Esat says former executive was poor performer

Esat Telecom was entitled to question the suitability of Mr Dan Rogers, a leading US telecommunications executive, for a post within the company because of his "poor performance" in his position which was brought to his attention on a number of occasions, the High Court heard yesterday.

Esat claimed Mr Rogers had failed to perform the services related to the roles undertaken by him, had adopted a consultancy style of management rather than a hands-on approach and rarely achieved agreed targets.

The claims were set out in legal documents read to the court on the second day of an action by Mr Rogers (47), formerly of Cedar Rapids, Iowa, but now living at Clearwater Cove, Dun Laoghaire, Co Dublin. He is seeking multi-million pounds damages for alleged wrongful dismissal and breach of contract.

The proceedings are against Esat Telecom Holdings Limited, its chairman Denis O'Brien, of Wellington Road, Dublin, and Aquado Limited, an Esat subsidiary registered in the Isle of Man. Mr Rogers claims he was aggressively head-hunted and "love-bombed" by Mr O'Brien from January 1996 until May 1997 when he agreed to join Esat for a three-year period. He claims he provided the required services for Esat with care, skill and diligence but was dismissed in March 1998, just 10 months later.

Under an agreement allegedly made in 1997 with Mr O'Brien, Mr Rogers claims he is entitled to 1 per cent of the equity in Esat Telecom - valued at some £19 million pounds.

He also claims that, acting on undertakings and representations from Mr O'Brien, he entered an agreement with Aquado dated May 20th, 1997, where Aquado employed him to provide services to Esat as director of customer care and to develop a customer care business of which he would be chief executive officer for three years and owner of 25 per cent equity. He further claims Aquado and Esat also entered an agreement, also dated May 20th, 1997, to provide Esat with his services upon specified terms and conditions.

Continuing his opening of the case yesterday, Mr Adrian Hardiman SC, with Mr John McBratney SC and Mr Rory MacCabe SC, for Mr Rogers, said his client was entitled to the 1 per cent share option in Esat which he was offered on joining the company. Counsel said his client had never exercised the option during his time with Esat and had been unable to do so because the defendants had breached their agreement with him.

In their joint defence, Esat and Mr O'Brien deny Mr Rogers was induced by Mr O'Brien to cease his employment with McLeod USA in May 1997. Without prejudice to that denial, it is pleaded Mr O'Brien was at all material times acting as agent for a disclosed principal, Esat Telecom and, if any undertakings were given to Mr Rogers, which is denied, these were made by Mr O'Brien acting as an agent of Esat.

In its defence, Aquado claims it reached an employment agreement dated May 20th 1997 with Mr Rogers and that it also entered an agreement with Esat. All three defendants - Esat, Mr O'Brien and Aquado - claim the May 20th, 1997, agreement embodied the entire agreement and understanding between Mr Rogers and Aquado and that Mr Rogers had authorised Aquado to confirm no contract of employment or service existed or was created between Mr Rogers and Esat.

The defendants claim Esat sought to hold a disciplinary investigation under the contract between Mr Rogers and Aquado on the grounds Mr Rogers was not performing his services in a proper manner. They claim Mr Rogers did not co-operate with this. Aquado claims that, because of the disagreement between Esat and Mr Rogers, Esat released Aquado from its obligations under the agreement between the two companies and that agreement had terminated.

Aquado also claims that Mr Rogers, by not providing the required services for Esat and failing to co-operate with it, was in breach of his agreement with Aquado and had thereby repudiated his contract with Aquado on or about April 28th, 1998, which repudiation was accepted by Aquado. In the alternative, it claims that the actions and conduct of Mr Rogers entitled Aquado to terminate its contract with him.

The hearing before Mr Justice McCracken continues today.