The managing director of a wealth management firm who claims he was dismissed from his €125,000-per-year job having been wrongly accused of gross misconduct is to be allowed return to work, by order of the High Court.

Rory Mason, who is also a 15 per cent shareholder in Dublin-based investment advisor GillenMarkets, says his employer wrongly accused him of fraud and theft, demanded a letter of resignation, and indicated that his alleged criminal conduct would be notified to the Central Bank and the gardaí. 

Pending the determination of the full row, Ms Justice Nuala Butler has agreed to impose temporary orders stopping disciplinary proceedings being brought against Mason over concerns that the reputational damage to him would be significant and “in the small and specialised sector in which he is employed, quite possibly irreparable”. She said his return to work is also to be facilitated by the firm.  

GillenMarkets was founded in 2005 by stockbrokers Rory Gillen, the majority shareholder, and Brian Delaney. Mason was employed as managing director and company secretary in January 2016, having previously worked in a range of roles in the financial services sector, principally in wealth management.

On signing up to the job, he acquired his 15 per cent stake in GillenMarkets for €235,000 held in a nominee company, Rorel Ltd. He claims he accepted a lower than normal salary from the company because it was envisaged that his principal reward would lie in the value of his shareholding going up if he were successful as managing director.

A shareholders agreement signed in December 2017 provided for Mason offering up his shares on leaving the company at some future date with the sale price varying depending on whether he departed on good or bad terms. A “good leaver” was defined as someone who moved on with the consent of the company or due to death, disability/ill health or redundancy or in cases of dismissal other than dismissal for reasons relating to fraud or gross misconduct.

Differences subsequently arose between the parties. Mason described relations at board level as ‘dysfunctional’ although this description was rejected by Dermot Browne, the chairman who maintains the directors were professional in their dealings with each other.  

Last March, he says he was informed by Browne that he would be moved from MD to chief operations officer as the directors and shareholder majority “felt that he was not the right person to lead the business going forward”. A chief executive officer was to be appointed to complete the switch around.

Mason says he has figures to show that the business grew during his tenure but he believes he has not been given sufficient credit for the performance of the team by Gillen and Delaney, which he puts down to his skillset and focus being on providing investment advice and wealth management services while their background is in stockbroking. He claims he was given unachievable growth targets thereby setting him up to fail.

Around the same time, Mason claims there were moves to dilute his shareholding, for the benefit of other staff members, without his consent. He says news got out putting him into an invidious position as it would generate ill feeling from other staff members if the scheme did not proceed because of his objections. 

The purported dismissal

Relations broke down when Browne called a meeting with Mason on Friday April 23 2021 expressing concerns about documents showing Mason had received a €14,000 bonus as part of an overall package of bonuses for staff worth €82,000. 

Mason claims the bonuses were approved by the board and the chair the previous December, and appeared in the company accounts.  He says he didn’t begin drawing down the bonus until March. The MD alleges that without any discussion about the payment, Browne immediately accused him of fraud and theft, demanded a letter of resignation and repayment of the €14,000 and said he would be notifying the Central Bank and the gardaí. He says he was also advised that his shareholding might be adversely affected as a “bad leaver”. 

Allegedly in a state of shock, Mason handed over his company fob and credit card after Browne allegedly summarily dismissed him.

Browne recalls key aspects of the meeting differently and states that documentation shows that the €14,000 payment was put through the payroll system on the day after it was explained to Mason that he was not seen as the right person to lead the business going forward. The chair is adamant that a bonus payment for Mason was never agreed by the board because the board was of the view that no bonus should be paid to any director.

While he agrees that he told Mason he wanted his letter of resignation he denies firing him on the spot and maintains that it was the MD who suggested he would repay the bonus.

Mason denies all allegations of fraud and theft, and says he would not have included details of the bonus on documents circulated to all board members unless he genuinely believed that the payment had been approved. 

After the meeting, he immediately sought legal advice from Simon McAleese solicitors who wrote to GillenMarkets alleging Browne’s actions at the meeting “amount to a purported summary dismissal of our client which our client does not accept”. The letter also warned the boutique investment firm not to defame their client by publishing any false allegations to third parties about his purported summary dismissal.

