khans 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

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 mismanagement 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 Khans 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.

10

(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 Oracles 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

11

(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 Khans 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

12

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

13

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 Oracles 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 Oracles 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

14

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 Poons on on 26 March 2010. (ii) The complaint made by Kabeer Khan in regard to noncompliance with Oracles policy appeared to be misunderstanding and not violations. And he considers Kabeer Khans 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 Wildes 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 Oracles 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

15

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) (iv) Retaliation and bullying. Isolating Kabeer Khan by advantage of being line manager. (i) On 9 September 2010, Michael Wilde to Kabeer Khans 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 Khans request with Alison Sibree and. He

16

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.

17

(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 Khans 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 Khans employment terms. Request for aging laptop replacement, appraisal and training (e) Both Elizabeth Mccusker and Roger Hooper declined Kabeer Khans multiple requests to conduct half yearly appraisal. First

18

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 Khans 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

Khans

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.

19

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 Khans 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 Khans 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 Khans China assignment completion). Suggestion for going to Employment Relations Authority 50. Kabeer Khans 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 Khans 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 Oracles 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 Khans 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 Khans 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 Khans 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 clients requirement. This is followed by a oneon-one discussion for the consultants 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, its not uncommon for Practice Managers to advise

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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 consultants 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 consultants skills, experience, his project utilization and future project work in the pipeline. The key factor is consultants 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 Khans redundancy, Roger Hooper employed Kabeer Khans Oracle colleagues, four overseas Oracle employees and four external contractors on the project work in which Kabeer Khan had the skills. Kabeer Khans account of the relevant facts is:

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(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 Khans 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

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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 Hoopers explanation of business downturn in the consultation meeting: (i) Oracles 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.

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(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 Oracles 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 Oracles Compliance and Human Resources was pursuant to his Contracts Clause 4.1.4 of following employee policies and Clause 4.3 of complying with Oracles Code of Ethics and Business Conduct policy.

64.

The defendant not recording the 24 September 2010 investigation teleconferences, and later systematically changing the plaintiffs

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 Khans 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

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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 defendants 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) (d) (e) (f) Interest at 6% per annum. Penalties against defendant for breach of good faith. Further relief as the Court deems just. 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

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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 employers 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 Khans 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 employers duty of dealing in good faith, and dealing in good faith in wider scope of implied mutual obligations of trust and confidence respectively.

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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 plaintiffs 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 courts judgment. The lost salary to be calculated based on plaintiffs 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) (g) Interest at 6% per annum. Penalties against defendant for breach of good faith in pursuant to section 4A of Employment Relations Act 2000. (h) (i) Further relief as the Court deems just. Costs, including incidentals and all legal costs

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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