Complainant

Respondent

Parties

Brian  Gartland

Dundalk Town Fc Limited Oriel Park

Representatives

Ger Connolly, Mason Hayes and Curran LLP

 John Temple B.L. (Respondent)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00066579-001

09/10/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

This complaint was lodged on 9 October 2024, and it was joined with other complaints under ADJ 54469.  The initial hearing took place on 18 October 2024 where the new owner of the respondent club indicated that he had just taken over the club recently and was not aware that there were any proceedings in train.  The respondent was on notice of complaints since 20 July 2024 when the WRC wrote to the respondent regarding various matters.  On 17 October 2024 the WRC copied the complainant’s submissions in relation to this matter and to the complaints of Unfair Dismissal, Terms of Employment Information and Payment of Wages under ADJ 52398 to the respondent.  The hearing was adjourned to allow the respondent to make written submissions. The hearing notification for the second day issued to the parties on 5 November 2024. No submissions were made by the respondent regarding the substantive issues to be heard by the WRC.  However, the respondent indicated in advance of the hearing that they would not be in attendance as the hearing was taking place outside the legal term.  As the WRC does not operate in accordance with the legal term, and since the respondent had received adequate notice of the hearing, the hearing proceeded as scheduled in the absence of the respondent.

The complainant undertook to give his evidence under affirmation.

The respondent submitted that there are four claims to these cases - the first is a payment of wages claim which is straightforward and he was owed €8076.92 in unpaid wages. The second is that he was never given his terms and conditions of employment in writing. The third is an unfair dismissal which is both substantially and procedurally unfair and gave rise to a loss of four weeks wages. The fourth complaint concerns penalisation for raising health and safety concerns for the players in his charge arising from the medical condition of the manager. This complaint falls squarely within the protected disclosures act full stuff he was initially threatened with dismissal, was then awaiting dismissal and ultimately was dismissed from his position.

The complainant submitted that he was employed as Head of Football Operations with the respondent from 1 January 2023. He was initially employed on a one-year contract. It was noted that the contract was poorly drafted and was not signed. However, the contract was reused for the following year when the complainant’s employment rolled over. In November/December 2023 the club was bought by new management and a new deal was struck with the complainant for a further two years employment.  Under a verbal agreement, his salary was due to increase for the first year with an additional increase for the second year. It was noted that there was also a fee schedule regarding transfer fees and prize money.

The complainant submitted that he never received the terms and conditions of his employment in writing. He did not receive the promised pay increase and accordingly is owed €8076.92, a shortfall in his wages for the period 1 January 2024 to 11 May 2024 when he was summarily dismissed.

The complainant submitted that there was a series of managers but after one manager was sacked the complainant became acting Co-manager of the team for a short period.  A new manager was appointed and shortly afterwards, the complainant made a protected disclosure regarding health condition of the manager that impacted upon player safety. The first protected disclosure was made on 19 April and the second was made on 22 April.

The complainant submitted that on the first day under the new manager he expressed serious concerns to the team's owner about the managers ability to undertake the responsibilities of the role. He noted that he had heard some rumours but that they were only that, however he told the club’s owner that but that he had witnessed one or two incidents with his own eyes.

The complainant submitted that he was summarily dismissed and that this amounts to an unfair dismissal. He submitted that his dismissal was announced in the paper within 15 minutes of him being told.  He submitted that he was aware of his duty to mitigate his loss and found another position within four weeks. It was confirmed that there is no ongoing loss.

The complainant acknowledged that redress under the Unfair Dismissals Act is, by and large, limited to loss of earnings but noted that the penalisation in this case was severe, there was reputationally impact on foot of the penalisation, and that his summary dismissal was a very public matter on a national level but also on a local level where he lived.

Complainant evidence:

The complainant stated that he was appointed as co-manager on a temporary basis in early April 2024. About two weeks later while a match was being played, he got a message to his phone indicating got a new manager had been appointed. This was leaked to the press about 15 minutes later while the team was still on the bus travelling home from the match. He was surprised as he had understood that the decision with some days away. He stated that the owner had gone and done it by himself, which was his right. The new manager was awarded an 18-month contract. He raised an issue with the owner regarding a health condition that the new manager had which may impact on the team. However, he did mention that he was not quite sure how accurate his information was but he suggested that the owner follow up. However, the complainant also followed up and clarified matters with some of his former teammates.