In reply, the firm’s lawyers Flynn O’Driscoll stated: 

“Your client is fully aware that the payment of €14,000 made to himself in March 2021 was improper, irregular, unauthorised and unlawful. However, based on the contents of your letter, your client is in utter denial and the matter must now therefore proceed to be dealt with in a formal manner.”

The letter continued that the board would (without Mason) consider the appointment of an external independent investigator to probe the allegations. 

It added: “In relation to the threats made in your letter regarding potential defamation, these are rejected. Our client is lawfully entitled to notify the relevant authorities of any such concerns they have about your client. This may include notification to the Central Bank Authorities, in accordance with best practice, that there is an investigation ongoing should the board resolve to proceed on Wednesday.”

Mason claimed the legal letter on behalf of the board showed it had predetermined, prior to any independent investigation, that the bonus payment was “improper, irregular, unauthorised and unlawful”. He said his exclusion from the upcoming meeting was a further breach of natural justice and he argued that the notification to the Central Bank of an ongoing investigation would be extremely damaging to him and his prospects of future employment in the financial sector, regardless of the outcome.

By the time the board agreed to an investigation into the €14,000 payment the following Wednesday (Browne recused himself from the decision), Mason had secured a temporary injunction, ex parte, restraining the directors from passing any resolutions about him or identifying him in relation to the underlying allegations. In light of the court order, the board took no further steps.

However on May 4, the board’s solicitors wrote seeking a variation of the order to allow for Mason’s suspension and the appointment of a “gold standard” external investigator, such as an employment lawyer, to look into the disciplinary allegations. GillenMarkets also wanted to notify the Central Bank about the move and “to provide a neutral narrative to any clients of the company in circumstances whereby they have entrusted the management of their personal funds [sic]”.

The next step

The two sides ended up in court to argue the future shape of the restraining orders between now and the case being determined following a full hearing. Mason wanted restraints on a disciplinary investigation to continue. In the meantime he wished to return to work on full pay. 

The defendants, GillenMarkets and Browne, argued the intervention of the court to stop disciplinary proceedings at this juncture was premature because the decision to suspend the MD at the board meeting of April 28 had never been implemented. Nor had he been dismissed, the firm maintained.

The board of GillenMarkets had a real and serious concern as to the legitimacy of the bonus payment, the court heard, and Mason’s contract of employment expressly provides for an investigation of alleged misconduct and for a “holding” suspension in the event of such a probe. 

To have a sufficiently strong case to warrant restraining any investigative or disciplinary action, Mason would have to show that the wealth management firm’s concerns in respect of the €14,000 payment were not bona fide, the firm maintained.

But working against GillenMarkets was the letter from its solicitors on April 23, five days before the board meeting, indicating the directors had already concluded that the bonus payment to Mason was “improper, irregular, unauthorised and unlawful”. Justice Butler states in her judgment: “It is difficult to construe this letter other than as meaning the defendant company was proposing to go through the formality of an investigation in order to support a decision which it had already reached. Clearly this raises a substantial issue both as to the legality and the purpose of what is now proposed.”

Mason’s side argued the proposed investigation, no matter how professional, was merely “window dressing” as the process had gone irremediably wrong. While not making any definitive findings on the case prior to the full trial, the judge concluded the MD had presented a strong case that there had been a breach of fair procedures and that the process had gone irredeemably wrong.

Justice Butler states:

“I am not satisfied, just because an employer has an entitlement to investigate a matter of legitimate concern to it, that serious concerns about the legality of the steps taken by the employer can be disregarded by the court solely on the basis that a “gold standard” investigation will take place in the future. The case is not simply whether procedural irregularities can be cured downstream in the course of an extended process, but whether the steps taken at the very outset of the process in order to establish the investigation which the employer wishes to pursue, have irredeemably tainted that process.”

The judge also rejected the company’s claims that damages would be an adequate remedy for Mason down the line if cleared by any investigative or disciplinary process. Noting the potential reputational damage that could arise from a disciplinary investigation, she determined that injunctive relief in Mason’s favour while the case remained live would cause the “least injustice”.