Complainant

Respondent

Parties

Jason  Franzoni

Hibernia Homecare Ltd Home Care

Representatives

Mary Duffy-King SIPTU (Retired)

Mary Seery Kearney , BL

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-00069058-001

05/02/2025

The Complainant started his employment as a Health Care Assistant with the Respondent on 9 September 2021 and earned an average of €620 per week. He stated that his employment was unfairly terminated on 31 January 2025 when the Respondent dismissed him because he refused to sign a new contract of employment when his role was due to transfer to a new employer under TUPE Regulations.

The Respondent denied the allegation and instead claimed that the Complainant refused to transfer his employment, and thereby resigned his employment

In his complaint form, the Complainant outlined that on 31 October 2024 he received an email regarding TUPE.  He stated that the directors of Hibernia Homecare Ltd were not in agreement and that the transfer to the new entity was to be completed on 2nd December. He outlined that Hibernia Home Care held a meeting on 5 November and that people were unhappy and left the meeting.  He outlined that a further meeting took place on 26 November 2024 and that Hibernia Home Care brought in a mediator.  As a result of that meeting the timeline for the transfer was extended to 16 December.

The Complainant outlined that there were no answers given to issues raised and that Hibernia Home Care gave a final extension to 27 January 2025.  He stated that during that time he received no further information until 31 January when he received an email at 13:20 which stated, “sign contract by 16.00 pm or be dismissed.”   The Complainant outlined that he was rostered to work till 19:00pm and was allowed to do this but at 16:01 he received notice saying that his employment ceased.

The Complainant outlined that he was treated very unfairly at the meeting on the 27th, that they never mentioned a new contract for 31st January. He also stated that a meeting was due to take place on 28 January but was cancelled and that he had no further contact until he received the email on 31 January.

Representations on behalf of the Complainant at Hearing

Ms. King stated that the Complainant was employed as a Health Care Assistant with the Respondent from 9 September 2021 until he was dismissed on 31 January 2025. She stated that it was difficult to recruit carers, but most especially male carers.

She stated that his wife was one of 3 Directors of the Respondent and that she was in dispute with the other directors and that this dispute was the subject of separate legal proceedings.

Ms. King outlined that the employees were made aware of a transfer of undertakings on 31 October 2025 and that a further meeting took place on 5 November 2025 where, it was accepted the Complainant informed the Respondent that he would not be transferring. She stated that he was unhappy with the proposals, that he had been recruited to the company by his wife and had been issued with a contract of employment by her and did not wish to sign a new contract of employment issued by anyone else. She stated that he wished to retain the contract given by his wife as he wanted to be seen to support her and as a sign of solidarity.  She further stated that there was no valid economic or technical reason for him to sign a new contract.

Ms. King acknowledged that he was made aware that there would be no changes to his terms and conditions of employment and she drew attention to the memo of 31 October from the Respondent where it advised that employees who transfer “will however, retain their current contracts of employment”

 Ms. King outlined that the original timeline for the transfer was scheduled for 2 December 2024, that the timeline was extended twice, and finally was extended to 31 January 2025.

She outlined that on 31 January 2025 he received a cessation of employment letter at 4 pm.  She noted that he received a phone call at 5 pm that day to attend a client and that his log in/out system had to be reinstated.  She noted that when that client visit was complete, he was again shut out of the system.

Ms. King stated that the events took him by surprise, as many of the staff believed that nothing would happen until the issue at director level was resolved but she acknowledged that because of his family relationship he understood that things were more serious.

She stated that the Complainant believed the Respondent had used the opportunity of the transfer as an orchestrated attempt to remove family and friends of his wife from the new company.

Ms. King noted that, as at the date of hearing, the Complainant was still out of work, despite having made over 200 applications for work and that he believed he had been blacklisted.

She stated that the Complainant understood that there was no fundamental requirement for him to sign a new contract but that the Respondent had ultimately deemed it as wholly necessary in order to be retained employment.

