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Complainant Summarily Dismissed Due to Anticipated Breach of Non-Compete Clause Receives Unfair Dismissal Award

The Complainant in Andrew Revell v Life and Balance Centre ADJ-00039884 was summarily dismissed for gross misconduct for being in breach or anticipated breach of his non-compete clause. 

Facts: The Complainant commenced employment with the Respondent as a Chiropractor in July 2020 and was summarily dismissed for gross misconduct on 25th April 2022. In April 2022, before his dismissal, he was offered alternative work that would enable him to obtain a critical skills employment permit (he had a general employment permit in respect of his employment with the Respondent) and apply for residency. He met with his employer to inform him of this and his decision to move on from the Respondent to another chiropractor. The meeting was amicable and the Respondent did not mention the Complainant’s non-compete clause.

He was then invited to a further meeting on 22nd April with no notice that it was disciplinary or investigative in nature. On 25th April, the Complainant could not access his practice hub and later that day he had a further meeting with the Respondent during which he was summarily dismissed.  The Respondent argued that the Complainant was dismissed because of a breach or potential breach of his non-compete clause which prohibited him from practising within 6km of the Respondent’s practice. Initially the Complainant believed that his contract of employment was not valid, but he nevertheless assured the Respondent that he had not and would not solicit any patients from the Respondent’s practice. The Complainant acknowledged that he was wrong to claim that his contract was not valid however due to the assurances he had provided to the Respondent he argued that the Respondent should not have lost trust and confidence in him.

Following his dismissal in April 2022, the Complainant was unable to work elsewhere until he received a new work permit in July 2022. His new employment in fact only commenced in mid-September 2022 because his new employer had to find an alternative location after its lease fell through.

The Complainant lodged claims with the Workplace Relations Commission (the “WRC”) under the Unfair Dismissals Acts 1977, the Payment of Wages Act 1991 and the Terms of Employment Information Act 1994. However, he withdrew his Payment of Wages claim before the hearing.  

Decision: This case was heard by an Adjudicator, Kara Turner, on 4th April 2023.  Evidence was provided that the Respondent had sent a letter to the Complainant stating that his dismissal was “because of the very strong likelihood you are planning to commit a serious breach of Life and Balance Centre’s non-compete agreement as outlined in your contract of employment”.  The letter further set out a process which  included an investigation meeting of 22nd April, a disciplinary meeting on 25th April, and a right of appeal. The Respondent’s handbook defined gross misconduct as a “breach or intention to breach employment contract”.

The Adjudicator found that the Complainant’s dismissal was both substantially and procedurally flawed. She noted that no breach had occurred and that within the Complainant’s non-compete clause there was reference to the possibility of an agreement being reached between the parties. Therefore, it was possible that no breach would occur making the Respondent’s decision to dismiss unreasonable. She noted that no alternative lesser sanction was considered and therefore the dismissal was substantively unfair. She further noted that the Complainant was unaware that the 22nd April meeting was investigative or disciplinary in nature and he was not on notice that the process being carried out could end in his dismissal. The Complainant’s evidence that he could not log into the hub on the morning before the meeting of the 25th April was deemed by the Adjudicator to confirm that the decision was made prior to that meeting. The Adjudicator noted that the Respondent’s handbook provided that “each employee’s right to natural justice and fair procedures will be upheld at all times” and that “from the first formal stage of the disciplinary procedure, employees are advised and have the option to have a colleague/ workplace representative present.” The Respondent’s handbook only provided for summary dismissal following an investigation and disciplinary meeting.

The Adjudicator awarded €12,000 to the Complainant in respect of his Unfair Dismissal claim for the loss he incurred from the date of his dismissal until the expiry of his employment permit with the Respondent.

Takeaway for Employers: Employers should ensure that they are able to demonstrate that they gave careful consideration to alternative sanctions before deciding to summarily dismiss an employee. Summary dismissal is regarded as “the nuclear weapon in the employer’s arsenal”. It is essential when dismissing an employee that employers comply with their own procedures and ensure that dismissal is a proportionate sanction.

Link  – https://www.workplacerelations.ie/en/cases/2023/june/adj-00039884.html

Authors – Nicola MacCarthy, Jenny Wakely, and Anne O’Connell

30th June 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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