Complainant

Respondent

Parties

Andrew  Revell

Life And Balance Centre

Representatives

Kevin Bell BL instructed by Ahern Rudden Quigley Solicitors

 Peter Ross

Act

Complaint Reference No.

Date of Receipt

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

CA-00051443-001

30/06/2022

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

CA-00051443-002

30/06/2022

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

CA-00051443-003

30/06/2022

Complaints pursuant to the Unfair Dismissals Act 1977, the Payment of Wages Act 1991 and the Terms of Employment (Information) Act 1994 were received by the Workplace Relations Commission on 30 June 2022.

The complainant’s written submission indicated, prior to the hearing, that the complaint under the Payment of Wages Act 1991 was withdrawn.  This was confirmed by the complainant’s representative at the outset of the hearing. 

The claim of unfair dismissal concerned the termination of the complainant’s employment on grounds of gross misconduct on 25 April 2022. 

The complaint under the Terms of Employment (Information) Act 1994 was that the complainant had not received a statement in writing of the terms of his employment as they related to his holiday entitlement.

The respondent disputed the complaints against it.

It was submitted that the complainant’s summary dismissal from employment was procedurally unfair.  It was further submitted that the grounds for the complainant’s dismissal came down to a void and unenforceable non-compete clause and/or the complainant having informed the respondent of his intention to take up alternative employment. 

The complainant was not provided with written particulars of paid leave, contrary to section 3(1)(j) of the Terms of Employment (Information) Act 1994.

Summary of the complainant’s evidence

The complainant’s employment with the respondent commenced in July 2020.  He enjoyed his time working with the respondent and learned a lot as he had just qualified the previous year.  He gained confidence to enable him to move forward in his career. 

The complainant received an offer of work in April 2022 that would enable him to get a critical skills employment permit and apply for residency.  It also provided an opportunity to earn more money and have better hours of work.

The complainant outlined his remuneration package with the respondent as an annual salary of €30,000 and payment of 40.56% of all services rendered by the complainant, where the gross fees collected from the services exceeded the monthly salary of €2,500.00.

The complainant communicated to Mr Ross on 19 April 2022 his final decision to move on from the respondent’s employment.  He told Mr Ross that he was moving to work with another chiropractor.  Mr Ross did not ask any questions about this or non-compete clauses.  The meeting ended amicably.

The complainant was asked on 22 April 2022 to attend a meeting that day with Mr Ross and Dr Verlaan-Ross so that they could discuss a way forward.  He wasn’t advised that it was an investigative or disciplinary meeting.  At the beginning of the meeting, Dr Verlaan-Ross talked about hand-over plans and how the complainant would finish up and the complainant agreed with what was being proposed.  The complainant outlined how Dr Verlaan-Ross and Mr Ross were surprised when he told them he would not be working from a practice in the city centre but that it would be in South Dublin.  They would not accept that the complainant did not know the precise work location.  They queried how he could have submitted a work permit application without a work location.  The complainant described the respondent’s response to him informing them that he would be working in South Dublin as threatening.  He said that the respondent referred to lodging complaints with the Chiropractic Association of Ireland and the Immigration Bureau, and deportation.  The complainant’s understanding was that he was in a very vulnerable position.  He said the meeting concluded awkwardly as he couldn’t provide the respondent with an address for his next place of work and there was definite tension.  There was no suggestion that it was or would be treated as a disciplinary matter.

At work on 23 April 2022, Mr Ross told the complainant that Dr Verlaan-Ross and he would like to meet with the complainant on 25 April to get more clarification.

On the morning of 25 April 2022, when the complainant tried to log-on to the respondent’s practice hub to complete outstanding notes, he received an incorrect details automated message.  This had never happened before.