Closing Remarks on behalf of the Complainant

Ms. King summarised the Complainant position as follows:

·         That the Complainant had acknowledged that he had said, at the meeting in November that he would not be transferring but that this statement was made in a heated way and out of loyalty to his wife

·         That the Complainant was not given any other option other than signing the new contract and that it was clear from case law opened that this was not a requirement of TUPE

·         That the Complainant never intended to leave his job and that he needed that job as it was essential to support the family, particularly in circumstances where his wife was no longer part of the business

·         That information and warnings given by Mr. Wallace and Mr. Dunne were inappropriate, wrong and misleading and resulted in a situation where the Complainant did not believe that he would lose his job.

·         That the Respondent had no actual direct contact with the Complainant in relation to the transfer other than at general meetings.  She noted that the Respondent did not directly correspond with the Complainant and stated that the principles of natural justice had not been applied in this instance

Ms. King stated that it was incredible that the Complainant had applied for so many positions since the termination of his employment, and that despite his extensive experience and a shortage of male care workers, he had been unsuccessful in obtaining alternative employment.

In conclusion, Ms. King stated that the Complainant did not refuse to transfer at any time, that he had a right to continue in employment on his existing contract and that it was irrelevant to this matter who he was related to, that he has his own rights as an employee.  In all the circumstance of the case she asked that the Adjudication Officer find that the Complainant was unfairly dismissed.

Witness evidence – the Complainant

The Complainant gave evidence that he attended the first meeting called by the Respondent on 5th November and that at that meeting Mr. Wallace advised staff bout the transfer arrangements and assured them that everything would remain the same.  The Complainant stated that he had been through a previous transfer with another company and had not been required to sign a new contract.  He confirmed that he had nover been advised before or during this process that he need to sign a contract in order to confirm his position in relation to the transfer.

The Complainant gave evidence that at the meeting on 26 November which was attended by Mr. Dunne, Mr. Dunne had stated that while the directors were in dispute that staff “could not be sacked or let go.”

He outlined that staff had never been told the full details of the reason for the transfer but that they were advised that a new company was formed and that the sister company was being merged, he stated that he understood that one company was operating in the northside of the city, while the other operated on the southside.

The Complainant stated that there were legal discussion on-going in relation to his wife’s position and that it placed him in an awkard position.  He stated that during that time he was not involved in the Court porceedings but was there as a support to her , while he continued to attend to his clients.

The Complainant confirmed that he received a phone call from the Co-Ordinator after he had seen the client, after his employment had been terminated but that the purpose of that call was to advise him to drop back the company car.  He stated that he had 2 clients to see after he had received the termination letter and that his contract ended at 9 pm.

The Complainant gave evidence that he never believed his employment would end, that he didn’t want to sign a new contract out of loyalty to his wife and that he did not believe this would pose any problem as he had not been required to do so during a previous transfer with another company.

Cross examination

Under cross examination the Complainant stated that he never said he was not going to transfer, but that he had asked “what happens if a staff member does not transfer”.  He accepted that he had walked out of the meeting on 5 November but he stated that he did not lead staff out, that he had walked out alone but that others may have followed.  He stated that he had a client visit scheduled.

The Complainant accepted that he was aware of issues from the dispute relating to his wife and he was vaguely aware that the meeting on 5 November was in relation to the transfer. He accepted that the letter of 31 October was “pretty clear” but that he was aware of “legal stuff in the background”.  He stated that he wanted to support his wife and that he wasn’t getting into TUPE and that, in any event, he was told by Mr. Dunne that the transfer wouldn’t happen until the director issue was resolved.

Ms. Seery put it to the Complainant that he had walked out saying “I won’t be f….ing transferring” to which the Complainant responded, “That’s a lie”.  The Complainant stated that he said “on that note I have to go to a client” and that he then walked out.

The Complainant confirmed that he had never said he was ok to transfer or engaged in a grievance procedure but that the next meeting was with Mr. Dunne and that Mr. Dunne had said that nothing would happen until the director level matters were sorted.  He reiterated that there was no requirement to sign a new contract during a previous transfer.

The Complainant confirmed that he would have signed the contract but that he was locked out of the system but he confirmed that he did not make contact with the company.  He also confirmed that he did not take any action to correct the Respondent understanding once he received the cessation letter.

