Court finds no whistleblower suspicion despite scathing remarks on exit conduct
A Supreme Court judge described an HR team's termination decision as "ill-considered," yet the employer still won the whistleblower case.
The Supreme Court of Victoria handed down its decision in Mishra v NBN Co Ltd on 5 May 2026, dismissing a claim brought by a former NBN employee who alleged his employment was threatened because he was, or might become, a whistleblower.
Abhishek Mishra had worked for NBN since August 2016, initially as a Copper Activation Manager in a role that was initially based in Melbourne before he took up a long-term assignment in Mumbai from November 2016. His contract included a tax equalisation arrangement, with Ernst & Young engaged to manage his tax affairs in both countries.
Things began unravelling in November 2020, when NBN told Mr Mishra it no longer needed him in India. By March 2021, his role was made redundant. He resisted immediate repatriation because his wife's Australian visa had lapsed and he had diabetes and was not yet vaccinated against COVID-19. NBN agreed to pay him a lump sum in lieu of repatriation, with the exit to be formalised through a deed.
Then the tax problems surfaced. By early June 2021, it became clear that questions had arisen not only about Australian tax obligations but also about a failure to pay tax to Indian authorities during Mr Mishra's Mumbai assignment. EY proposed that NBN pay the outstanding tax to Mr Mishra in Australia, who would then transfer it to India and remit it to authorities, a plan Mr Mishra called the "middleman" proposal. He raised concerns but, after speaking with his accountant, agreed in early August 2021 to proceed.
On 27 August 2021, Mr Mishra asked for the final tax amount to be specified before he signed the deed. That request prompted a shift inside NBN. HR Business Partner Troy Cardoso-Vigors emailed colleagues saying he was "leaning towards us needing to provide an ultimatum to [Mr Mishra]." Employee Relations Manager Ryan Murphy went further, recommending NBN pull the offer and bring him home on the next available flight, with his redundancy to apply the day he finished hotel quarantine. General Manager Employee Relations Andrei Moore authorised proceeding with termination without a deed.
On 3 September 2021, Mr Mishra was told in a Teams meeting with Mr Cardoso-Vigors and General Manager Connect Sriteja Bongu that his employment would end on 10 September 2021. He was observed by Mr Cardoso-Vigors to be quite anxious at the thought of termination of his employment without the tax issues being resolved. He consulted his accountant, Yogesh Gupta, who flagged the possibility he might be prosecuted by the ATO and could be potentially liable for a sum in excess of $600,000. Mr Mishra forwarded that advice to NBN on 6 September 2021. Two days later, on 8 September 2021, NBN confirmed it would not be terminating his employment as planned. His employment was eventually terminated on 3 November 2022, with NBN making a payment in relation to his Indian tax liabilities on 21 October 2021.
Mr Mishra claimed his chronic major depressive disorder with anxiety was caused by the September 2021 threat, and that the threat was driven by suspicion he was a whistleblower under the Corporations Act. Justice Watson disagreed. While accepting that NBN's non-payment of Indian tax over some years could fall within the broad meaning of an "improper state of affairs," he found none of those whose state of mind the court assessed, namely Mr Moore, Mr Murphy and Mr Cardoso-Vigors, believed or suspected Mr Mishra had made, may have made, proposed to make or could make a qualifying disclosure under Part 9.4AAA. The central legal question, the judge emphasised, was the state of mind of those who engaged in the detrimental conduct, not merely whether the underlying information could have supported a disclosure. Mr Mishra's emails read as personal concerns about his own tax position, not whistleblowing.
The judge accepted the September 2021 threat materially contributed to Mr Mishra's psychiatric condition, and observed that the decision to terminate without a deed "seems ill-considered." He also noted earlier in the judgment that the decision "might well have been harsh and ill-judged in the circumstances," but said that was not sufficient to establish an entitlement to compensation under the whistleblower provisions. Initial claims against EY were settled the day before trial, and other claims, including contractual claims and a loss of opportunity claim relating to property investment, were abandoned. The judge also indicated that even if liability had been found, the damages sought, including the maximum non-economic loss amount under the Wrongs Act 1958 (Vic) and lost earnings to age 67, would not have been justified on the evidence.
The case is a reminder that winning in court is not the same as managing an exit well. Internal HR emails became central evidence. Witness credibility mattered: Mr Murphy was found to have sought to minimise his role in the decision, and the judge preferred Mr Moore's account on who made the call. And the broad reach of whistleblower protections means employee concerns touching on compliance, even foreign tax compliance, deserve careful handling well before they reach a courtroom.
