Complainant

Respondent

Parties

Ciara  Donlon

Theya Healthcare Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00069118-001

07/02/2025

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

CA-00069118-002

07/02/2025

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

CA-00069118-003

07/02/2025

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

CA-00069118-004

07/02/2025

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

CA-00069118-005

07/02/2025

The Complainant’s employment began on 1 August 2023 and ended on 23 September 2024. She stated that she did not receive a written statement of her terms and conditions of employment. She also alleged that she was not paid what she was owed by the Respondent and that she had no choice but to terminate her employment as a result.

CA-00069118-001:

The Complainant stated that she did not receive payment for the last month that she worked with the Respondent. The payment was due on 26 September 2024 and she was told on or around 20 September 2024 that they would not be paying her this amount.

CA-00069118-002:

The Complainant stated that she was not paid in accordance with the verbal terms of her contract of employment. Initially, she had been informed that her annual remuneration would be €110,000. However, towards the end of 2023, the Respondent clarified that the salary would be structured as €90,000 per annum, with an additional €20,000 in fixed expenses to be paid “off the books.”

In total, the Complainant received €37,148 over the five-month period in 2023. This figure included €8,333 in expenses, which corresponded to the off-the-books arrangement described by the Respondent. Thus there was a shortfall in the amounts owed to her in respect of 2023 and over the course of 2024.

From February 2024 onwards, the Complainant—who held the positions of CEO and Director of Theya Healthcare Ltd—stated that she repeatedly requested access to the company’s accounts. She stated that access to these records would have enabled her to bring a timely claim before the Workplace Relations Commission (WRC) within the six-month statutory window. However, due to the Respondent’s failure to provide financial transparency, the Complainant stated that she was unable to submit the claim within that timeframe.

The Complainant stated that the delay in submitting the complaint within the statutory six months period arose directly from the Respondent’s failure to make the relevant financial information available while she was in post.

CA-00069118-003:

The Complainant stated that she did not receive a statement of her written terms and conditions of employment.

CA-00069118-004:

The Complainant stated that she founded Theya Healthcare in 2015 to support breast cancer patients in their recovery and improve their well-being. She stated that it was profitable at the time it entered liquidation in January 2023. The liquidation was triggered by an aggressive takeover attempt by two angel investors.

The day after the creditors’ meeting in late January 2023, the Complainant met the Gallagher family. Prior to the liquidation, the Gallaghers had expressed interest in becoming the company’s manufacturing partner, as they owned a medical garment factory. Following the liquidation, they acquired some of the company’s key assets—including the trademark, domain name, and social media handles—for €5,000. They then offered the Complainant the role of CEO of the newly formed entity, Theya Healthcare Ltd, with a 40% shareholding. The remaining 60% was held by Anne Sweeney, the wife of Joseph Gallagher. The Complainant began work on the new Theya in June 2023 and began receiving a salary from August 2023.

At the outset, the arrangement appeared promising. The Gallagher family owned three factories in China and assured the Complainant that Theya’s production would be prioritised. It was agreed that the Complainant would have full operational control as CEO, while the Gallagher family would remain hands-off. A salary of €90,000 per year plus expenses was agreed—an amount equivalent to the Complainant’s previous total compensation package of €110,000. When the Complainant requested a CEO contract, Mr Gallagher dismissed the need for one, stating that he himself did not have a contract as a director of Viecura, his primary company.

Despite these assurances, the commitment to prioritise Theya’s production was not fulfilled. Persistent delays in product delivery severely impacted customer relationships and disrupted the sales pipeline. As CEO, the Complainant was not permitted direct contact with the factories and had to rely solely on the Gallagher family to coordinate manufacturing. Unfortunately, this system proved unreliable, with questions around delays often met with vague or evasive responses. These difficulties made effective management of the business nearly impossible.

Until April 2024, the Complainant was the sole employee at the Respondent, managing all roles within the business. In April, a trained nurse was hired to support customer service and ecommerce fulfilment. Despite limited resources and a nonexistent marketing budget, both the Complainant and the trained nurse worked diligently to grow ecommerce sales through social media engagement.

From January 2024 onward, the Complainant repeatedly requested access to Theya’s financial accounts, but no visibility was provided. In April, Viecura appointed a Financial Director, who was also tasked with managing Theya’s finances. However, it wasn’t until mid-July that the Complainant was shown any financial information—during a meeting with the Respondent, a one-page cost summary was presented without any prior notice or opportunity for review. During that meeting, the Respondent raised concerns about high costs relative to sales and proposed terminating the trained nurse’s employment, stating she “does nothing anyway.” When the Complainant objected, the Respondent threatened to reduce the Complainant’s salary, despite knowing that she was the primary financial provider for her family. The Complainant requested postponing any cost-related decisions until the end of August, as several large deals were expected to close. Upon reviewing the cost figures later, the Complainant was unable to identify the origin of many listed expenses.