Ms. Seery put it to the Complainant that he was “hoping to make it impossible for the transfer to proceed”.  The Complainant made no response.  Ms. Seery repeated the question and the Complainant then replied that where he had worked before he wasn’t required to sign a contract.

In relation to reading the contract to verify that there was no change to terms of employment the Complainant stated that he probably did read it but that he had poor eyesight.  Ms. Seery put it to him that there was no change and that he had no reason not to sign and the Complainant confirmed that was the case. The Complainant accepted that the only difference was the legal entity that would be the employer and that he wife was not a director and he again confirmed that he did not wish to sign out of loyalty to his wife.

In relation to 5 November meeting the Complainant gave evidence that he had not raised his voice (as in roaring) or used bad language, that he walked out and that others followed.  He stated that he had a client to see and that he had asked the receptionist for gloves and that he did not engage in conversation with others who also left the meeting.  He confirmed that at no time, did the Respondent or anyone of its’ behalf make direct/individual contact with him. He stated that he was never asked the question if he was agreeable to transfer.

The Respondent submitted that Hibernia Home Care Ltd is the Transferor and is a company incorporated in 2021 to provide home support services to older people and providing those services predominantly under contract with the HSE. It is a legal economic entity under the provisions of S.I. No. 131 of 2003 and the Transferor in the context of this matter.

Hibernia Home Care Group Ltd as “the Transferee” in this matter is the parent company, holding an 80% shareholding in the Transferor, and was incorporated in 2022 to carry on the business of providing home support services, also under contract to the HSE.

The Transferor operated under Service Level Agreements jointly with the Transferee in providing services to the HSE until March 2024. The Transferor lacked sufficient capacity and skills within its resources to meet the HSE’s governance, clinical, financial, and technical requirements. Previously, the Transferor had fulfilled the Service Level Agreements for the HSE by working in unison with the Transferee and presenting as a single entity.

The HSE introduced several iterations of its Service Level Agreement requirements and criteria. Its latest stipulation is that a joint operation, such as the one previously conducted by the Transferor, is no longer permissible unless each entity independently meets a strict and onerous set of criteria that the Transferor, as a standalone entity, was unable to meet.

The Transferee successfully obtained HSE Tender Authorisation in March 2024 and executed a Part 1 Service Agreement on 2 April 2024, having met all governance, clinical, financial, and technical requirements through its internal resources. The HSE Tender terms expressly prohibited subcontracting, requiring authorised providers to deliver services exclusively through their own direct employees.

The Transfer Requirement

To ensure continuity of service for service users and to comply with HSE contractual obligations, a transfer of undertaking became necessary under Regulation 3 of S.I. 131/2003. The Directors and Shareholders of the Transferee decided that the employees of the Transferor would be best suited to transfer under the TUPE process because the work previously performed by the Transferor under a Service Level Agreement was now contracted to the Transferee under the National Authorisation Scheme.

A decision was made to inform all employees of the intended transfer, and formal notice was issued on 31 October 2024 in accordance with Regulation 7 of S.I. 131/2003, proposing a transfer date of 2 December 2024.

The Transferor and Transferee then commenced a detailed consultation process, beginning with the first meeting on 5 November 2024. At this meeting, David Wallace, Managing Director, expressly informed employees that they had a choice regarding whether they wished to transfer. He stated that the company hoped they would all transfer, but that refusing to do so would, in law, constitute a resignation. The Complainant was among a small number of employees at this meeting who expressly objected to the transfer.

Because of the objections raised, the Transferor engaged Mr Sean Dunne (M.I.I. accredited mediator) to facilitate further consultations and oversee the process as a demonstration of both companies’ commitment to addressing employee concerns.

Mr. Dunne scheduled and conducted several consultation meetings commencing with a meeting on 26 November 2024.  At that meeting an opportunity was provided for staff to raise grievances or concerns. Mr Dunne adjourned the meeting to engage with Directors about those issues and subsequently reconvened the meeting to present their responses. A further meeting was scheduled for 5 December 2024, attended by Mr Dunne. However, none of the employees who had requested time off to attend—including the Complainant—were present. Another meeting took place on 22 January 2025 between Mr Dunne and the employees who continued to object, including the Complainant. An additional meeting was offered, but none of the objecting employees, including the Complainant, made themselves available.

