KEITH RUSSELL, the former Director of Domestic Rugby for the Scottish Rugby Union and father of current Scotland stand-off Finn, has won an unfair dismissal case against the governing body and has been awarded substantial compensation and damages. A final figure has not yet been established, but the whole process – including legal costs – is set to cost the SRU a six-figure sum.
Russell joined the SRU on 2nd February 2015 and was summarily dismissed on 19th May 2017. His case went before an employment tribunal back in February of this year, with Judge Joseph D’Inverno hearing evidence from SRU Chief Executive Mark Dodson and the organisation’s General Counsel Robert Howat, as well as from Russell. The judgement from that hearing, which was issued on Tuesday, has found that the dismissal was “both procedurally and substantively unfair”.
Also in the Keith Russell Affair:
House of Cards
The judgement records an incoherent and unconvincing explanation from Dodson and Howat as to why the decision was taken to dismiss Russell and relates a shocking failure to follow fair process and established procedures in carrying out that act. It ultimately presents the SRU as an organisation dominated by an erratic and autocratic leader, assisted and empowered by a clique of subservient senior staff, who all operate in an environment unencumbered by the need to be accountable to the Executive Board and/or the SRU Council.
In his summation, Judge D’Inverno concluded that –
Regarding whether the respondents [the SRU] honestly and reasonably held the belief that the claimant [Mr Russell] was not competent and whether there was a reasonable ground for that belief at the time of dismissal, the evidence of the respondent’s principal witnesses, the Chief Executive and Secretary (General Counsel) was largely of a general nature tending towards the expression of opinions.
On the evidence presented I was unable to find in fact that the respondent employer honestly and reasonably held belief that the claimant was not competent nor, and equally importantly, that there was a reasonable ground for that belief as at the time of dismissal.
As for Russell’s testimony, Judge D’Inverno stated –
I found the claimant’s evidence to be both credible and reliable in relation to the areas of focussed performance including his evidence to the effect that the detail set out by him in oral evidence before the Tribunal was all detail of which the respondents were aware and which he had brought to their attention at the meeting of 12th January 2017 and in the course of performance of his duties between that date and the date of his dismissal, both by way of proactive explanation and attempted response to the unspecified criticisms of his performance and hearsay criticisms of his leadership.
The claimant’s evidence given before the Tribunal and as confirmed by him to the respondents prior to and at the time of their deciding to dismiss him, constituted a substantial response, explanation and countering of misconceptions in relation to all five of the matters relied upon by the respondent. The respondent’s decision taker was unable to confirm in evidence that account had been taken by him of any of those responses, explanations and corrections of misconceptions.
A question of timing
During the course of the hearing, Dodson claimed that he started having doubts about Russell just six months after he took up the role but did not communicate any of those concerns to anyone else. The first piece of feedback on performance received by Russell from any senior figure at Murrayfield came after he had been in the role for 18 months, when a letter signed by Dodson revealed that he was being given a five percent bonus and one percent pay-rise.
“I would like to thank you for your contribution during the last year and look forward to this continuing in the year ahead,” the letter concluded.
However, according to Dodson’s testimony, a key catalyst in the deterioration in his relationship with Russell actually happened a month before this letter was sent and relates to the genesis of the controversial Agenda 3 programme, which aims to overhaul the way club rugby in Scotland is organised and managed.
During evidence, Judge D’Inverno heard that –
In July of 2016 the Chief Executive accompanied the international team on its summer tour. While away, he wished to begin to develop a presentation about the emerging concept of Agenda 3 which he intended to deliver to the Joint Board and Council meeting scheduled for September 2016. He asked the claimant [Mr Russell] to send him some input. The claimant sent to him his paper “Vibrant Rugby Communities” which reflected, amongst other things the output of his internal review and his concepts, strategy, objective and plan for delivery of the three key objectives for the development of domestic rugby in Scotland, these being increased participation, improved performance and development of sustainable clubs.
The Chief Executive was disappointed with the input provided by the claimant. He considered that the claimant had not done enough by way of input and that he, for his part, assisted by the Chief Operating Officer [Dominic McKay] who was accompanying him on the tour, had had, themselves, to do too much by way of preparation of the September slideshow presentation.
The Chief Executive did not share any aspect of that disappointment with the claimant.
Russell’s take on this particular issue was very different and is explained in greater detail here: Keith Russell: ‘The clubs as key stakeholders in the sport is a distraction they would prefer to avoid’
The first real indication Russell had that all was not well in his relationship with Dodson was at a meeting called by the Chief Executive on 12th January 2017 –
The invitation showed the attendees only as the CE [Chief Executive] and the claimant. The claimant was provided with no information as to the subject matter to be discussed or the purpose of the meeting. He was not invited to nor advised of the right to be accompanied by a colleague at the meeting. He was not advised that also at the meeting would be Mr R Howat in support of the Chief Executive.
Judge D’Inverno heard that Dodson had decided in advance of that meeting to dismiss Russell but was advised by Mr Howat that if that was to be done on the grounds of inadequate performance then the employee should be given an opportunity to improve his performance first.
So, Russell was asked instead if he wished to “move on”, with Dodson stating: “I can write you a cheque now”. Russell was ‘shocked at being confronted by such a proposition’. He stated that he was enjoying his job, expressed his optimism about the progress being made by his department, and insisted that he wanted to carry on in the role.
