Complainant

Respondent

Parties

Karl  Hegarty

LSC Education Corporation Limited Leinster Senior College

Complainant

Respondent

Anonymised Parties

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Representatives

Patrick Marron B.L. instructed by  Patrick V. Boland & Son Solicitors

Andrew King B.L. instructed by  McMahon O'Brien Tynan, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00057053-001

09/06/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave evidence under affirmation.  Cross examination was facilitated and availed of.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

The respondent submitted that the complainant was dismissed for gross misconduct for setting up a rival school.  This represented a breach of his contract and was conducted in an underhand manner.

The respondent submitted that it went over and above what was required in that for the grievance procedure they conducted an oral hearing and then arranged for an independent appeal to be heard.

The respondent submitted that the disciplinary process was invoked by way of letter dated 21 December 2022 where it was indicated to the complainant that it was on the basis of Clause 8 of his employment contract. That paragraph speaks about other employment and states as follows:

“you must devote the whole of your time, attention and abilities during hours of work for the company to your duties for the company. You may not, under any circumstances, whether directly or indirectly, undertake any other duties of whatever kind during your hours of work for the company.

You may not come outside your hours of work for the company, without the prior written consent of the company, engage directly in any business or employment which is similar or in any way connected to, or competitive with, the business of the company or which could or might reasonably be considered to impair your ability to act at all times in the best interests of the company.

You must not carry on either for your own or in partnership with or on behalf of any other person or group during the term of your employment or for a period of 12 months after your employment with the company is terminated any business which may be in conflict with the business of the company within a 25 mile radius of Newbridge, County Kildare (the Territory). For the avoidance of doubt nothing in this clause shall preclude you from taking up employment with any state funded school within the territory”.

The respondent submitted that the complainant was advised that at no stage did it consent in writing or otherwise to the applicant engaging directly in any business or employment which is similar or in any way connected to or competitive with the business. The respondent also indicated that it was an express and or implied term of the employment agreement between the parties that the complainant would work exclusively for the company and that he would not set up a business in competition with it.

The respondent indicated that in its letter of 21 December 2022 that the complainant was revealed to be operating a competing grind-school business in close proximity to the respondent. It provided a list of services currently on offer at the time.

The respondent noted that the complainant set up his business in May 2022 as per the Companies Registration Office (CRO). He was asked to confirm a number of details regarding the operation of his business. The respondent noted that in the letter the complainant was informed that if there was a prima facie case against him, it would constitute gross misconduct and material dishonesty, warranting immediate dismissal. However, it was proposed to hold an inquiry and to allow the complainant the opportunity to explain in writing queries raised. The complainant was suspended on full pay to allow for the process to take place.

Over the next couple of days, the complainant returned a number of school keys and furnished his computer password to the respondent. The period of suspension on full pay was extended until 20 January 2023 to allow the complainant to respond more fully to the investigation process.

The respondent submitted that the complainant was asked to furnish his diaries in order to assist with the process and subsequently indicated that, having been asked for the diaries, he had destroyed them.

In the letter dated 20 January 2023, the respondent indicated that it had never consented in writing or otherwise to the complainant setting up or engaging in a business which was in a similar nature or maybe competitive to its business. It was noted that consideration was given to the employment contract, the disciplinary procedures furnished to him, that he admitted operating the other business in conflict with the respondent’s business within a 25-mile radius. It was noted that the complainant was in flagrant breach of his contract of employment, furthermore that the gravity and the underhand and dishonest fashion in which it was conducted meant that it amounted to gross misconduct. The respondent noted that the gross misconduct warranted dismissal, and the complainant was dismissed with immediate effect.

The respondent submitted that the complainant was also advised of his entitlement to appeal, which he invoked several days later. An appeal hearing was held on 7 March and the decision to dismiss the complainant was upheld.

The respondent noted that in April 2023 the complainant de-registered his ownership of the business in favour of his wife and that since taking his complaint to the WRC he has confirmed that he is in alternative employment but has refused to set out when that commenced.

