Complainant

Respondent

Parties

Emmet  Heeney

Kianda Technologies Limited

Complainant

Respondent

 Parties

Emmet Heeney

Kianda Technologies Limited

Representatives

  self

Kevin  Callan HR Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065882-001

10/09/2024

The Complainant sent an email to a senior director stating that major changes were required to meet service level agreement commitments. Soon after that email he was dismissed from his position. He stated that he is an experienced Customer Support Manager and what he was attempting to communicate was the need to set realistic expectations with customers.

The Director who made the decision to end the contract during the probationary period stated that it was poor performance that give rise to that decision. The Complainant disputes that explanation stating at no time was he put on a performance improvement programme.

The alleged protected disclosure is stated to be:

“Setting an SLA internally as a model is fine but expressing & communicating that to the clients when they see how the platform can be used, could and I believe will lead to disappointment to the customers if we have to stop the onboarding process and say that we can no longer go any further without additional payment or setting up a phase 2 implementation. Which in turn could lead to a bad customer relationship. I believe we may need to look at how the platform is being sold to the customer initially in order to set an expectation that is realistic of what we can accomplish. What the customer has to have ready before we begin the set-up of the account. Sitting down with the client in order to build a SOW out, have it agreed upon and signed off as that is the only work that will be done before we begin, would benefit us from a capacity point of view as well as having an good client relationship with them going forward. Obviously, this would change the onboarding approach that we had previously agreed upon but I believe it would be more than beneficial to us in the long run”

The Act defines a protected disclosure as:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

The worker in this case contends that he was reporting a breach of contract and that is provided for at section 5(3) (b) of the Act:

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

He stated that the Company was entering into Service Level Agreements that it could not keep and that was a breach of contract.

Section 5(4) states that:

4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory

And section 5(8) states that it will be:

8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The Complainant stated that he holds reasonably the belief that his employment was ended wholly and mainly from making a protected disclosure concerning likely breaches of contract obligations with key customers. At no time has anyone raised an issue with his performance and the coincidence of making the protected disclosure are so proximate it is the only reasonable explanation. The matters concern onboarding of new customers and how the service level agreements do not adequately express the terms concerning bespoke work. The Complainant was headhunted from another blue-chip company and has extensive experience in this area.

The Respondent respectfully submits that the claim before the Adjudicator is not one which shows that a protected disclosure occurred at any material time during the employment or at any time between the parties. As there could be no reasonable belief on the part of the person making such a disclosure that there was a disclosure pertaining to any of the areas set out in legislation as being whistleblowing, it follows and is submitted that there could not have been an unfair dismissal linked in any way to whistleblowing. In the circumstances the Respondent submits that the claim should not succeed on this basis.

During cross examination the Complainant accepted that at the time of the disclosure he was not aware that he was making a protected disclosure. That awareness came after he left the Company.

The Act states that the worker has:

 2) For the purposes of this Act information is “relevant information” if

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

The question arises if the Complainant was not aware that it was a protected disclosure at the time of the communication, did he reasonably believe that the relevant information tended to show one or more relevant wrongdoing?  On the face of the communication now being relied upon there are no facts referenced that tend to show any wrongdoing. The Communication has the appearance of day-to-day communication about process improvements or how to manage customer expectations. That does not equate to a wrongdoing.

However, even if that is so and there is no wrongdoing actually or likely was it a reasonable belief that there was?

The Complainant is a Customer Service Manager, and the plain reading of his email does not detail any wrongdoing, rather it is about managing customer expectations.

The product allows the client to adapt the features and reports to meet its unique business needs. An initial service level agreement is entered into that included some bespoke changes to a point. The bespoke features of the product significantly improves the client functionality and exceed what is expressed in the Service Level Agreement. That bespoke capability where the requirements exceed that expressed in the Service Level Agreement would incur additional costs and that leads to a discussion with the client about additional fees.

The Customer Services Manager, in this case is questioning that approach and favours a needs analysis prior to entering into a Service Level Agreement. That detailed needs analysis would lead to a detailed project specification so that customer expectations are clearly managed and would mean the approach that was previously agreed upon would fundamentally change.

That approach was not favoured by the Complainant’s director, as it could be inflexible and create cost implications for the Company.

After the Manager was let go during his probation period, he became aware of his rights under Unfair Dismissal legislation and believed what he was communicating was a wrongdoing. Arising from that communication he believed that he was fired.

During cross examination he stated that the email was just a precursor to a formal discussion that he intended to have with his manager and was to flag the potential breach of contract terms by the Company.

On the facts what he communicated is not a protected disclosure, it is not a wrongdoing as relied upon where it could be described as detailed at 5(3):

3) The following matters are relevant wrongdoings for the purposes of this Act—

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

No evidence was presented that the relevant information contained facts that tended to show the company was failing to comply with any legal obligation or was likely to fail to comply with any legal obligation. This was accepted at the hearing by the Complainant and the communication was just a first step and it was a diplomatic way of expressing what was a breach without saying it.