The complainant met with Dr Verlaan-Ross and Mr Ross at 2.00pm on 25 April 2022.  Mr Ross took the lead at the meeting and provided the complainant with clause 12 of the contract concerning non-competition.  The complainant said that he was under a wrong impression at the time that the contract was not legally binding, and he told the respondent that the contract had concluded.  The complainant said that he thanked Dr Verlaan-Ross and Mr Ross for the opportunity they had given him and gave a specific commitment that he would not take any patients from the practice.  The complainant accepted that it was wrong of him to say that the contract was not legally valid.  The complainant believed that the respondent felt threatened at the meeting and that they didn’t believe anything he was saying.  The complainant said that he raised the matter of garden leave and Mr Ross told him that this was not applicable in a case of gross misconduct.  He also queried the notice provision in the contract if the respondent was saying the contract was valid.  The complainant said that the meeting concluded with Dr Verlaan-Ross saying that the complainant had shown his true colours, that he was no longer welcome at the practice and the complainant being asked to return chiropractic equipment and the keys to the practice.  The complainant understood from the meeting that the respondent was terminating his employment that day.  The meeting was the last direct communication the complainant had with Dr Verlaan-Ross and Mr Ross.  He received a letter by email in May 2022 setting out the reason for the termination of his employment on 25 April 2022 and he instructed his solicitors to appeal that decision. 

The complainant was unable to work for anyone else until he received a new work permit in mid-July 2022.  The complainant’s earnings from his subsequent work did not reach the same levels as that earned with the respondent until January 2023.  The complainant outlined how, in discussions that took place in early April 2022 about him staying on with the respondent, Mr Ross had projected an annual salary for the complainant of €71,500.00. 

The complainant accepted that he had misunderstood and misinterpreted his contract with the respondent in terms of him saying to the respondent that it was not legally valid.  The complainant gave assurances to the respondent about not taking patients to any new practice and confirmed that he had not directly solicited any patients from the respondent.

At the hearing, Mr Ross questioned the complainant about the nature of the complainant’s chiropractic care in his new workplace and the treatments he delivered with the respondent.   When asked, the complainant said the respondent should not have lost trust and confidence in him as he had advised previously that he had no intention of taking any patients from the respondent.  He also disputed the respondent’s assertion that he persisted in not denying that his new workplace would be within 6km of the respondent’s place of business.  When asked by Mr Ross about his work after leaving the respondent, the complainant said he took up work in mid-September 2022 with a practice based in Dublin 2.

The complainant informed Mr Ross, co-owner of the respondent business, on 19 April 2022 of his intention to cease employment with the respondent to go to work with another chiropractor.  Mr Ross and his partner Dr Verlaan-Ross held an investigative meeting with the complainant on 22 April 2022 to discuss the complainant’s plans.  The complainant said that he would be willing to stay until his work permit expired or would work out notice.  The complainant advised that he would be going to work with the other chiropractor in a new practice in South Dublin and that he had submitted a critical skills employment permit application for this employment.  The respondent was concerned about the precise location of the complainant’s new employment because of the non-compete clause in the complainant’s contract.  The respondent advised the complainant that it would be unwise of him to breach the non-compete clause.  The respondent convened a disciplinary meeting for 25 April 2022 as it appeared to it that this was a serious disciplinary matter.  The complainant expressed his views at the meeting on 25 April that he was not bound by the contract, including the non-compete clause, due to the completion date of the contract being detailed as July 2020.  The respondent informed the complainant at this meeting that it had no choice but to cease his employment because of the high risk to the business if the complainant felt he was not bound by the non-compete, non-solicit and other clauses in the contract.  The respondent submitted that the complainant was in breach of the non-compete clause of his employment contract in stating his intention to work as a chiropractor in South Dublin but refusing to confirm that the new practice location would not be within 6km of the respondent’s place of practice.  The respondent submitted that in the circumstances it had no option other than to immediately terminate the complainant’s employment without notice on grounds of gross misconduct.  

Summary of the evidence of Mr Peter Ross

The complainant verbally informed Mr Ross on 19 April 2022 that he intended finishing up working with the respondent and advised Mr Ross that he was going to work with another chiropractor.  Mr Ross knew of the other chiropractor and his practice in the city centre.  

Mr Ross requested the complainant meet with him and Dr Verlaan-Ross on 22 April 2022 to discuss how the complainant would finish up as he was the sole chiropractor working at that time with the respondent.  The respondent also wanted to ensure that there would be no breach of non-solicit and non-compete clauses in the complainant’s contract.   At this meeting, the complainant advised that he would be working in a new practice in South Dublin with the other chiropractor.  This immediately raised concerns and he raised with the complainant the matter of the non-compete clause in the complainant’s contract.  Mr Ross advised the complainant that the respondent was concerned about a potential breach of the non-compete clause.  At this point, the complainant said that he was not familiar with the clauses in the contract, and he also advised that a practice location had not yet been determined.  The complainant further advised that he had submitted a critical skills employment permit application for this new employment.  Mr Ross was aware that a requirement of the employment permit process was to provide a business address.  The complainant refused to say where his new work location would be or confirm that it would not be within 6km of the respondent’s place of business.  The meeting closed at this point as the complainant said he needed to review the clauses in his contract.