The respondent submitted that the dismissal is not in dispute in relation to this matter and the issue before the WRC turns on whether the dismissal was fair having regard to the band of reasonable responses available to the employer. The respondent submitted that it applied fair procedures to the dismissal but noted that although its primary case is that the procedures were fair, it relies on Elstone v CIE (13 March 1977 CC) where it was held that

“the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the Court of Appeal it is clear for the provision of section 6 one of the Act that regard must be had to all circumstances and not to one circumstance to the exclusion of others”.

The respondent noted that the case against the complainant was clearly set out in the letter of 21 December 2022 where he was in advised of a breach of his contractual responsibilities. The allegation was made clear to him, and he was furnished with copies of both screen grabs from the website and documentation from the CRO. He was given ample time to respond to the allegations and when he initially refused to do so, the time was extended to allow him to respond fully in writing. Even though there were no grounds for an oral hearing, at the request of the complainant the respondent facilitated a lengthy oral hearing. He was invited to produce collaborative evidence in the form of his diaries but rather than submit them, he preferred to destroy the evidence and exclude it from the investigation. He was given the right of representation but chose not to avail of it. Thereafter he was given the right of appeal. To an outside independent HR specialist consultancy.

The respondent submitted that it is not for the WRC adjudicator to decide what sanction they would impose but rather to look at whether the sanction was within a band of what could reasonably have been imposed. It was submitted that, for the respondent, the alleged breach was clearly contrary to the employment contract and that it was planned and implemented over a prolonged period. The respondent could no longer trust the complainant. Taking all of the foregoing into account it was submitted that it was not unreasonable to impose the sanction of dismissal and that this was permitted by the scope of the disciplinary procedure.

The respondent submitted that there is no loss as it is clear that the complainant had already set up and was running a new business before he was dismissed. It is notable that he refused to insert the date of his employment in the claim form. The complainant has failed to furnish any information showing he has mitigated his loss, and the respondent submitted that this places a high burden on the complainant which he has not satisfactorily achieved.

The respondent vehemently opposes the claim from reinstatement made by the complainant in a situation where the relationship of trust and confidence has been utterly shattered by the actions of the complainant.

The respondent cited the following cases in support of its contentions:

Bank of Ireland v Reilly [2015] IEHC 241

British Leyland UK Ltd v Swift [1981 IRLR 91]

Conor O’Neill v Eurofins Professional Scientific Services Ireland Limited (ADJ-00031337)

Byrne v Marks & Spencer (Ireland) Limited (UD826/2013)

Shane Connolly v Tesco Ireland (UD 1394/2011)

Summary of Relevant Evidence:

The witness for the respondent was the owner of the business. He confirmed that he operated a private and second level school dealing with 50 and 60 years and there was a suite of offerings

The witness confirmed that he had engaged an outside HR consultancy to deal with HR matters. He stated that the complainant never took issue with Section 8 of the contract. He stated that he became aware of the business being operated by the complainant in November or December of 2022 when staff members raised it with him. He stated that he went to look at the website and found that when he compared the services being provided, that there were a number of services that his business provided which were being provided by the complainants newly founded business. He stated that when he drove past the premises in December 2022 there was no signage that linked the school with his own business. When asked was he advised of the registration of the business name he stated that he was never so advised.

The witness stated that although he had previously used an external HR consultancy, he formed the opinion that it was necessary for him to deal with this matter personally. He noted that he wrote to the complainant and gave him seven days to respond. The complainant was suspended on full pay. He noted that his concerns arose when senior staff members raised the viability of the school with him given that there was now a rival business under the same principal.

He noted that the complainant felt aggrieved with being asked for the keys to the school, he had two sets, and he was also asked for the password for the school laptop. Although he initially asked the complainant to respond to matters within seven days, this period was extended to the end of January.

The witness stated that he didn't agree that the two businesses were not competitive, and he stated that the complainant’s business was opened in a furtive and underhand manner. It was put to the witness that the complainant had come to him indicating that he would be operating a grinds business from his father's premises and that he would put up a sign for the respondent’s business.  However, the witness contradicted this assertion noting that the complainant certainly did not mention operating a private career guidance system from there.