The transfer deadline was extended three times to avoid any allegation that the process was rushed and to maximise the opportunity for conciliation. The original date of 2 December 2024, notified to staff on 31 October, was extended to 16 December 2024, then to 27 January 2025, and finally to 31 January 2025, two months after the original proposed date.

New contracts were issued to all staff prior to the transfer date, naming the Transferee as employer and reflecting the same terms and conditions previously held with the Transferor. These were sent via DocuSign, with reminders issued.

The Complainant was among the employees who raised new grievances and cited them as grounds for objecting to the transfer.

A total of 22 employees out of a workforce of 120 left employment on the day of the transfer due to refusal to transfer.

On 31 January 2025, affected employees were sent their contracts again and urged to sign them, with assurances that their terms and conditions would remain unchanged. At 3:30 pm, an SMS message instructed them to check their email and take urgent action. At 4 pm, having exhausted all avenues, the company proceeded with the transfer and informed those who continued to object—including the Complainant—that their employment would end at close of business that day. They were removed from rosters, and the management team began rescheduling essential care visits for elderly and vulnerable service users.

All staff who refused to transfer were issued a cessation letter. It clearly states the reason for the termination and offers the Complainant an opportunity to reconsider. The company believed many employees might reconsider once emotions settled and therefore encouraged them to reapply or accept the transfer to avoid job loss.

Throughout that night, the weekend, and the Public Holiday that followed, Directors remained available to staff. Of the 20 employees whose employment ended, 11 sought to take up employment with the Transferee and continued uninterrupted in the roles originally offered. They retained their existing terms and conditions, including continuity of service.

The Complainant is one of a small group of nine employees who did not participate in any engagement opportunities, did not acknowledge the new contract, and did not re-engage with the company after employment ceased.

Representations at hearing

Ms. Seery outlined that it was denied by the Respondent that the Complainant had been dismissed and stated that the Complainant had, in fact, resigned his position.  In these circumstances the claim of an unfair dismissal was not conceded.  She drew attention to an operative court order which restrained the parties to the High Court proceedings from which restrained the Respondent in relation to information it could provide to aspersions raised by the Complainant.

Ms. Seery noted that the instant case was one of 9 cases taken against the Respondent in relation to termination of employment arising from the circumstances of the transfer.  She stated that the narrative was continually changing and fluctuating and that there had been a tendency to overstate matters and so she considered there to be an importance to the taking of an oath prior to giving evidence.

She confirmed the reasons which gave rise to the transfer as set out in the Respondent submission and provided a detailed description of the obligations on the Respondent arising from the terms of the HSE agreement and she noted that the validity of the TUPE was not before this hearing.

Ms. Seery advised that the wife of the Complainant was a Director of the Transferor and that there had been a dispute at director level within that company.  She stated that the Complainant held a contract of employment with the Transferor.

In relation to the transfer process Ms. Seery advised that the TUP process began in October 2024 when all employees were notified in writing of the proposed transfer and that this correspondence set out the rationale for the transfer and provided confirmation of the date on which the transfer would occur.  She confirmed that a consultation meeting with staff was held on 5 November 2024 and that a substantial number of employees attended.  She noted that Mr. Wallace was present and that at the meeting the Complainant asked what would happen if staff refused to transfer.  She stated that the Complainant stated that “he wouldn’t be f…..ing transferring” and that he stood up and led a group out of the meeting.  Ms. Seery stated that over the following 3 months the Complainant never retracted that comment.

Ms. Seery outlined that after the meeting the Respondent decided to bring in an external facilitator and so, Mr. Dunne was engaged.  She advised that he met with staff on 26 November, that it was a very difficult meeting and that as a result it was agreed to extend the transfer date.  She stated that new contracts were issued and that approximately 80 staff out of 120 signed and returned the new contract.

Ms. Seery noted that the Complainant had the right and the opportunity to engage with Mr. Dunne or he could have raised concerns within the internal procedure but that he did not engage in any way.  She also noted that he did not engage with the staff representative.  She noted that the date of transfer was again extended until late January 2025 and that during that time Mr. Dunne and Ms. Bradshaw were in constant contact with the staff representative, that staff were granted time off to attend meetings but never attended.