At a meeting on 25 April 2022, the complainant was advised that the respondent would be required to enforce the non-compete clause.  Mr Ross explained that there was an absolute shortage of chiropractors in Ireland and this was why the non-compete clause was so important.  Mr Ross had a copy of the contract and a map showing the 6km radius for the complainant at this meeting.  The complainant said that he was not bound by the contract of employment as it specified a completion date of 2020 and advised the respondent they had better go check the contract.  This raised a major concern for Mr Ross as it was looking like the complainant could act whatever way he wanted without regard or respect for the non-compete and non-solicit clauses in the contract.  The complainant said that he had no reason to give any information about where he was going to work.

The meeting on 25 April 2022 concluded with the respondent informing the complainant that he couldn’t work for them anymore.  The complainant said that if the respondent believed there was a valid contract, the complainant was owed 4 weeks’ notice.  Dr Verlaan-Ross took over the complainant’s patients the following day.

Mr Ross said that whilst his concern from the meeting on 22 April was about the non-compete clause and the complainant setting up in practice in breach of same; by the 25 April meeting, his concern was about the complainant not having any respect for the contract or that the contract would no longer hold up.  The complainant had access to all the practice members over a 2-year period and this was potentially a serious loss to the business.   The non-compete clauses were so important in this setting in order to protect the business from financial ruin.

Mr Ross confirmed that the complainant commenced employment providing mainly chiropractor duties with the respondent in July 2020 and that the contract was signed when the complainant came to Ireland.  The respondent employed no other employees.  Mr Ross referred to the complainant’s employment permit with the respondent which was in respect of the period from 6 July 2020 to 5 July 2022.  Mr Ross acknowledged that the employment permit was in the complainant’s name, that the employer’s details on the work permit could be changed and that the complainant was not tied to working with the respondent.

In relation to the complaint under the Terms of Employment (Information) Act 1994, Mr Ross advised that the written statement of terms was the contract that issued to the complainant on commencement of his employment with the respondent.

Under cross-examination, Mr Ross confirmed, based on his conversation with the complainant on 19 April 2022, that he assumed the complainant would be working with the other chiropractor in Dublin city centre and that the respondent hoped the complainant would stay to work out the end of his contract with the respondent.

Mr Ross confirmed that the complainant was not informed of any allegations against him, of his right to be accompanied or of the risk that he might be dismissed on foot of the investigation, prior to the meeting on 22 April 2022.  When asked about the same matters with regards to the meeting on 25 April 2022, Mr Ross said that the complainant was aware of the particulars of misconduct in relation to the breach of the non-compete clause arising from the meeting on 22 April 2022.  Mr Ross did not respond directly when asked who threatened the complainant at the meeting on 22 April 2022 of reporting him to regulatory bodies and taking legal action against him.  When it was put to Mr Ross that the complainant had no access to the practice hub when he tried to log-in on the morning of 25 April 2022, Mr Ross said that he had no recollection of this and was not aware of a log-in issue.   Mr Ross denied that any decision was made in advance of the meeting of 25 April 2022 to terminate the complainant’s employment.  In response to questions on how the decision to terminate the complainant’s employment was communicated to the complainant, Mr Ross did not agree with the complainant’s version of events and said that the complainant was told he could no longer work for the respondent, he had no respect for the contract, and he was to give his keys back.  In relation to the dismissal without notice, Mr Ross said that because of the seriousness of the complainant’s conduct, there was no payment in lieu.  Mr Ross said that they followed the procedures in the Employee Handbook as best they could and that the risk to the business was too high to consider any sanction short of dismissal.  Mr Ross confirmed that he became aware in 2023 that the complainant was working at two locations within 6km of the respondent’s business and that it was too costly and stressful to do anything to stop this breach of the non-compete clause. 