If the Complainant under cross examination accepted that the communication was not in its own right a protected disclosure but subject to further elaboration, it must also weaken the case that he had a reasonable belief that the information tended to show one or more wrongdoing.

This particularly so as the Act states at 5(5):

5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

Any reasonable person must view the communication not as a wrongdoing rather an opinion given by the Customer Service Manager about managing customer expectations, particularly when that is his job, as it does not involve an act or omission on the part of the employer, rather a suggestion about approaching customer onboarding in a different way so that the customers have a detailed and clear picture of what bespoke work will be done and the fee for that work.

 There are no facts in the communication that tend to show that the Company is failing to meet a contractual commitment or is likely to. There are no facts in this statement that show a relevant wrongdoing. There is an opinion about possible disappointment, that is speculative absent of any facts that tend to show a breach has occurred or is likely to occur:

“Setting an SLA internally as a model is fine but expressing & communicating that to the clients when they see how the platform can be used, could and I believe will lead to disappointment to the customers if we have to stop the onboarding process and say that we can no longer go any further without additional payment or setting”

The Complainant commenced his contract on the 8th of April 2024 and was ended on or about the 9th of September 2024.

In his complaint form he states:

On the 03/09 I had sent an email to my CTO and the CEO of the company outlining certain pitfalls and obstacles that we would encounter in relation to our processes which I wish to address so we could be proactive instead of reactive to when they came up.

 Some of the queries that were raised were from other members of the team as well which they have advised me of but as I was the Customer Success Manager I was the middle person running the communication between departments. So I would discuss this between sales and support members. I had a sales catch up call to meet the sales team at 3.20pm to discuss any queries or questions they wanted to raise and I was meeting the CTO directly after this meeting at 4pm and I would follow up with them as soon as I could with any updates which is part of my role as Customer Success Manager

 I had a meeting with the CTO on Thursday the 5/9 which communication was lacking from his side in relation to a clear onboarding plan which did not address any queries that were brought up in said email that was sent on the 3/9. He was addressing a niche point throughout the meeting which was causing lack of clarify on the subject. On Friday the 6/9 I updated the sales team to say that there was no further clarify on the subjects raised but even lack there of at the moment. The sales members set and email to the CTO looking for clarity on the subjects raised On Monday 9/9 I was asked Teams messaged at 11.25am to have a meeting at 1.30pm by the CTO (Osvaldo) Which I agreed to and asked if I needed to prepare anything or if there was an agenda A few moments later at roughly 11.35am I was directly called by Osvaldo and told that I was to be let go as I had caused "chaos" by communicating with the sales team that he had to have a meeting with them to calm them down in relation to clarity on the subject - a meeting that I was left out of even though I was included in the initial mail. Which he said I was told not too - However I was not told to not communicate with the sales team. It was part of my role. Osvaldo then said it was causing issues for him and I would be let go and my contract would be terminated and hung up the call. I then received my termination letter shortly after outlined that I was terminate

Section 6 of the Unfair Dismissal’s Act states:

.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(ba) the employee having made a protected disclosure,

On the evidence there was no protected disclosure made and any oral conversations that tend to show that occurred later are denied by the Respondent. I must conclude that the Respondent has met the burden of proof and established that no protected disclosure arises.

5(2) states that information is relevant if the Complainant has a reasonable belief. The Respondent has met the threshold on the balance of probabilities to negate this assumption that the Complainant had a reasonable belief that he was reporting a wrongdoing. This is so as the manager was acting within what he believed to be his role as a Customer Service Manager concerning the customer experience, he was not intending to communicate a wrongdoing as the evidence shows it was about managing customer expectations. It is opportunistic after the event and the attribution now being made that it was a contractual wrongdoing is entirely contrived.

(2) For the purposes of this Act information is “relevant information” if

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

To rely on the remedy in the Unfair Dismissal Act it must be shown that the matters complained of are in fact connected to a protected disclosure as the Complainant has less that 12 months service.

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment

The detriment in this case is alleged to be  dismissal arising from making a protected disclosure; however, the Respondent has rebutted that presumption bestowed by the Act that 8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. As that has been proved to the contrary by the Respondent the Complainant cannot rely on the protection of the Act as he has less than 12 months service.

On the facts the Complainant was dismissed during his probationary period and had less than 12 months service; he cannot rely upon the Act where the presumption of making a protected disclosure has been rebutted. The Complaint must fail, and I find that he was not unfairly dismissed. The complaint is not well founded.

The detriment in this case is dismissal arising from making an alledged protected disclosure; however, the Respondent has rebutted that presumption bestowed by the Act that 8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. As that has been proved to the contrary by the Respondent the Complainant cannot rely on the protection of the Act as he has less than 12 months service.

On the facts the Complainant was dismissed during his probationary period and had less than 12 months service; he cannot rely upon the Act where the presumption of making a protected disclosure has been rebutted. The complaint must fail, and I find that he was not unfairly dismissed. The complaint is not well founded.

Protected Disclosure