A follow-up meeting scheduled for late August in Waterford was cancelled. Tensions escalated in early September when the Complainant’s monthly expense reimbursement was not received as expected. When queried, the Financial Director disclosed that the Respondent had instructed her not to release the payment, citing a lack of funds. Although the Complainant considered resigning at that point, she chose to stay on out of loyalty to the customer base and due to upcoming commitments.

Despite the Respondent’s repeated claims that the company had no funds to pay the Complainant, the trained nurse continued to receive her salary on time and remains employed. Around this same period, the Complainant discovered that the company’s product liability insurance—essential for supplying the NHS and Bravissimo (a major UK lingerie retailer)—was not in place. This was despite earlier assurances from the Respondent in November 2023 that insurance had been arranged. When the Complainant raised concerns, the Respondent insisted the insurance was being handled, but by late August, it was still not secured. Given the nature of Theya’s medical-grade products, the lack of insurance posed a significant compliance and reputational risk. While not the sole factor, this issue contributed to the Complainant’s decision to step down.

Further concern arose when the Complainant was asked to sign off on the Respondent’s 2023 accounts as a Director, without ever having been given access to the supporting financial data. On September 23rd, after receiving confirmation that she would not be paid for that month (salary was normally due by the 26th), the Complainant submitted her formal resignation as both CEO and Director via email. Despite being told there were no funds to pay them, the trained nurse was paid in full.

Since the end of her employment, the Complainant has made significant efforts to secure new work. She stated that she contacted multiple recruitment agencies and explored roles through her professional network. After careful consideration, the Complainant decided to pursue a new entrepreneurial venture in a different sector.

CA-00069118-005:

The Complainant stated that she was not paid in accordance with her verbal contract of employment. Specifically, she stated that she had initially been told that she would receive €110,000 per annum, but was subsequently informed that the Respondent would pay her €90,000 and €20,000 fixed expenses (off the books). She stated that she was paid €55,792.04 for eight months in 2024, however, there was a shortfall of €17,541 in accordance with the Respondent's 2023 clarification in relation to her renumeration. She also clarified that she only received €5,000 by way of a salary payment in August instead of the €7,500 that should have been paid.

The Respondent did not attend the hearing to give evidence in relation to the complaints.

CA-00069118-001:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

“any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it is necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

Given the undisputed evidence of the Complainant, I am satisfied that she was not paid in the amount of €7,500, namely one month’s salary, in respect of her monthly salary for September 2024, which was due on 26 September 2024. Accordingly, I find that this complaint is well founded.

CA-00069118-002:

Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is a matter for the Complainant to establish that there is reasonable cause for the delay. The Complainant stated that she did not have access to the Respondent’s accounts despite her having made numerous requests for same since February 2024. She further stated that access to these records would have enabled her to bring a timely claim before the Workplace Relations Commission (WRC) within the six-month statutory window. However, due to the Respondent’s failure to provide financial transparency, the Complainant stated that she was unable to submit the claim within that timeframe.

In considering whether the Complainant has demonstrated "reasonable cause", I note that the seminal case in respect of this issue is Cementation Skanska (Formerly Kvaerner Cementation) v Carroll [2003] 14 ELR 81, where the Labour Court stated:

"In order for reasonable cause to be established, it must be shown that there were reasons which both explain the delay and afford an excuse for the delay." "The test is not one of fairness, nor is it a test of the gravity of the contravention complained of. Rather, it is whether there was something preventing the complainant from lodging the complaint in time."

I note that the Complainant stated that the delay was caused by the Respondent’s failure to provide access to financial records. However, this line of reasoning does not satisfy the legal test because the law requires that “the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. The Complainant however failed to explain why the absence of financial records precluded the timely lodging of the complaint.

Accordingly, there is no basis to extend the time limit under Section 41(8), and I therefore have no jurisdiction to hear any contravention of the Act outside of the six-month period from 8 August 2024 to 7 February 2025. All of the alleged contraventions within the cognisable period have been addressed in both CA-00069118-001 and CA-00069118-005.

CA-00069118-003:

The Law

The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1) of the TE(I)A also obligates an employer to provide employees with a statement in writing concerning other aspects of an employee’s terms and conditions of employment within two months of commencing employment. This provision was recently amended to indicate one month.

Findings:

The Complainant stated that she did not receive an agreed statement in writing of her general terms of employment within one month of commencing her role.

As the Respondent did not attend the hearing to dispute this, I find that this complaint is well founded.

CA-00069118-004:

Legal Framework:

Section 1 of the Unfair Dismissals Act 1977 defines “dismissal” to include constructive dismissal, which means:

" the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer."

Two primary tests are recognised by both the Workplace Relations Commission (WRC) and the Labour Court in assessing constructive dismissal:

• The contract test, which considers whether the employer's conduct amounted to a fundamental breach of contract; and
• The reasonableness test, assessing whether the employee acted reasonably in resigning.

In examining firstly whether the Respondent breached the contract test, I note that on or around 20 September 2024, the Complainant was informed by the Financial Director of the Respondent that her salary for that month would not be paid. This was confirmed to be on instruction from the Respondent, and the stated reason was a lack of available funds.