The witness stated that he asked the complainant for all of his diaries, as the school holds official academic diaries, the complainant shredded the diaries, and the respondent was told that they were shredded in the interests of GDPR. The witness noted that on 13 January he sought the diaries and there was no reference to their destruction but by Monday 16th the diaries had been destroyed.

As for the allegations of bias the witness noted that it was for the complainant to explain to him why the services he was offering were not in competition with respondents’ business. He stated that he asked the complainant for his explanation, but he received no satisfactory answer that the complainant’s explanation fell far short of what he required. He knows that that the complainant fully accepted the contract and grievance code at the beginning of the meeting that they held and that when the complainant suggests that his business was complementary to the respondent’s business, the witness disputes this. He noted that the behaviour of the complainant was underhand and dishonest and to his mind comprised gross misconduct. He stated that the complainant was vague at times in the meeting to discuss his position and noted that whatever diary entries he had written were in code and could not be understood.

The witness stated that there was a fundamental breach of trust and there was some evidence to warrant immediate dismissal for gross misconduct. He stated that he was completely unaware of the business. In relation to the appeal, he stated that he engaged an outside HR company, which was completely new to the business, to conduct the dismissal appeal. That company looked at the dismissal and upheld the decision to dismiss.

The witness expanded his evidence noting that other teachers had said that the complainant said to them that the responded supported the new venture. He knew about the previous ‘phone away’ business, as the complainant and respondent had spoken in advance and he noted that that business was not in competition with the respondent’s business. He noted that students really only come from about a 25-minute mile radius from the school. He noted that although they had been having disagreements about other things these had been discussed and there was nothing else in contention between them at the stage of the dismissal. He noted that this was no festering sore. He noted that there was no prejudgment in place when he got the keys and the password from the complainant this was an issue of security for the business.

The complainant submitted that he set up a business that was not in competition or in conflict with his employer, the business would not have breached his contract of employment.  He submitted that the sanction was completely disproportionate.

The complainant commenced his employment with LSC on a part-time basis as a Career Guidance Counsellor.  But was later appointed to a full-time permanent position as Principal. In the period leading up to the dismissal, there was no Assistant Principal which increased the workload for the claimant.

The complainant submitted that the Terms of Employment document was not signed and dated by the employer, as required by s.3.4 of the Terms of Employment Act 1994 or employee. The employer seeks to rely on Clause 8 therein which provides: -

“You may not, outside your hours of work for the Company, without the prior written consent of the Company, engage directly in any business or employment which is similar or in any way connected to or competitive with the business of the Company or which could or might reasonably be considered to impair your ability to act at all times in the best interests of the Company.”

The complainant submitted that the respondent gave permission to him to provide private Career Guidance Counselling at a different premises across the road at Student Support and to place a respondent’s sign at that premises. The complainant marked the conversation in his diary.

On 22 October the complainant set up a website for his business.  Prior to that he had started providing student support services, operated from a premises owned by his father at the other end of town from the respondent.

After October 2022, the complainant approached three members of the respondent’s staff to provide grinds at his business location, and they accepted.  Insofar as the complainant’s company provided grinds to students, and three teachers from the respondent helped with that, he did not benefit financially from that. Those teachers were paid for the grinds directly, the complainant only benefited from giving private Career Guidance Counselling at his premises.  No sanction was placed on these teachers in question.

The complainant submitted that until the date of his dismissal, students from the respondent had not availed of student support services or been solicited by the complainant’s company.

The complainant submitted that he used his company to, amongst other things, encourage students to attend the respondent school.

The complainant noted that since 2014, other teachers from the respondent have given grinds outside of the school and were not reprimanded for this.   Insofar as the respondent gave grinds, the teachers were paid the money, not the respondent.  Provision of grinds by teachers did not decrease turnover for the respondent

The complainant submitted that he grew the respondent’s profile from the other business venture and promoted the respondent including on radio, in newspapers and at Library talks, and by interviewing interested students.

The complainant submitted that prior to 21/12/22 differences arose between him and the respondent, which did not concern the matters that led to his dismissal. Correspondence showed that the respondent was aggrieved with the complainant as to the following:

-          That the new school premises would not fit the number of students hoped for or planned for.

