Lawyers acting for a senior sales executive in the gambling industry have threatened to pull out of a case at the Workplace Relations Commission claiming their client faces being denied a fair hearing.
Defence evidence was interrupted yesterday when the executive’s barrister objected to questions pertaining to the level of management control over his work being put to a chief executive officer, as he said these had not been raised with his client in cross-examination.
Conall McSorley, a 30-year veteran of the gambling industry who has accused software firm GBE Technologies Unlimited of unfair dismissal, gave instructions to his legal team that he would not go back into evidence so that the firm could “mend its hand”.
A central issue in the case is the question of whether Mr McSorley has standing as an employee to pursue the claim – with a solicitor for the company arguing the adjudicator had no jurisdiction and ought to dismiss the case on Wednesday afternoon.
The Irish Financial Services Centre-based company has 75 employees, but insists Mr McSorley was never one of them – and that his work as business development director was performed as a contractor on a day rate.
However, Mr McSorley’s lawyers argue their client’s involvement with the firm bore “all the hallmarks” of an employment relationship.
Under cross-examination at the hearing, Mr McSorley said he was paid approximately €150,000 a year in the role, plus expenses, having started working out of the firm’s IFSC offices in February 2018.
Mr McSorley said he thought he was coming in for a “sales update” when he was asked to attend a meeting on 28th October 2021, only to be informed by a company director, Brian O’Sullivan, that it wanted to “terminate” their relationship.
In later correspondence opened to the tribunal by the company, Mr McSorley said he wanted to “challenge this decision on a commercial basis” – citing payments to the firm of €500,000 up to that point from one client he had been involved with, who he said had been invoiced for a further €500,000, and a future contract worth €2.4 million.
He contrasted these figures with the €380,000 he had cost the firm up to that point – referring to himself as an “army of one” requiring “minimal support” to do his job.
Adrian Twomey, solicitor for the respondent firm said it was “crystal clear” from Mr McSorley’s evidence that from the point Mr McSorley set up a limited company, there had been “no payments made by GBE Technologies Unlimited to Conall McSorley” and that any earlier payments were “for the provision of services”.
“I say based on the complainant’s own evidence, adjudicator, he wasn’t an employee within the definition of that term for the purposes of the acts. With respect, the WRC does not have jurisdiction,” he said.
Jason Murray BL, for the complainant, argued that this was not enough to throw out the case, and after retiring briefly to consider the matter, adjudicating officer Penelope McGrath returned to the hearing room and said she was not in a position to make such a decision.
She invited the respondent to open its case.
Gbet’s chief executive officer Donal Plunkett then went into evidence, telling the tribunal it took Mr McSorley as a consultant because its core business was to do with developing and maintaining its software products, but that its team lacked expertise in sales and business development.
“Was he being treated like an employee?” Mr Twomey asked.
“No, he was always a contractor. Conall, he was always smartly turned out, suit, jacket, waistcoat, different from the rest of the team,” he said.
“Is that not standard?” Mr Twomey asked.
“No, it’s business casual but they try to push it as far as possible,” the witness said.
Questioned on Mr McSorley’s evidence that he had been directed to attend the offices for set hours of 9.30am to 5.30pm, Monday to Friday, Mr Plunkett denied giving any such direction.
Mr Murray objected to this line of questioning, stating it had not been put to his client during cross-examination that there would be a dispute in evidence over his working hours.
When it was proposed that his client go back into evidence on those points, Mr Murray said his instructions were that Mr McSorley would not be recalled.
He said that if the respondent was permitted to press on and open evidence which had not been heard, his view was that the hearing was being conducted “in conflict with the constitution”.
“I don’t say that lightly. This is the first time I’ve ever said it at the WRC, but this is my respectful submission,” Mr Murray said.
Mr Murray said he had “absolutely no difficulty” with the adjudicator using her inquisitorial powers to put questions of that nature to his client, however.
He said the respondent had “failed in [its] defence” and was now trying to “mend its hand”.
“If they are going to proceed on the basis that they can breach fair procedure the complainant is going to withdraw from the case,” he said.
Ms McGrath asked the parties to make submissions in writing on Mr Murray’s argument and adjourned the matter to a date in the new year, vacating a second day of hearing scheduled for this week.
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