Ms. Seery drew attention to the initial letter, the FAQ document which, in “everyday language” confirmed that all terms and conditions would be exactly the same following transfer.  She stated that everything was identical and that the only difference would be that the Complainant’s wife would not be a director of the new entity.

Ms. Seery stated that the transfer was conducted with utmost concern, diligence and care.  She noted that a final meeting was scheduled to take place in January but had to be postponed due to a storm and she noted that the transfer was set for 31 January.  She advised that staff who had not signed the contract were sent an SMS.  She stated that even after the cessation letter had issued that a number of staff did reapply for their jobs and that this was facilitated on the same terms and conditions as they had previously enjoyed.

Ms. Seery confirmed that only 9 staff ultimately did not take up employment with the Respondent and that these were individuals who were all within the social circle of the director.  She stated that the Complainant’s wife had access to legal advice and so the Complainant had access to relevant information to understand the process.

She stated that the Complainant had an obligation to engage in the transfer arrangements to engage with the grievance procedure, to engage with the process offered by the WRC and to retract his statement that he would not transfer.  In circumstances where he pursued none of those actions it was reasonable for the Respondent to accept his statement that he was not transferring, and he therefore ceased his own employment.

Ms. Seery suggested that the reason the Complainant did not pursue the above options was that there was a narrative “going around” that if the transfer could not go ahead until the issues with the director were resolved.  She stated that the Complainant need to signal his acquiescence to the transfer but that he never did.  She further noted that the Complainant had produced no evidence of having applied for 200 jobs, that the Respondent had never received a reference request and that it was outrageous and absurd to suggest that the Respondent had blacklisted the Complainant.  She stated that the opposite was the case and that the Respondent had done everything possible to stop the Complainant from making a mistake.

Witness evidence – Mr. Wallace

Mr. Wallace confirmed his tenure and his role with the Respondent and he confirmed the relationship between the Transferor and the Transferee, consistent with that outlined in the Respondent submission.

Mr. Wallace gave evidence to confirm the relationship between both companies and the HSE, and the changes required in governance and financial management under the service level agreement which culminated in the requirement for the transfer of services and staff.

Mr. Wallace confirmed that he had prepared the letter of 31 October to all staff on behalf of the Respondent and that the purpose of that letter was to put staff on notice of the tranfer, to provide them with details of the transfer arrangements and to commence the required consultation process.  He confirmed that the contract issued to staff in and around the first week in November prior to the first consultation meeting which took place on 5 November. 

He gave evidence that at that meeting he went through the letter and answered questions and that he had observed staff handing out flash cards.  He stated that at the meeting the Complainant as “what happens if we refuse to sign?” and that he replied that “if you refuse a transfer where terms are unchanged you effectively resign”.  Mr. Wallace gave evidence that at that point the Complainant walked out.  He stated that the temperature in the room was raised and that others left with him.  He confirmed that he answered a few more questions before the meeting concluded.

Mr. Wallace confirmed that he was “pretty certain” that the Complainant had said “I’m not f…ing signing” and that he was angry and upset. He confirmed that the flash cards appeared to be circulated by the group who left the room but that he could not recall the Complainant specifically being involved in distributing them.

Mr. Wallace gave evidence that after the meeting he contacted Mr. Dunne and engaged him in order to ensure that the consultation was done properly.  He stated that he wanted to ensure compliance with the required process but also he wanted to ensure that staff concerns were fully addressed.

He stated that mr. Dunne held a meeting on 26 November and that at that meeting concerns were raised about the timeline and there being insufficient time to properly address concerns.  He stated that Mr. Dunne adjourned the meeting and engaged with the Respondent to discuss an extension of the timeline. He stated that circa 80 people had already signed the new contract after the first meeting.  He stated that the Complainant had presented, based on what he did and said, as not being interested in a transfer, and that thereafter he did nothing to change that position.

Mr. Wallace gave evidence that another meeting was scheduled for 5 December, that he and Mr. Dunne attended but that there were no attendees.  He stated that this was very concerning as staff had sought and been granted time off to attend.