-          That the new school building was deficient in some respects.

-          That teaching hours had increased which added to the payroll

-          The respondent queried a payment of €1000 that were due to a named individual, and

-          That the complainant had engaged a new Agricultural Science teacher without approval.

The complainant submitted that on 21 December 2022, he was suspended pending an investigation into an allegation that he had set up a business in direct competition to his employer and without the employer's prior knowledge or consent.

By email on 22 December 2022, the complainant offered to cease operating the business, take down the associated website and not engage directly in any business or employment which was similar or in any way connected to or competitive to the business of the Company

The complainant was dismissed from his employment on 20 January 2023 for gross misconduct. The letter made allegations that the complainant had been dishonest, and secretive in his activity.  The complainant submitted that the dismissal was substantively unfair because his business was not competitive with the business of the respondent, his employer failed to give proper consideration to the offer from the complainant, and he was dismissed not solely because of the allegation relied on in the disciplinary process but because of other matters which were not investigated fairly.

The complainant submitted that the dismissal was procedurally unfair because his employer showed prejudgment – he was compelled to hand over keys and a computer password on 21/22 December 2022.   The complainant also submitted that given the unhappy differences that arose from the unfairly investigated allegations, the respondent should have appointed someone independent to conduct the investigation and disciplinary process.

It was also submitted that the respondents note of the investigation meeting show that the respondent had determined the issue before the investigation interview was concluded.  The employer also failed to assess fully whether the claimant engaged in a business that was “competitive with the business of the Company” during the course of the disciplinary hearing or the appeal.  The complainant also submitted that in dismissing him, the employer relied on part of Clause 8 which pertained to post termination obligations rather than obligations during the course of employment.

The complainant submitted that the law on the issue is summed up in Regan Employment Law in Ireland as follows

“[11.04] During the course of his employment, an employee owes an employer a duty of good faith and fidelity. While there is no exhaustive definition of the content of this duty, one feature is that an employee cannot compete directly with their employer during the term of his employment. Further an employee may, depending on his status and the potential for harm, be precluded from working for a competitor during his spare time….

[11.06] This reasoning has recently been endorsed in the English High Court in the case of ABK Ltd v Foxell, [2002] EWHC 9 with the High Court stating there that the question as to whether an employee has breached his obligation not to compete with, or harm, his employer will be a matter of fact and degree in each case;  of particular relevance being the seniority of the person in question and the potential for actual harm to the employer’s interests arising from the impugned conduct.”

The complainant submitted that since 16 December 2022, Section 6E of the Terms of Employment Information Act provides that an employer may not restrict an employee from taking up employment with another employer unless “such restriction is proportionate and is based on objective grounds”.  Relevant objective grounds applicable to the within case include

“(b) the protection of business confidentiality…

(d) the avoidance of conflicts of interests”

The complainant submitted that the employer herein bears the onus of proving that the objective grounds were applicable and that the restriction in Clause 8 was proportionate.

Summary of relevant evidence:

The complainant gave evidence that he was never presented with a contract and that there was a discussion where he refused to sign the contract as a result of Clause 8.  He dismissed any concerns regarding this clause.

The complainant stated that he set up one business and that the respondent had no problem with the business that permitted students to put away phones during schooltime. He used the profit from that business to start up a business aimed at supporting students. He noted that he was using teachers from the respondent’s employment to provide grinds to students. He stated that to describe it as underhanded was wrong in that it was adding to the profile of the respondent and resulted in an increase in numbers. He stated that rather than being secretive it would have been common knowledge, and he would have approached teachers directly.

The witness stated that he was not competing with respondent as none of the services would have been in common. He stated that the respondent knew about the existence of the business from May 2022. He stated that he had a disagreement with the respondent regarding the renovations done for the school he felt disrespected and that the respondent’s response was over the top.

The complainant stated that the respondent didn't seem to have the same interest in the school that he had shown previously, for example he didn't attend the school for the leaving search results for the first time.