Judge D’Inverno noted –
The claimant received no Minute of the meeting and neither did he receive any written note of output from it confirming the respondent’s position, and or identifying matters of performance which they required him to improve, or of a timescale within which it was to be achieved, nor any key performance indicators by which improvement would be measured and assessed.
He [Russell] did not leave the meeting with the sense that his job was in jeopardy, he having responded to all points raised and having confirmed he was and wished to continue to be committed to his job. In the period following that meeting of 12th January 17, up to and including the date of his summary dismissal, nothing was said to the claimant which gave him to understand that his job was in jeopardy.
In the period that followed between a meeting of 12th January 17 and the claimant’s summary dismissal on 19th May 2017, none of the Executive Directors initiated a meeting with the claimant, offered support to him or showed any proactive interest in domestic rugby. It was the claimant who initiated such meetings as took place with Executive Directors when briefing them.
During the course of the second week of May 2017, Dodson decided to dismiss Russell and informed Howat of his intention, who in turn discussed the matter with Rosanne Holburn, HR Business Partner at the SRU. On Wednesday 17th May, Dodson’s Executive Assistant phoned Russell to set-up a meeting at 11am on Friday 19th May. Russell was not informed as to what was on the agenda. An electronic diary invite was subsequently issued.
On 18th May – the day before the meeting – the SRU Board was ‘informed internally’ that Russell had been dismissed. They, apparently, did not question the decision to get rid of a senior member of staff, or clarify what process had been followed to achieve that outcome.
Coincidentally, Mr Russell was liaising at that time with Holburn on a separate matter, and on the 18th May he emailed her –
My mobile is not working so not sure if you tried to call me today. I have a meeting at 11.30 on Friday otherwise clear if you have time to meet up.
The following morning, on the day of Russell’s dismissal, Holburn [a Human Resources professional] replied –
Re: Catch Up
My diary has filled up again lol so let’s catch up on Tuesday as planned. Promise I won’t postpone again
Later that morning, Holburn pushed the start time of the meeting back half an hour via the electronic diary invite. At this point, Russell tried to contact Holburn on her mobile and her landline to find out what the meeting was about, but his calls were not answered.
Russell attended the meeting alone at 11.30am on 19th May without any idea as to its purpose. Dodson, Howat and Holburn were all present.
Judge D’Inverno –
At the start of the meeting the respondent’s Chief Executive informed the claimant that the meeting was “not good news”. The respondent’s Chief Executive stated that there had not been sufficient progress on the Domestic Rugby Outcomes for which the claimant was responsible and that his team were not happy with his leadership. He informed the claimant that his employment was being terminated with immediate effect.
The claimant was shocked by his summary dismissal as he had been developing and was continuing to develop a business plan; designed to take domestic rugby forward towards the achievement of the goals of improving performance, increasing participation and establishing sustainable clubs, on which he had reported regularly to the respondent’s Board and which, in his perspective, had been and was continuing to be successful. In the course of the meeting the claimant asked for examples of his lack of leadership and examples of which outcomes it was considered he had not achieved, none were provided to him by the Chief Executive who explained that as he, the claimant, was a senior employee the respondent did not intend to go through a lengthy process to deal with the matter but that the respondent would be willing to provide a package to compensate the claimant for his employment being brought to an end in addition to his contractual three months’ notice. He told the claimant to find a lawyer to negotiate the terms of an exit. Criticisms expressed about him in the course of the meeting were vague to the extent that the claimant was unable to understand what aspects of his performance had, in the respondent’s view led to and justified the decision to dismiss.
The claimant was not afforded the right either to respond to specific concerns or address any perceived failings which the respondent had with his performance. The claimant was not afforded the right or opportunity to appeal against the decision to dismiss him.
The claimant was ordered to leave his employment immediately and his access to the respondent’s emails systems was stopped.
At the time of his dismissal the claimant was not provided with any written communication in relation to the fact of his dismissal, the reasons for it or in relation to arrangements for payments of sums due to him in contract and under statute.
More than a week later, Russell contacted Holburn to request some clarification as to the terms of his dismissal. A letter, signed by Howat, was eventually issued on 30th May – 11 days after his dismissal. It contained no specification of the underperformance which had resulted in the dismissal and made no attempt or arrange settlement to Russell of his contractual entitlement to pay in lieu of notice.
As it stands, some 13 months after his dismissal, Russell’s notice period and accrued holiday pay has still not been paid.
Meanwhile, in late March – a month after the end of this hearing but before the judgement had been issued, and two years before his previous contract was due to expire – Dodson was handed a contract extension until the summer of 2023 by the Board.
“It was important we continue the excellent momentum Scottish Rugby is generating at this time and as a Board we felt it was right for Mark to see through the exciting projects we are developing and provide valuable continuity,” said Scottish Rugby Chairman Colin Grassie at the time.
“As the scale of the business grows it is vital there is strong, proactive leadership to ensure all the respective departments and teams are functioning to their maximum and we progress at all levels of the game.
“I’d like to acknowledge the role of my predecessor Sir Moir Lockhead who recruited him and thank Mark for the excellent work he has undertaken so far. We are on an exciting journey and one that I’m sure our players and fans will enjoy.”
The SRU were asked to comment on this issue.
“Scottish Rugby acknowledges the outcome of the tribunal and, while there are some areas of the ruling it disagrees with, there will not be an appeal,” said a spokesman. “We will now be reviewing the judgement in detail and working with Mr Russell to conclude the process. Scottish Rugby stands by its decision to change the leadership of the domestic rugby department given the fundamental importance this area of the sport plays in all aspects of game in Scotland.”
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