He stated that at the meeting on 26 November Mr. Dunne ahd soiught nominations for a staff representative and that Ms. Bradshaw as nominated.  He stated that, as far as he was aware, she was part of the group who were “not fully aligned” and that she had not signed her contract.

He stated that when preparing the contracts he had been exceptionally carful to ensure that all terms of employment were correctly reflected and that the only changes made related to updated legislation. 

Mr. Wallace gave evidence that when there was still no engagement in January 2025 that further correspondence was issued to relevant staff but that the Complainant made no response.  He stated that the contract had been sent through DocuSign and was sent as a pdf attached to an email and offered in hard copy.  He stated that he was trying to mainatain a balance between achieving the HSE standard and the risk of an employee inadvertently resigning.  He stated that he did not want to loose existing employees and have clients upset.  He stated that the Complainant was very highly regarded, that he would have been happy to address any issues and that what he had wanted was “to get everyone across the line”.

He stated that at 3 pm on 31 January he sent a text message to those who had not signed a contract and that it stated that “to preserve and protect your employment” and directed the employees to check their emails and respond.  He stated that unfortunately a small did not engage.  He stated that the issue couldn’t go on , that the transfer had to go ahead and so a cessation letter was issued to each individual who had not consented to transfer.

Cross examination of Mr. Wallace

Ms. King asked Mr. Wallace if the Complainant had ever formally advised of his intention to not transfer.  Mr. Wallace responded that “this was his statement to me at the formal consultation meeting”.  Ms. King then put it to Mr. Wallace that he had taken that one statement as a clear indication that the Complainant was not going to transfer.  Mr. Wallace responded that he was a reasonable person, that he had provided a number of consultation opportunities and opportunities to sign the contract and that in the absence of any engagement or response from the Complainant he could “only take that one response.”

Ms. King put it to Mr. Wallace that was why it was incumbent on him to make direct contact with the Complainant.  Mr. Wallace responded that was why he had provided the opportunities for consultation, had provided an independent mediator and had agreed to use the WRC and had sought to engage through the staff representative, Ms. Bradshaw.  He stated that he did not know what else he could have done.

Ms. Kind stated that it was incumbent on Mr. Wallace as the employer to establish a clear decision and she stated that the Respondent could not have been clear in relation to the Complainant position.  Mr. Wallace replied that the employees were clear but that they had used their silence to create ambiguity.

Mr. Wallace confirmed that he was aware of the Complainants situation and his personal relationship and he confirmed that it was essential that staff signed the new contract, not necessarily as a requirement of TUPE, but was part of the standards set in the SLA with the HSE.

Ms. Kind asked Mr. Wallace why the orifinal memo of 31 October regarding TUPE informed staff that their contract would carry over.  Mr. Wallace gave evidence that this was meant to relate to the contractual terms and that over the course of the consultation process this was made clear.

Witness evidence – Mr. Sean Dunne

Mr. Dunne gave evidence that he was engaged by the Respondent to give advice in relation to the transfer regulations and thereafter to facilitate the consultation process.  He stated that the Respondent had sought further support  and that his role was to provide an impartial facilitative approach.

Mr. Dunne advised that at the meeting of 26 November he met with staff but that there was a significant level of aggression at that meeting.  He drew attention to his detailed written account which was appended to the Respondent submission.  He stated that there was a basic trust issue underlying the issues being raised by staff and that staff indicated that matters were being rushed.  He also stated that concerns were raised in relation to the directors dispute. 

Mr. Dunne gave evidence that he took a break to consult with the 2 directors and that following the break he confirmed that the timeline for the transfer was extended.

Mr. Dunne stated that he “absolutely and categorically did not say that nothing would happen until the directors’ dispute was resolved.  He stated that at all times he made it clear that the transfer and the directors dispute were two separate matters and that the directors dispute was not something that he could address in the IR context.  He advised that a staff representative was put forward, i.e. Ms. Bradshaw.

Mr. Dunne gave evidence that he held a further meeting for staff on 5 December but that nobody attended.  He stated that he spoke to the staff representative who advised him that there was an issue of trust regarding his independence, in circumstances where he had been engaged by the Respondent.  He stated that he then suggested using the WRC conciliation services in order to give assurance regarding impartiality and that he made application to the WRC for support.  He further stated that a second extension was then granted to 27 January 2025 in order to allow time for engagement with the WRC.