The complainant stated he was shocked to be told to leave the building immediately on December 21st. He stated that he put in vast hours to the school and gave 100% to it. He felt that being told to leave was totally out of line and disproportionate. If the respondent had waited for another hour there would have been no one in the school and he felt that this action was a form of character assassination. He stated that he told his wife and family straight away and that plans for Christmas had to change. He stated that he sought legal advice immediately but that he felt like a rabbit in the headlights. He noted that he was preparing Christmas dinner when a stranger called to his house to collect the remaining keys for the business and noted that no care was given to his mental health and well-being.

The complainant suggested that decisions were obviously already made and that he was only given a very short deadline to respond to the allegations. He suggested taking down the website, but his correspondence was ignored. He noted that there was no damage to the respondent financially and he even got extra students for the respondent.

Under cross examination the witness confirmed that he had no written consent to set up the student support services but noted that none of the rest of the employees had written permission to do the external activities that they were engaged in. He stated that he had verbal permission to set up the business and said he was going to put up a sign. He was asked when he registered the website, and he said in and around August or September. He accepted that he did not mention the domain to the respondent.

In response to the query about placing the business into his wife's name he said that he was a busy man and that he changed things after all this happened. He knows that what he did outside of work on his own time is his own business. He stated that he provided exactly the same service. He provided some detail as to the renovation of the building for his business premises noting that the work was carried on over the summer.

It was put to the complainant that his business offers the same services as the respondent, but he noted that the respondent doesn't provide after school support. He confirmed that the time taken from one location to another was 15 to 20 minutes away. He stated that his business was working in conjunction with the respondent’s business.

He confirmed that he was given a right of reply to the allegations put to him and that when he wanted a face-to-face meeting he was provided with it. He sought the meeting to be recorded, and it was. It was put to him that he had a full oral hearing and then was entitled to a full appeal, and it was conducted by an independent expert.

As regards minimising his losses it was put to the witness that he was not being forthcoming about his income streams and has not provided any documentation to support the mitigation of his loss.

Under redirection it was put to him that the thread of the previous questioning was that he was working on his business during the time he was employed but that there was no complaint regarding his performance. He confirmed this and then gave some limited verbal evidence regarding his income sources.

There is no disagreement between the parties that the employment relationship came to an end by way of dismissal.  There was also no disagreement between the parties that the complainant destroyed the work diaries after being requested to provide them to the respondent as part of the investigation. 

There is no disagreement between the parties that the complainant received a written contract of employment, that they discussed it but that he did not sign it.  This does not mean that there was not contract in place, simply that the written one was not signed.

The complainant argues that the dismissal was an over-reaction, and that the respondent was aware of the of the creation of a new business having been informed verbally that it was being set up.  The complainant also argues that the business was not in competition with the respondent’s business.  The complainant also indicated that the investigation was tainted with bias due to his previous dealings with the respondent.

The respondent argued that there was no bias in the investigation, that the complainant was allowed to be represented, that the complainant was given an oral hearing regarding the investigation and that he was afforded a right of appeal, conducted by an independent person.  The respondent suggested that the dismissal fell within a band of reasonable actions that could be taken by a respondent in a similar situation.

Section 4 of the WRC’s Code of Practice on Grievance and Disciplinary Procedures states as follows:

1.       The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available.

2.       Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.

3.       Good practice entails a number of stages in discipline and grievance handling. These include raising the issue with the immediate manager in the first instance. If not resolved, matters are then progressed through a number of steps involving more senior management, HR/IR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.

4.       For the purposes of this Code of Practice, "employee representative" includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise.

5.       The basis of the representation of employees in matters affecting their rights has been addressed in legislation, including the Protection of Employment Act 1977; the European Communities (Safeguarding of Employees Rights on Transfer of Undertakings) Regulations, 1980; Safety, Health and Welfare at Work Act 1989; Transnational Information and Consultation of Employees Act 1996; and the Organisation of Working Time Act 1997. Together with the case law derived from the legislation governing unfair dismissals and other aspects of employment protection, this corpus of law sets out the proper standards to be applied to the handling of grievances, discipline and matters detrimental to the rights of individual employees.