Summary of the evidence of Dr Tammy Verlaan-Ross

The meeting with the complainant on 22 April 2022 was to investigate and discuss the complainant’s exit strategy.  It was hoped that the complainant would work out his notice as Dr Verlaan-Ross had personal matters she wished to attend to before returning to work.  It was a surprise when the complainant advised at the meeting on 22 April that he was going to be working in an unestablished practice in South Dublin.  The complainant said that it was none of our business when we said it was important that we know the details around this.  It was a surprise when the complainant said that he was not aware of the contract and the 6km non-compete clause because the complainant had asked questions about the contract when he had received it.  The complainant did not provide any direct commitment about how long he would stay on for and he was already quite far along the process with his critical skills employment permit application.  The respondent had hoped the complainant would be able to stay on and asked was he aware of having to give 4 weeks’ notice.  The respondent didn’t see how much further it could go with this meeting and it concluded with the complainant saying that he would go and look at his contract.

Dr Verlaan-Ross said that they went to the meeting on 25 April 2022 hoping to have a discussion with the complainant about how best to make things work.  She was shocked when the complainant brought up an issue with the contract’s expiration date and at his position that he wasn’t bound by the contract, or any aspect of it, including the non-compete and non-solicit clauses.  She did raise the matter of the complainant having submitted a critical skills employment permit application and did tell the complainant that he was bound by the code of ethics of the Chiropractic Association of Ireland.  Dr Verlaan-Ross said that the termination of the complainant’s employment on 25 April 2023 was not premeditated; it was not in their best interests for that to happen but that the respondent felt the trust it had had in the complainant was gone where he didn’t consider himself bound by the contract.  She told the complainant that she didn’t see how the respondent could trust the complainant given the contact role he had with patients.

In cross-examination, Dr Verlaan-Ross said that the meeting of 22 April 2022 was not a disciplinary investigative meeting but to find out the complainant’s plans.  The respondent did not suspect going into that meeting that the complainant was going to breach his contract, the purpose of the meeting was to clarify how the complainant would finish up in the respondent’s employment.  The witness did not recall a break in the meeting on 25 April 2022.  When asked about when the decision to dismiss was taken, the witness said that this was not discussed in advance by her and Mr Ross but that they both said simultaneously that they could not have the complainant back in the office and asked for the complainant’s keys back.  They both knew they couldn’t have the complainant coming to the office the next day and they needed to get advice.

CA-00051443-001 (Unfair Dismissals Act 1977)

The respondent terminated the complainant’s employment at a meeting on 25 April 2022 in a summary manner on grounds of gross misconduct.  The complainant subsequently received by email from the respondent a letter dated 25 April 2022 confirming the immediate termination of the complainant’s employment and advising a further letter would follow outlining in detail the reason and process followed in relation to the termination of his employment.  I note that solicitors instructed by the complainant corresponded with the respondent on 12 May 2022 on various matters relating to the termination of the complainant’s employment.  By letter dated 23 May 2022 to the complainant, the respondent outlined the reason for the termination and the process it followed in relation to the dismissal.

The reason for the termination detailed in that letter is:-

“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 process outlined in the same letter is of an investigative meeting on 22 April 2022 to further discuss the complainant’s plans and when he wished to finish up with the respondent; a disciplinary meeting on 25 April 2022 in relation to an anticipated breach of the non-compete clause of the complainant’s contract of employment and an immediate termination of employment of the complainant’s employment without notice on grounds of gross misconduct.  By way of process, the letter also referred to a right to appeal the dismissal.

 The Relevant Law

Section 6(1) of the Unfair Dismissals Acts 1977 – 2015 (the “Acts”) provides as follows:-

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Sections 6(4)(b) of the Acts deems, for the purposes of the Acts, a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal.  In accordance with section 6(6) of the Acts, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) of the Acts provides that in determining whether a dismissal is unfair, regard may be had:-

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  The respondent’s case is that the complainant was dismissed by reason of gross misconduct. 

The legislation requires me to consider the substantive and procedural fairness of the respondent’s decision to dismiss the complainant.

Substantive Fairness

I note at the outset that an instance of gross misconduct detailed in the respondent’s Employee Handbook is “breach or intention to breach employment contract”.

It is not my function to substitute my views and opinions for those of the respondent rather I must consider against the facts what a reasonable employer in the respondent’s position and circumstances at the time would have done and decided.

In this case, I must assess in the first instance whether it was reasonable for the respondent to dismiss the complainant on the basis that there was a very strong likelihood that the complainant was planning to commit a serious breach of the non-compete clause in the complainant’s contract of employment.   It was the respondent’s case that the complainant’s conduct in asserting that he was not bound by the contract of employment and informing the respondent that he was going to work in a practice in South Dublin gave rise to a breach/potential breach of the non-compete clause in his contract of employment and that this amounted to gross misconduct warranting immediate termination of his employment.

