Complainant

Respondent

Parties

Barry  Casserly

Channelsight

Representatives

MP Guinness BL instructed by Claire McDermott, Flynn O'Driscoll LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00068216-001

19/12/2024

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

CA-00068216-002

19/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00068234-002

19/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068234-003

19/12/2024

The Complainant commenced his employment as a Sales Manager with the Respondent on 4 January 2024 and was paid €102,000 per year. He stated that he was unfairly dismissed and that he was discriminated against by the Respondent on the grounds of his marital status as well as his sexual orientation. He also alleged that he was not paid the full amount of commission that he was owed.

In January 2024, the Complainant joined the Respondent to build and lead a new sales team. He immediately invested significant effort into the role, conducting over 40 interviews and hiring a team capable of supporting the company’s growth goals. From the beginning, he and his team faced substantial challenges, including a lack of resources, high workloads, and a toxic company culture. Two of his staff were dismissed, the marketing function was removed, and the customer success manager resigned. Despite these setbacks, the Complainant restructured, coached, and developed the team to maintain progress.

His leadership produced tangible results. In Q3, the team exceeded the revenue target of €374,000, delivering €430,000. By Q4, they had built a pipeline of €1.7 million and projected deals worth €500,000. These results were achieved in spite of the resource shortages and instability in senior leadership.

Throughout this period, the Complainant consistently received positive feedback. The CCO, HR, and team members praised his coaching, leadership, and work ethic. In meetings and reviews, he was told he was “doing the right thing,” “building strong processes,” and “up-levelling the team, including leadership itself.” He passed probation early with glowing reviews, and at no point were concerns raised about his performance or skill set. Two weeks before his dismissal, company-wide communications highlighted positive momentum and projected 10% growth, even under challenging conditions.

The Complainant also raised concerns with HR and the CCO regarding unmanageable workloads, lack of resources, and bullying behaviour. Despite raising these issues in good faith, no corrective action was taken. He also raised persistent issues with unpaid commissions, which became a weekly topic of discussion. Despite assurances, his compensation did not align with the targets achieved. For example, after exceeding his Q3 target, he received only €2,400 in commission, compared to the €12,866 he had been told he would receive under the compensation plan.

A critical turning point occurred after a meeting with the CEO in July, during which the Complainant disclosed his divorce and sexual orientation. Following this disclosure, the Respondent’s treatment of him changed markedly. One-on-one meetings with the CCO were cancelled without explanation, interactions became cold and passive-aggressive, and his team began asking whether his position was secure. This sudden shift contrasted with the consistently positive feedback he had received up to that point.

The Complainant stated that he was abruptly dismissed during a Zoom call with the CCO on 11 October 2024. HR was not present, and he was not given the opportunity to respond. The reason for the dismissal shifted between “skill set” and “coaching,” both inconsistent with the documented praise he had received from the same leadership team. His access to work tools was cut off within an hour, and he was required to return company property immediately.

The dismissal caused significant professional and personal disruption. It occurred two months before Christmas, during the Complainant’s divorce, and at a time of substantial financial commitments. Without access to his work laptop, he was unable to search for new roles or manage his finances effectively. He was also deprived of the opportunity to earn significant Q4 commission, in addition to the underpayment of Q3 commission, leaving him in financial difficulty.

The Complainant stated that there were also breaches of the Payment of Wages Act 1991, as commission payments were repeatedly miscalculated and remain outstanding. Despite clear targets achieved in Q3, the Complainant was underpaid, and he is still owed full and accurate payment for his work.

The Complainant commenced employment with the Respondent on 4 January 2024 as Sales Manager, reporting to the Chief Commercial Officer, with five initial direct reports on the Commercial Team. This number subsequently increased through additional hiring. The Respondent operates with a flat organisational structure and an open-plan seating arrangement.

At the outset, the Complainant demonstrated a strong work ethic and intensity, promoting a narrative to the Sales Team around hard work, consistency, and perseverance. Initially, this approach was inspiring and made a positive impression.

By March 2024, however, concerns emerged regarding the Complainant’s management style. One direct report specifically cited the Complainant’s management style as the reason for resigning. Although his ambition and effort were not in question, by April 2024 it was clear that the Complainant was failing to achieve agreed sales targets.

Around the same time, the Complainant began openly discussing his difficult financial position, which he attributed to the breakdown of his marriage and associated maintenance payments. It was evident that his financial strain was exacerbated by his inability to earn commission payments. The Chief Commercial Officer escalated these concerns to the CEO and CFO. In April, while not amending the Complainant’s contract, the Respondent acted in good faith and agreed to reduce the commission threshold from 75% team attainment to 50%. Despite this concession, the Complainant only triggered commission payments on two occasions.

In July 2024, while covering for the Chief Commercial Officer during annual leave, the CEO held two meetings with the Complainant on 2 and 4 July. These were intended as supportive sessions, encouraging him to request additional assistance if needed. The Complainant confirmed he found these meetings useful.

Nonetheless, the Complainant continued to underperform and failed to meet targets. In July, he informed the Chief Commercial Officer that he had declined a substantial offer from another company that had allegedly headhunted him. This comment followed news that a member of the Marketing Team was resigning to join the same company.

Concerns also arose in July regarding the Complainant’s behaviour. On one occasion, he requested to leave early in a highly agitated state, citing childcare issues. It was apparent that his marital breakdown was negatively affecting his mental health. While his performance was unsatisfactory, the Respondent agreed to continue providing support to help mitigate the risk of a mental health crisis.