Despite this assertion, the Respondent continued to pay other staff members, including a trained nurse employed by the company. The Complainant, however, was not paid any salary for September and received no indication of when or whether payment would be made. She resigned a few days later.

The Complainant had an agreed annual salary of €90,000, and her remuneration was an essential part of the employment relationship. No lawful justification or mutual agreement existed to suspend or withhold payment. The unilateral failure to pay wages amounts to a fundamental repudiation of the contract by the Respondent and accordingly I find that the contract test was breached. I find therefore both that the Complainant’s resignation was justified and that she was constructively dismissed within the meaning of the Unfair Dismissals Acts

CA-00069118-005:

Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages as:

any sums payable to the employee by the employer in connection with his employment, including—

(a)   any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

I am satisfied that the Complainant was paid all of the wages due to her within the six month period prior to the referral of this complaint with the exception of her salary for September 2024 which I have addressed in CA-00069118-001 and an amount of €2,500 in August 2024 given that she only received a salary payment of €5,000 in that month.

While I note that the Complainant also stated that she was due to be paid expenses that she did not receive, the Payment of Wages Act 1991 is primarily concerned with regulating the payment of wages or remuneration to employees. Its fundamental objective is to ensure that employees receive their wages or salary in a timely, full, and fair manner.

Critically, the Act defines “wages” as money payable to an employee under a contract of employment in respect of their work. This definition explicitly excludes reimbursements or allowances such as expenses incurred by the employee in the course of their duties. Expenses, which commonly include costs such as travel, meals, or materials incurred while performing work-related tasks, are regarded as reimbursements for out-of-pocket expenditures rather than earnings or remuneration.

Given this distinction, expenses do not fall within the scope of the Payment of Wages Act 1991.

Considering all of the foregoing, I find that the complaint is well founded only in respect of the shortfall in the August 2024 salary.

CA-00069118-001:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent make a payment of €7,500 to the Complainant. This is subject to taxation and the normal statutory deductions.

CA-00069118-002:

I have no jurisdiction to hear this complaint for the reasons set out above.

CA-00069118-003:

I find that the complaint is well founded for the reasons set out above.

In making a decision on what compensation to award, I have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where the Complainant claimed that the Respondent was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

Given that the complete failure to issue a statement of terms and conditions of employment is a more serious breach than providing an incomplete or incorrect one, I am guided by the authority of the Labour Court and grant the maximum allowable award in this case. Accordingly, I make an award of €6,923 (€90,000/52*4).

CA-00069118-004:

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.

I find that the Complainant was unfairly dismissed for the reasons set out above.

In deciding on a suitable remedy, I must consider reinstating the Complainant despite her statement that she was only seeking compensation.

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”

Considering the foregoing, and given the reasons behind the Complainant’s resignation, I am satisfied that the trust and confidence required for the resumption of an employment relationship no longer exists.  Accordingly, I have decided to make an award of compensation.

In deciding on the level of compensation to award, I note the views of the Adjudication Officer in ADJ 32667, where, in calculating the award of compensation, she stated, inter alia, that: 

“in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

In examining section 7(2)(a), I find that the Respondent acted wholly unreasonably in causing the Complainant to resign. In relation to subsections 7(2)(b) and (f), I find that the Complainant made no contribution to the termination of her employment, as she was forced to resign from her employment because she was not paid.

In respect of section 7(2)(c), I must examine whether the Complainant took reasonable steps to mitigate her financial loss.

I note firstly and accept that, according to her undisputed evidence, she made reasonable efforts to secure alternative employment in the period between her dismissal and the commencement of her own business in January 2025.

However, from January 2025 onward, once she began operating her own business, she ceased seeking alternative employment. At the time of the hearing in June 2025, she confirmed that she had not drawn any salary from the business, which remained in its early stages of development. While starting a business can, in certain circumstances, constitute a legitimate effort to mitigate loss, I must consider whether those steps have actually reduced, or are reasonably likely to reduce, her financial loss.

In this case, the Complainant’s business has not allowed her to draw a salary to date, nor was there any compelling evidence presented at the hearing to suggest that it will do so in the near future. The duty to mitigate requires not only effort but effective action—steps that either reduce the loss or are reasonably likely to do so.

While I therefore give full credit to the Complainant for her job-seeking efforts in the months immediately following her dismissal, I must also recognise that her decision to stop seeking employment and pursue a business venture with no immediate financial return has extended her period of financial loss. Accordingly, I have estimated her actual financial loss up to the date of the hearing in June 2025.

In assessing her prospective loss beyond that point, I must consider her ongoing decision not to seek paid employment. As she has therefore not taken sufficient steps reasonably likely to reduce her future loss, I find it appropriate to limit the compensation awarded for the period after June 2025.

Accordingly, I have adjusted the compensation to reflect these considerations and make an award of €67,500, representing 9 months’ pay, in respect of the unfair dismissal.

CA-00069118-005:

I find that this complaint is well founded for the reasons set out above and direct that the Respondent make a payment of €2,500 to the Complainant. This is subject to taxation and the normal statutory deductions.