The following material facts are not in dispute.  The complainant commenced employment with the respondent in July 2020.  He had a general employment permit in respect of his employment as a chiropractor with the respondent which was valid from 6 July 2020 to 5 July 2022.  The complainant advised the respondent on 19 April 2022 that he was not going to renew his employment permit with the respondent and that he was going to take up employment with another named chiropractor.  At a meeting on 22 April 2022, the complainant told the respondent that he would be working in a new unestablished practice in South Dublin.  There was reference by the respondent at this meeting to the non-compete clause in the complainant’s contract of employment.  A precise location for the new practice was not provided by the complainant.  The complainant in a meeting with the respondent on 25 April 2022 expressed his opinion that he was not bound by the contract of employment due to the completion date detailed therein having passed.  The respondent terminated the complainant’s employment at this meeting. 

I consider the position adopted by the complainant at the meeting of 25 April 2022 regarding the contract of employment to have been misguided and inappropriate.  The respondent had raised the non-compete clause with the complainant in the meeting of 22 April 2022 and it is apparent that the complainant’s way of dealing with this issue was to assert that he was not bound by the contract.   The completion date in the contract was clearly erroneous by reference to the circumstances in which the complainant came to be in the respondent’s employment and the details of his employment permit.  I accept that the respondent was shocked and surprised at the complainant’s assertion at the meeting on 25 April 2022 that he was not bound by the contract.   Its evidence was that it didn’t know whether the contract would hold-up and told the complainant at the meeting that it would have to get legal advice regarding the contract.  I note however that the respondent proceeded to terminate the complainant’s employment at this meeting.  I consider it relevant that the complainant had advised the respondent at the meeting of 22 April that he was happy to continue working with the respondent until his work permit expired or to work out his notice.  It is common case that there was no break during the meeting on 25 April and that the complainant’s dismissal was communicated to him without Mr Ross and Dr Verlaan-Ross consulting each other.  Having regard to the foregoing and the complainant’s evidence that he was unable to log-in to the respondent’s practice hub on the morning of 25 April, I find that the respondent made the decision to dismiss the complainant before the meeting on 25 April and before the complainant expressed his opinion that he was not bound by the contract.

The respondent’s submission referred simultaneously to the complainant’s breach of the non-compete clause and a very high likelihood of the complainant breaching the non-compete and other restraint of trade clause, leaving the respondent with no option other than immediate termination of the complainant’s employment without notice for reason of gross misconduct. The respondent made submissions at the hearing regarding the enforceability of the non-compete clause and the work activity of the complainant after the termination of his employment being in breach of the non-compete clause and the conditions of an employment permit.  As set out above, what I am concerned with is assessing the respondent’s decision to dismiss and its reasonableness in the circumstances.  I consider it worth noting that this case does not involve an alleged breach by the complainant of a loyalty and fidelity clause during his employment with the respondent. 

The non-compete clause in the contract provided:- 

“In the event of termination of this contract for whatever reason, the Associate shall not at any time during a period of 12 months following such termination, directly or indirectly engage in any business related to the practice of Chiropractic within a radius of 6km from Life and Balance Centre.”

I acknowledge how the respondent would have been concerned on being informed by the complainant, the sole chiropractor working in the practice at the time, that he intended finishing up with the respondent and was going to work in another practice.  I also appreciate how this concern could have been compounded by the complainant’s assertion that the contract was not binding on him.  However, I am satisfied that there could have been no breach of the non-compete clause by the complainant on 25 April 2022; he did not come within the scope of the clause at that time as there had not yet been a termination of employment.  I find the respondent’s reliance on the complainant having breached the clause to be without merit.

Turning then to consider whether it was reasonable for the employer to terminate the complainant’s employment on grounds of an anticipated breach or a very high likelihood that he would breach the clause. 