Throughout his tenure, the Complainant held regular meetings with the Head of HR, initially to discuss recruitment and probation matters. Once recruitment concluded, it was agreed that these meetings would continue weekly. They primarily became sessions in which the Complainant voiced frustrations about his performance, remuneration, and his team’s results. His inability to earn commission remained his core source of discontent, linked directly to his financial difficulties. His targets and commission figures were reviewed and signed off by him monthly, leaving no dispute that he was consistently underperforming.

The Complainant also met with the Chief Commercial Officer almost daily. Additionally, performance issues and company-wide growth challenges were regularly highlighted at quarterly All-Hands meetings attended by all employees.

In September 2024, the Complainant was tasked with preparing a Board Report on Sales Performance. The report submitted was of unacceptably poor quality, containing significant inaccuracies and formatting errors, rendering it unusable. The Chief Commercial Officer had to prepare the report instead.

On 11 October 2024, the Chief Commercial Officer met with the Complainant to review his performance. During this meeting, the Complainant admitted that he had not been working “at all” for the previous six weeks, on the advice of his father, whom he described as his main adviser. When asked about his intentions, he stated, “the writing is on the wall for me here,” and confirmed he had already sought legal advice.

A decision was taken on foot of this that the Complainant’s employment would be terminated, and he was informed of this by the Chief Commercial Officer on 11 October 2024. The reason given was sustained non-performance and lack of the requisite skillset for the role.

A formal termination letter was issued to the Complainant, confirming his right to appeal. His employment formally ended with payment of salary, accrued holiday pay, pay in lieu of notice, and, as a gesture of goodwill, an additional three weeks’ salary up to 30 November 2024. Despite repeated requests, he failed to return his company laptop. On 16 October 2024, he informed the Head of HR that he intended to submit an appeal letter the following day, alleging discrepancies in his commission payments. No such letter was received.

CA-00068216-001:

The Law

Discrimination for the purposes of this Act.

Section 6 of the Act states as follows:

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified insubsection (2)(in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(b) that they are of different marital status (in this Act referred to as “the marital status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

Section 85A (1) of the Act provides: -

85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.

Findings:

It is clear from Section 85A (1) of the Act above that the burden of proof in this matter is on the Complainant. If the case meets the threshold set out above, then the burden of proof shifts and it is on the Respondent to rebut the presumption of discrimination.

This view is consistent with the decision of the Labour Court in Mitchell v. Southern Health Board [2001] ELR 201, where it was held thar:

“The first requirement […] is that the claimant must “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. 

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

Furthermore, in Melbury Developments Ltd. v. Valpeters [2010] 21 ELR 64, the Labour Court found that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The Complainant in this case alleged that he was subjected to discrimination based on his marital status, as he was separated from his wife and was in the process of getting a divorce. He further contended that he was discriminated against on the ground of his sexual orientation, namely that he is gay. While the Respondent’s witnesses acknowledged that they were aware of his marital status, they asserted that they were unaware of his sexual orientation. The Complainant disputed this, maintaining that he had informed both the CEO and the CCO of this.

In giving evidence of the alleged discrimination that he stated he was subjected to, the Complainant referred to numerous examples of where he believed he was treated less favourably than colleagues. He pointed to being denied opportunities to showcase his work in circumstances where other colleagues were permitted to do so, being treated differently at meetings and deal clinics, and not being consulted in relation the dismissal of an employee who he managed, which he asserted did not happen to other colleagues.

However, in examining these allegations, I noted that the Complainant was unable to identify an appropriate comparator—namely, that any colleague who he alleged was treated more favourably than him had a different marital status in respect of the situations described above. Furthermore, even if I were to accept his disputed evidence that he had disclosed his sexual orientation to the Respondent and that the Respondent’s witnesses were therefore aware of it, the Complainant was also unable to say if any colleague who he alleged was treated more favourably in the situations described above had a different sexual orientation.

While I noted that he highlighted having full transparency regarding his team’s commission statements each month until the end of June—and that this practice ceased in July after he revealed his sexual orientation—he contrasted this with a colleague of a different sexual orientation who had full transparency throughout. However, he accepted in cross-examination that the commission statements were in fact emailed to him in July, as they were every month, and that he had provided no feedback on them despite being invited to do so. Moreover, I am satisfied, based on the evidence presented, that the Complainant had issues around the payment of commissions prior to the revelation of his sexual orientation in July 2024 and that these issues were not materially different to those identified in July 2024.

Considering all of the foregoing, I find that the Complainant has not established a prima facie case of discrimination on either the ground of his marital status or his sexual orientation.

CA-00068216-002:

Section 2 of the Act states as follows:

(1) Except in so far as any provision of this Act otherwise provides This Act shall not apply in relation to any of the following persons:

(a) an employee… who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

As the Complainant had less than 1 years’ service in the employment of the Respondent, I have no jurisdiction to hear this complaint.

CA-00068234-003:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Although the Complainant claimed that he was owed unpaid commissions by the Respondent, he admitted in his own evidence that he had not met his targets. As his contract of employment clearly provided that commissions were payable only upon meeting those targets, I find that this complaint is not well founded.

CA-00068216-001:

As the Complainant has failed to establish a prima facie case of discrimination, I find that he was not discriminated against.

CA-00068216-002:

I have no jurisdiction to hear this complaint for the reason set out above.

CA-00068234-002:

This complaint was withdrawn.

CA-00068234-003:

I find that this complaint is not well founded for the reasons set out above.