6.       The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

·       That employee grievances are fairly examined and processed

·       That details of any allegations or complaints are put to the employee concerned

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

7.       These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

8.       As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor. This could be done on an informal or private basis.

9.       The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.

10.   Disciplinary action may include:

·       An oral warning

·       A written warning

·       A final written warning

·       Suspension without pay

·       Transfer to another task, or section of the enterprise

·       Demotion

·       Some other appropriate disciplinary action short of dismissal

·       Dismissal.

11.   Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage. In such instances the procedures set out at paragraph 6 hereof should be complied with.

12.   An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.

13.   Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied.

14.   Warnings should be removed from an employee's record after a specified period and the employee advised accordingly. The operation of a good grievance and disciplinary procedure requires the maintenance of adequate records. As already stated, it also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to their terms.

The allegation put forward by the complainant was that the procedure was biased.  However, the code does not indicate that an investigation must be carried out by an independent person, this would place too onerous a burden upon smaller companies.  However, it does indicate that the issues should be fairly examined.  By his actions in destroying the diaries, the complainant ensured that matters could not be considered in a fair manner.  The diaries might have exonerated the complainant or indeed may have provided a damning account of his activities; the point is that we will never know.  The complainant insists on being dealt with fairly but in not dealing fairly with the respondent.

The case largely revolves around a clause in an employment contract that was provided to the complainant.  The clause referred to operating other businesses. The complainant stated that he refused to sign the contract as presented to him.  This was not specifically denied by the respondent.  The complainant confirmed that they had discussions on the issue.  Although the written contract was not signed by the complainant, he was employed under some sort of a contract, a verbal contract if nothing else.  He was explicitly aware of what was expected of him, he noted that he told the respondent about his new ventures and that he had a note of it in his diary.  However, he wilfully destroyed his diaries and did not provide them to the respondent when asked for them.  Having regard to all the circumstances I do not accept the complainant’s version of events, if that was the case, then why destroy the diaries, when they contained evidence that would support his contention.

The complainant suggested that his business was not in competition with the respondent’s business.  However, given that the respondent’s business is running a private secondary school for 5th and 6th year students and the running of a grind school are similar enough, I consider that a reasonable employer might conclude that they were set up in competition to one another.

The complainant submitted that he told the respondent of his plans verbally for a grind school on a different premises.  Given that he has not contested destroying evidence that was sought as part of the investigation, his credibility is somewhat limited.  I am not persuaded by his account of a verbal reference to the employer of his plans.

The respondent cited Bank of Ireland v Reilly regarding the reasonableness of the employer’s conduct.  It also made reference to the British Midland case cited in Redmond on Dismissal Law at 16.05 “Gross misconduct generally presupposes intentional and deliberate misconduct … the focus is on the damage to the relationship between the parties.  Dishonesty and other deliberate action which poison the relationship will obviously fall into the gross misconduct category… “

The complainant also suggested that the dismissal was an over-reaction.  However, I note that the complainant was informed at the outset of the investigation that dismissal was a possible option.  It was outlined to him how this might come about.

I am satisfied that the disciplinary procedures largely conform to the code of practice.  To my mind, the act of destroying evidence entirely undermines the complainant’s credibility and brings the option of dismissal within the range of options that a reasonable employer might consider.  His outright failure to provide information regarding his income further undermines his credibility.

Having considered all the written and oral evidence submitted, I consider that a reasonable employer would have concluded that the complainant was operating a business in competition to the respondents.  I also consider that a reasonable employer would have considered various disciplinary sanctions, up to an including dismissal, and given that the complainant had admitted to destroying documentation required for the investigation, I find that a reasonable employer would have concluded that dismissal was within a band of reasonable responses and that dismissal as in this case amounted to an appropriate sanction. 

Accordingly, I find that the dismissal was not unfair.

Having regard to all the oral and written evidence presented in relation to this matter, my decision is that the complainant was not unfairly dismissed.

Unfair dismissal – reasonable band of disciplinary actions – destruction of documentation – dismissal was reasonable – no unfair dismissal