The parties disagreed as to whether the complainant would not or could not tell the respondent where the new location of work would be.  Either way, I am not satisfied that a very high likelihood of the complainant breaching the non-compete clause justified the termination of the complainant’s employment.  There were alternatives open to the respondent.  I note in particular a clause in the non-compete section of the contract which provided that the respondent may agree to discuss an arrangement for an employee wishing to establish themselves in practice within 6km of the respondent and/or the transfer of files or practice members.  Based on the respondent’s direct evidence, I am satisfied that the information provided by the complainant at the meeting of 22 April was that the complainant would be working with another chiropractor in South Dublin and, when the respondent raised the matter of the non-compete clause, the complainant said he would need to review the clauses in the contract.  The respondent did not contest the complainant’s evidence that he assured the respondent he would not solicit any of the respondent’s clients.  I have already found on the evidence before me that the respondent made the decision to dismiss the complainant in advance of the meeting of 25 April. 

Submissions on behalf of the complainant referred to the Labour Court decision in Vet v Kilsaran Concrete UD/16/7.  I concur with the Court’s description of summary dismissal as “the nuclear weapon in the employer’s arsenal” and how it is incumbent on an employer to be alert to the question of whether summary dismissal is a proportionate sanction.  There was no evidence in this case of a lesser sanction having been considered by the respondent.

I am not satisfied that the respondent acted reasonably on foot of the information provided by the complainant at the meeting of 22 April 2022, in summarily terminating the complainant’s employment on grounds of gross misconduct on 25 April 2022.  I accordingly find that the complainant’s dismissal was unreasonable and substantively unfair.

Procedural fairness

In determining this case, I have considered it appropriate, pursuant to s.6(7) of the Acts, to have regard to the reasonableness or otherwise of the respondent’s conduct in relation to the dismissal.

It was submitted on behalf of the complainant that the procedures invoked by the respondent were flawed. 

The letter from the respondent to the complainant dated 23 May 2022 included the following:-

“This letter also outlines the process we followed in line with our company handbook in dealing with disciplinary issues.”

I have very carefully considered the process followed by the respondent and cannot find that it was in line with the handbook or that it accorded with the basic tenets of fair procedures for the following reasons.

I note the respondent’s employee handbook which sets out the purpose, scope and principles of the policy.  I particularly note the statement that “each employee’s right to natural justice and fair procedures will be upheld at all times” and the statement 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 formal disciplinary procedure does provide for immediate dismissal in cases of gross misconduct without recourse to previous stages of the disciplinary procedure, but it is expressly stated that this is following an investigation and disciplinary meeting. 

The respondent met with the complainant on 22 April 2022 after the complainant informed Mr Ross that he intended taking up employment with another practitioner.  I am satisfied, based on the evidence of the parties, that the meeting on 22 April 2022 was arranged by the respondent for the purpose of discussing how and when the complainant would finish up, hand-over to Dr Verlaan-Ross and related matters.  Whilst this meeting was categorised by the respondent as an investigative meeting, I am satisfied that the meeting was not categorised as such in advance and certainly that the complainant was unaware of any disciplinary context.  It is my view that this meeting only became investigative in nature when the complainant informed the respondent that he was going to work in a new practice in South Dublin and would not or could not inform the respondent of the precise location of the new practice.

I am further satisfied that the complainant was unaware in advance of the meeting of 25 April 2022 that it was disciplinary in nature and totally unaware that that meeting could result in the immediate termination of his employment.  This is notwithstanding the respondent’s submission and evidence that it convened the meeting of 25 April as it was dealing with a serious disciplinary matter.

The complainant did not have the option of having a colleague or workplace representative present at either meeting.

The respondent needed to examine and fully consider the situation before deciding what it was going to do, and I am satisfied that this did not happen.  I have found from the evidence adduced that a decision to terminate the complainant’s employment was taken before the meeting of 25 April 2022.  A request to appeal the dismissal decision, which I note referred to an independent and external third party conducting the appeal, was not facilitated by the respondent on the basis that there wasn’t anyone further up the chain of management to submit an appeal to.  I further note that the appeal mechanism provided for in the employee handbook is ineffective in a business comprising the owners and a single employee.  Whilst I acknowledge the organisational and commercial reality of the respondent’s business, I cannot find that the respondent followed its own procedures in relation to the complainant’s dismissal, as it submitted , as best as it could, or that the complainant was afforded basic fair procedures prior to the respondent making the decision to dismiss him.  

In the circumstances, I find that the complainant’s dismissal was both substantively and procedurally unfair.

Redress

I have found that the complainant was unfairly dismissed for the reasons set out above.  In the circumstances, I must consider appropriate redress having regard to all the circumstances.

The complainant is in alternative employment and was not seeking to be re-instated or re-engaged by the respondent.  Accordingly, I consider compensation to be the appropriate form of redress.   