The complainant stated that the following Monday the new manager arrived on site. He noted that it became apparent fairly early on that there were some difficulties, and he called the owner again that afternoon to raise those issues with him. He stated that a number of issues were raised over the following two weeks and that he had to raise the matter with the owner as issues had arisen from a health and safety perspective regarding the safety of players.

The complainant stated that the owner said to leave matters with him until he got home (due to be a week later) but also stated that he didn't think that this particular club was the place for the complainant. The complainant stated that it was his understanding that the co-managers would step away from the management role when the new manager was appointed but that they couldn't. The new manager told them to cover the training schedules. The complainant stated that he started raising health and safety issues regarding players and injury prevention noting that players can't play three days a week straight after coming back from injury. He indicated that there had to be a safety plan in relation to players such as that. The complainant stated that team selection was left to him and to the other former co-manager but that during games he was overruled regarding changes to safeguard players.  This resulted in players being out for weeks and months. He stated that it was becoming a real risk to the players health.

The complainant stated that he brought his concerns to the then CEO who noted that he was well aware of all the circumstances. However, he was instructed not to take players off irrespective of health concerns. He was however asked to perhaps consider potential new managers. In a call on the 10 May 2024, the owner stated that if the CEO wants to replace the manager then that's his call.

The complainant recalled one occasion when the manager wanted to put a player in a position he hadn't played before and noted that the manager simply couldn't remember what position the player usually played. When it was brought to his attention the complainant was then told to “just do anything”.

The complainant stated that at the time there were a number of approaches to the club from potential sponsors who would put up funding for an alternative manager and the complainant was asked by the CEO to open discussions with an alternative candidate. He noted that there was also an issue around the time of potential sponsors seeking naming rights for the club and grounds.

The complainant stated that he got a call from the owner asking him who gave him permission to negotiate with a potential new manager. The complainant stated that he responded that he wasn't asked to negotiate but simply to see if a candidate was potentially open to discussions. He said it was put to him that he was undermining the coach/manager and he responded that the person who is the manager hadn't coached once at that stage. The complainant stated that the owner then fired him on that call, and he asked the owner for that in writing.  The complainant stated that statement was made to the press very shortly afterwards and he received an e-mail the next day (12 May) indicating that he was fired.

The complainant stated that a few days later he received a phone call from the owner apologising and asking him if he would come back but he sent a message declining the role as he did not believe it was a workable situation given that the papers had been notified, that the news was very public and that it was all over his hometown where he lived.

The complainant stated that he sought an alternative role almost immediately and within four weeks took up an alternative role. He stated that it wasn't his ideal role at the time but as he had family to support, he couldn't afford to be choosy as to where his future lay. He stated that he enjoyed the role and that it paid slightly more than his former position.

The respondent did not attend the hearing of these matters.

CA-00066579-001 Protected Disclosure

Section 5(3)(d) of the Act states that:

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

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

Section 6(1) of the Act state as follows:

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility,

to that other person.

In decision ADJ 52398, the complainant established that he was unfairly dismissed on the basis of having made a protected disclosure.  He succeeded in that case and was awarded redress in accordance with the Unfair Dismissals Act, 1977 as amended by the Protected Disclosures Act, 2014.

Section 12(1) & (2) of the Protected Disclosures Act, 2014 as amended state that

Other protection of employees from penalisation for having made protected disclosure

12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

(2) Subsection (1) does not apply to the dismissal of an employee to whom section 6(2)(ba) of the Unfair Dismissals Act 1977 applies.

As the complainant has succeeded in his complaint and Section 6(2)(ba) applied to that decision, Section 12(1) does not apply to the within complaint.

CA-00066579-001 Protected Disclosure

Having regard to the written and oral evidence presented in relation to this matter, my decision is that Section 12(1) of this Act does not apply to the dismissal of the complainant by virtue of the Unfair Dismissal decision under ADJ 52398 which concluded that Section 6(2)(ba) of the Unfair Dismissals Act, 1977 that the dismissal was on the basis that the complainant had made a protected disclosure.

Protected disclosure – dismissal on the basis of a protected disclosure – S12(1) does not apply