Mr. Dune stated that by 22 January there had been no engagement from staff with the WRC. He stated that there was a further staff meeting scheduled for that day, that two more staff representatives were elected.  He confirmed that there was a lot of discussion about signing the contract and that he clarified the need to give consent to the transfer. He stated that staff didn’t want to leave the old company and that he explained to them about the new company and the fact that the old company would not be in a financial position to maintain their employment.

Mr. Dunne advised the hearing that he spent a lot of time on the phone on 30 and 31 January resolving issues and that thee were a small number of issues that had to be addressed through the grievance procedure the following week.

Mr. Dunne gave evidence that during his consultation meetings he had kept his language simple and that he had advised staff that “it’s not all about signing the contract, it’s about moving from one employer to the other.”  He stated that he had clarified that staff could not stay with the old company, that it would have no means to pay them and that effectively they would be resigning.

Mr. Dunne advised that the contracts were identical, that staff had been provided with FAQ’s but that some staff simply did not want to leave the old employer.  He stated that the Complainant was one of those and that he never apologised for his original statement and he never made any contact with Mr. Dunne.  He stated that in his view the Respondent had conducted a fully complaint TUPE and that this case was not a dismissal.

Cross examination – Mr. Dunne

Under cross examination, Mr. Dunne was again emphatic that he did not say to staff that nothing would happen in relation to the transfer until the directors dispute was resolved.

Ms. King asked Mr. Dunne if staff who originally signed their contract did so out of fear or because they fully understood everything.  Mr. Dunne advised that after the first meeting, at which he was not present, approximately 80 staff signed their contracts and that because this occurred before he commenced his engagements, he had no contact with those staff.

Ms. King then asked him about the staff who had left that meeting.  Mr. Dunne confirmed that at the first meeting which he convened he explained to staff that “the contract was an issue we could get over” and that there was “nothing in the Act to require them to sign the contract.”

Ms. King asked about the statement the Complainant was alleged to have made at the first meeting and Mr. Dunne again confirmed that he was not present at that meeting. Mr. Dunne confirmed that at the second meeting he was asked the question by some staff  in relation to what would happen if an employee refused to sign the contract.  He confirmed that he had said that this was a minor issue and “one we want to get over”.  He stated that the Complainant did not ask him any questions.

Ms. Seary asked Mr. Dunne to clarify what he had meant by “getting over” and Mr. Dunne confirmed that “if they gave consent to moving to the new employer”, but he added that some staff didn’t want to leave the old employer, so their issue was not about signing the contract.

In conducting my investigation, I have given careful consideration to  all submissions presented to me by the parties, as well as evidence and information provided at hearing by the parties and their representatives. 

The Law:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

Section 6(7) of the Act states as follows:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer, considers it appropriate to do so—

(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 referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

I noted the Complainant position that he was unfairly dismissed from his employment with the Respondent on 31 January 2025 and that the reason provided by the Respondent for that dismissal was that he had not signed the new contract of employment.

I noted the Respondent alternative position which was that the Complainant had not acquiesced to the transfer and so, had terminated his own employment.

I noted that the Respondent placed considerable emphasis on a comment which the Complainant was alleged to have made at the first staff consultation meeting held on 5 November 2024.  While there was some dispute between the parties as to exactly what was said by the Complainant I was in no doubt that the Complainant had indicated that he would not be transferring to the new company and that he then walked out of the meeting.  I noted also that the meeting took place almost three months before the ultimate transfer date.  The Respondent argued that, because he did not subsequently sign the new contract nor withdraw or alter this position before the transfer date of 31 January 2025, his statement in the general meeting of 5 November 2024 effectively constituted a resignation.

However, it is well established at the WRC that a resignation must be clear, unambiguous, and unequivocal. This principle was recently reaffirmed in Anatoliy Ludchenko v Harp Renewables Limited (ADJ-00039137), where, in finding that the complainant had not resigned, the Adjudication Officer stated: “It is up to the employer to confirm a resignation, which must be clear and unambiguous. The onus is on the employer to take such steps as necessary to establish that there was a genuine resignation, for example, requesting the employee to confirm in writing that they wish to resign.”

