A chiropractor accused by his former employer of refusing to abide by a non-compete clause in his contract and sacked has won €12,000 for unfair dismissal by the Workplace Relations Commission.
Andrew Revell, who had been the sole chiropractor working for the Life and Balance Centre in south Dublin, secured the order on foot of a complaint under the Unfair Dismissals Act 1977.
He told the tribunal that after telling his employer he planned to "move forward" with his career and take up a higher-paying job, his employers "would not accept" at a meeting on 22 April 2022 that he did not know the precise location of his new role.
The centre's owners, Peter Ross and Dr Tammy Verlaan-Ross, said they were concerned that Mr Revell was going to be in breach of a non-compete clause in his contract of employment, which barred him from being involved with any chiropractic practice within a six-kilometre radius for a year "in the event of termination".
Mr Revell said their response had been to refer to making complaints to the Chiropractic Association of Ireland and immigration authorities, characterising this as a "threatening" approach.
The complainant, who said he had been brought in on an employment permit to take up the job, felt he was left in a "very vulnerable position" and said the meeting ended "awkwardly" as he could not provide an address for his new employer.
"There was definite tension," he said in evidence.
At a further meeting three days later, Mr Revell said he questioned whether the contract was still legally-binding, as it stated a completion date of July 2020.
The complainant said he gave a specific commitment not to solicit any patients from the centre, and asked about his notice period and garden leave.
He said Mr Ross responded that garden leave did not apply "in a case of gross misconduct".
Dr Verlaan-Ross then remarked that the complainant had shown his "true colours", was "no longer welcome at the practice" and asked him to hand back equipment and keys, he said.
Mr Revell said the meeting was the last time he had any contact with his former employers prior to a WRC hearing in his case in April this year.
In evidence, Mr Ross there was an "absolute shortage" of chiropractors in Ireland and that the non-compete clause was needed "to protect the business from financial ruin".
He said that when Mr Revell told him at their final meeting in 2022 that his contract had a completion date in 2020 – and that the employer "had better go check the contract" – it was a "major concern" for him.
"It was looking like [Mr Revell] could act whatever way he wanted without regard or respect for the non-compete and non-solicit clauses in the contract," he said.
Mr Ross's evidence was that the meeting concluded with Mr Revell stating he "couldn’t work for [the centre] any more".
Dr Verlaan-Ross said termination had not been decided upon ahead of the meeting, but that the trust they had in Mr Revell was "gone".
Mr Revell’s barrister, Kevin Bell, appearing instructed by Ahern Rudden Quigley Solicitors, said the non-compete clause was "void and unenforceable" and that his summary dismissal was unfair on procedural grounds.
The clinic’s management denied the claims.
In her decision on the case, adjudicating officer Kara Turner wrote that Mr Revell had taken up a "misguided and inappropriate" stance on his contract when his employer raised the non-compete clause.
Ms Turner wrote that the end date on the contract was "clearly erroneous" but that there could have been "no breach" of the clause before termination since it would not apply to Mr Revell until after his employment’s termination.
However, Ms Turner wrote that in view of the fact that Mr Revell had been unable to log into the practice’s computer system that morning; the lack of any break during the meeting and the fact that he was informed of dismissal without Mr Ross and Dr Verlaan-Ross consulting each other, she made a finding that the decision to dismiss had been made ahead of the meeting.
"I find the respondent’s reliance on the complainant having breached the clause to be without merit," she wrote.
She quoted case law calling summary dismissal "the nuclear weapon" for an employer – and said that in view of no evidence of a lesser sanction having being considered, she ruled that sacking Mr Revell on the spot was "unreasonable and substantively unfair".
Ms Turner added that the employer failed to employ the multi-stage investigative and disciplinary procedures set out in its own handbook and ruled the dismissal was unfair on both substantive and procedural grounds, awarding €12,000 for financial loss.
The adjudicator also upheld a further complaint by Mr Revell under the Terms of Employment (Information) Act 1994 over the employer’s failure provide a written statement within two months addressing annual leave entitlements, awarding Mr Revell a further €2,500 in compensation for a rights breach.
The total orders against the Life and Balance Centre were €14,500.