In terms of compensation, section 7(1)(c) of the Acts provides:-

“ (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, …”

The Employment Permits Acts 2003-2014 applied to the complainant’s employment with the respondent.  The effect of the employment permit held by the complainant at the relevant time was to allow him to work in this jurisdiction in the employment specified in the application and for the duration specified in the permit.  The complainant had informed the respondent that he was not going to renew his employment permit with the respondent when it expired and that he was going to work with another practitioner.  It was common case that the complainant told the respondent at the meeting on 22 April 2022 that he would be willing to stay until his work permit expired or would work out notice.  It was not disputed by the complainant that he had at some stage before the termination of his employment with the respondent applied for an employment permit working with the other practitioner.  I note the complainant’s direct evidence that he received his new work permit in mid-July 2022 but, because of a lease falling through and having to source another work location, his employment with the other practitioner did not commence until mid-September 2022.    In the circumstances, I find that the complainant incurred financial loss arising from his unfair dismissal in respect of the period from 25 April 2022 until 5 July 2022, the expiry date of his employment permit with the respondent. 

I have had regard to section 7 of the Acts and determine €12,000.00 compensation in respect of the loss to be just and equitable having regard to all the circumstances.  This figure is based on the information provided by the parties in respect of the complainant’s base salary of €30,000.00 per annum, the 40.56% commission paid on services rendered, pay slips and details provided in relation to the complainant’s pay from employment in 2022.

CA-00051443-002 (Payment of Wages Act 1991)

This complaint was withdrawn by, or on behalf of, the complainant.

CA-00051443-003 (Terms of Employment (Information) Act 1994)

This complaint concerned an alleged failure by the respondent to provide the complainant with written particulars of his holiday entitlement, contrary to section 3(1)(j) of the Terms of Employment (Information) Act 1994 (the “1994 Act”).

Section 3 of the 1994 Act at the material time required an employer to give to an employee, within 2 months of the employee commencing employment, a written statement of certain particulars of the employee’s terms of employment.  Section 3(1)(j) concerns particulars of “any terms or conditions relating to paid leave (other than paid sick leave)”.

The 1994 Act was transposed in domestic law to give effect to Directive 91/533/EC on an employer’s obligation to notify an employee in writing of the essential aspects of the contract or employment relationship.  Article 2(1) of the Directive provides:-

“An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as “the employee”, of the essential aspects of the contract or employment relationship.”

Article 2(2) sets out the information that must be covered by the employer and includes:-

“the amount of paid leave to which the employee is entitled or, where this cannot be indicated when the information is given, the procedures for allocating and determining such leave.”

I have reviewed the statement of employment issued to the complainant by the respondent.  There is a clause in the statement referring to paid leave which states that “any paid leave is incorporated into the percentage paid as in section 2.1”. 

Section 2.1 of the statement concerns salary and commission arrangements and details:-

“The Associate will be paid 40.56% of all services rendered by the Associate.

Holiday pay, Bank Holiday pay, Over-time pay and Employer PRSI has been included in percentage calculated above.”

The complainant’s employment with the respondent was his first experience of employment in this jurisdiction.  Terms or conditions relating to paid leave are an essential aspect of the contract, the particulars of which the complainant was not notified. The complainant did benefit from annual leave during his employment with the respondent however it is of note that the matter of holiday entitlements and details of holidays taken featured as an issue in communications between the parties following the termination of the complainant’s employment.  In my opinion this arose because of the provision of the contract which included holiday pay in the commission payment and the failure of the respondent to provide a written statement in accordance with section 3 of the 1994 Act.    

I find that the complaint is well-founded and, in accordance with section 7(2) of the 1994 Act, I consider it just and equitable having regard to all the circumstances that the respondent pay to the complainant compensation of €2,500.00.

CA-00051443-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977

I decide that the complainant was unfairly dismissed for the reasons set out above and direct the respondent to pay to the complainant €12,000.00 in compensation.

CA-00051443-002 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

This complaint was withdrawn by, or on behalf of, the complainant.  Accordingly, I find that this complaint is not well-founded.

CA-00051443-003 – Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

I find that this complaint is well-founded and direct the respondent to pay to the complainant compensation of €2,500.00, which I consider to be just and equitable having regard to all the circumstances.   

Unfair dismissal – Employment permit - Non-compete clause – Particulars of terms of employment