If the Respondent genuinely believed that the Complainant intended to resign or refuse to transfer, it would have been reasonable and appropriate for them to write to him seeking clarification of his intentions, as outlined in ADJ-00039137. I am at a loss to understand why the Respondent did not send even a single email asking the Complainant to clarify his position in relation to the transfer. Instead, the only correspondence he received was a letter issued on the day of the transfer asserting that “the cessation of employment was brought about by reason of your not consenting to transfer following a Transfer of Undertakings from Hibernia Home Care Ltd to Hibernia Home Care Group Ltd.”

The Respondent argued that it had issued a new contract and made a number of attempts to remind staff to sign that contract.  The Respondent made much of the requirement to sign that contract and made a directly equated signing the contract with confirming agreement to transfer.  I noted that the Complainant had been present at the meeting on 26 November where he heard Mr. Dune give advice, that there was no legal requirement to sign the contract and he had also received the original memo of 31 October which clearly stated that employees would “retain their current contracts of employment”

Under TUPE, a transferee is not entitled to insist that an employee sign a new contract. The Complainant was fully entitled to rely on the terms of his existing contract. His refusal to sign a new contract did not amount to a resignation, nor did it provide any fair or lawful basis for termination. The Respondent was not entitled to rely on a throw away comment made in the heat of a general meeting as a basis for termination without first seeking written clarification.  Mr. Dunne, quite rightly,  had advised that what matter was acquiescence to transfer and the Respondent had never sought clarification from the Complainant in that regard.

I do acknowledge that the Respondent acted fairly, reasonably and purposefully in relation to their general consultation but that did not remove their obligation to seek clarification from the Complainant when he had not participated in some of the general meetings and had not signed the contract.

Having considered all of the foregoing, I find that the Complainant did not resign, and that the Respondent’s treatment of him as having resigned had no factual or legal foundation. I find that he was, instead, dismissed, and that dismissal was unfair.

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (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,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

In all the circumstance  find that the Complainant was unfairly dismissed for the reasons set out above and so I decide that this complaint is well founded.

Redress/Remedy

In deciding on the appropriate remedy, I must consider reinstatement of the Complainant, in circumstances where he continues to seek employment. I do so, notwithstanding the Complainant position that he did not wish to be re-instated.

In making this decision, I have regard to the findings of the Supreme Court in An Bord Banistiochta, Gaelscoil Moshiolog v The Labour Court, where it was stated that “the remedy of reinstatement is exceptional in nature,involving as it does the imposition of a contractual relationship which is not only personal, but involves a high level of mutual trust and confidence, on an unwilling party…. It is wrong to view reinstatement simply as punishment for wrongdoing on the part of the employer”

In light of the above, I am satisfied, based on the evidence presented to me, that the trust and confidence required for the resumption of an employment relationship between the parties no longer exists.  Accordingly, I have decided to make an award of compensation.

The Complainant was employed by the Respondent earning €620 per week and was dismissed from his employment on 31 January 2025. In assessing financial loss arising from the dismissal, I have taken account of the significant shortage of health care assistants in the sector.  I have also taken account of the Complainant position that he had made application for in excess of 200 positions without success.  I noted that the Complainant did not provide any supporting documentation to back up this assertion, and, quite frankly without such supporting documentation, I do not find this to be credible. 

Having considered the evidence, I accept that, given the undisputed shortage of health care assistants, the Complainant might reasonably have been expected to obtain alternative employment within the nine-month period between his dismissal and the hearing. In these circumstances, it would not be just or equitable to award the Complainant the entirety of the financial loss attributable to this dismissal from 31 January 2025 to the date of the hearing or to include in any award an element of future loss after the hearing.

Having regard to all of the foregoing, and while I accept the Respondent’s evidence that the Complainant should reasonably have secured alternative employment prior to the hearing, consideration of all the circumstances—including the unreasonableness of the dismissal and the Respondent’s complete failure to follow fair procedures—I must conclude that an award of €8,060 namely 13 weeks’ pay, represents a just and equitable measure of compensation.

Unfair dismissal, TUPE