Complainant

Respondent

Parties

Charlotte  O’Connor

Hibernia Home Care Health

Representatives

Mary Duffy-King SIPTU (Retired)

Mary Seery Kearney, BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00069076-001

05/02/2025

The Complainant was employed as a Health Care Assistant with the Respondent from 09/06/2022 until 31/01/2025.  Her employment ceased when she did not confirm her willingness to transfer to another entity under TUPE.  The Complainant submits that she was unfairly dismissed. 

The Respondent submits that the Complainant resigned by virtue of the fact that she did not confirm her willingness to transfer despite extensive engagement with her and other employees.  The Complainant was paid €15.50 per hour and worked 30 hours per week.  She submitted her complaint to the Workplace Relations Commission (WRC) on 05/02/2025.  The fact of dismissal is in dispute.

At the outset of the hearing the Complainant withdrew a number of parallel complaints and there is only one complaint with the above reference number (ADJ-00057021) to be adjudicated in this decision.

Evidence – the Complainant:

The Complainant gave evidence on oath.  She outlined that she worked as a Health Care Assistant with the Respondent from June 2022 until she was dismissed on 31/01/2025.  The complaint stated that she and other colleagues received  notice on 31/10/2024 that a TUPE was to take place.  She and her colleagues did not know what this meant but the information did state that they would become employees of a new company and retain their current contracts, terms and conditions and other benefits. This memo also stated that there would be no redundancies or layoffs because of this.

The Complainant stated that while this emerged, she was aware of a background issue in relation to a Director (Director “A”) and this caused concern among employees as this Director had employed many of the employees and were on friendly terms with this person.

The Complainant gave evidence that there were meetings held with employees and these were chaotic at times and no real information was provided.  The employees were not represented at this time.   The Respondent engaged a mediator to assist but these meetings did not go well either.  The Complainant stated that the employees believed that whatever was happening was related to the issue with Director “A”.  There was an employee who volunteered to be spokesperson but this did not go well and she was unable to reach all the employees due to the scattered nature of where their work. The Complainant stated that the employees did not consider this to be a valid TUPE as there was just a change in the name.

The Complainant stated that she was issued with a new contract of employment and she refused to sign this.  She had questions in relation to why she had to sign a new contract and she was concerned that this would affect her hours.   The Complainant stated that there was a deadline given for the transfer date and this was extended a few times and the final date was 31/01/2025.  This was a Friday and as she does not work on that day she missed phone calls.  When she checked her email, she was told that her employment had ceased and that she would work up to 09.00pm that evening.

The Complainant stated that she was upset and distressed at being dismissed in such a fashion and she did not understand why as she believed that nothing would happen until the issue with the Director “A” was resolved.

In response to a question from the Adjudication Officer the Complainant confirmed that she did not appeal the decision to dismiss her.  She cited the fact that she was too upset as the reason for not doing so.  She also confirmed that she obtained work 10 weeks later.

Cross Examination – the Complainant:

The Complainant was cross examined by Ms Seery Kearney, BL, on behalf of the Respondent.  The Complainant confirmed that she was a member of the pension scheme and the health scheme.  The Complainant also confirmed that prior to 2024 she never raised any formal grievance and she had no disciplinary record and no sick leave absence. The Complainant also confirmed that her email address was the same as that provided to the WRC and she had access to this on her phone.

The Complainant confirmed that she received the notice regarding the transfer of undertakings on 31/10/2024 and she also confirmed that this constituted the formal notice of the transfer which was scheduled for 02/12/2024.  The Complainant confirmed that this notice was sent to her email and it also contained the Frequently Asked Questions (FAQ) document.   The Complainant agreed that this notice was received more than 30 days prior to the proposed transfer.

It was put to the Complainant that the FAQ document confirmed that all the existing terms and conditions of employment for employees would remain the same and in her case the fact that she did not work on a Friday remained unchanged.  The Complainant agreed.  The Complainant confirmed that she attended the meeting on 05/11/2024.  She agreed that there were 120 employees due to transfer as part of this arrangement.  It was put to the Complainant that at the meeting on 05/11/2024 Mr Wallace confirmed that if any employee refused to transfer that would constitute a resignation and she then left the meeting at that point.  The Complainant confirmed that she left the meeting and stated that it was becoming difficult to hear anything.  The Complainant confirmed that she did not understand that she would be resigning if she refused to agree to the transfer.  The Complainant stated that a colleague got legal advice which was that the transfer could not happen.  The Complainant confirmed that she attended the meeting with the mediator on 26/11/2024 along with her colleagues.  The Complainant confirmed that she received the letter dated 28/11/2024 which confirmed that the deadline for the transfer was extended by two weeks to allow people to confirm that they would transfer.  The Complainant also confirmed that she received the letter dated 11/12/2024 from the mediator which confirmed that no one turned up to the meeting on 05/12/2025 and that the deadline transfer date was moved out to 27/01/2025. 

It was put to the Complainant that when her initial contract and the new contract, both of which were opened at the hearing, were reviewed there were no changes to the essential elements. She agreed that there were no changes to her duties, hours of work, uniform, pay and pension.

It was put to the Complainant that the grievances she raised during the consultation period had nothing to do with her terms and conditions of employment.  The Complainant stated that the employees were told that the transfer could not happen and this was based on legal advice from an advisory body.  The Complainant stated that no formal grievance was raised as she never thought that she was going to lose her job.  The Complainant confirmed that she did not hear this legal advice as a colleague sought it on behalf of the group.

It was put to the Complainant that her written submission confirmed that she was objecting to the transfer due to an issue with a Director “A”.  The Complainant confirmed that Director “A” had built the company and employed many of the employees. She stated that the dispute with Director “A” and the Respondent was still going on and she did not think that she would lose her job.

The Complainant confirmed that she received the letter dated 31/01/2025 confirming that her employment had ceased with the Respondent.

It was put to the Complainant that she was a director of two named companies.  She stated that she was not and this was not true.  It was put to the Complainant that the person named as a director had the same name and date of birth as she had and she confirmed that it was not her.

The Complainant was asked by the Adjudication Officer what else the Respondent could have done to help her agree to the transfer.  She stated that the dispute with the Director “A” was an issue and the employees had loyalty to this person.

Closing Submission:

Ms Duffy-King made a closing submission on behalf of the Complainant.  The Respondent made it clear that the Complainant was a good worker.  The Respondent outlined their process in relation to the transfer of undertakings.   The Complainant was one of a group of friends who were loyal to Director “A” who had a dispute with the Respondent.  If the Complainant knew that there was another way to signal her willingness to transfer, other than sign a new contract, she could have exercised that option without being seen to be disloyal to Director “A”.

It is accepted that the Respondent made efforts to resolve the issues but the Complainant took advice from a colleague who in turn got advice from an advisory agency.

The Complainant was distressed at losing her job and it had a devastating effect on her.

It was submitted on behalf of the Complainant that this was an unfair dismissal.  There is no letter of resignation, and there was no reason for the Respondent to dismiss the Complainant.  There were no substantial grounds put forward that would justify the dismissal.

The Complainant was not given an option to signal that there was another way to indicate that she was willing to transfer.  There is no obligation on an employee to sign a new contract when there is a transfer of undertakings. 

The Respondent did not apply the principles of natural justice when dismissing the Complainant and as there were no substantial reasons for the dismissal this is a fundamental breach of the Unfair Dismissals Act.

In relation to redress it was confirmed that the Complainant is seeking compensation as she has another job.  Her losses were quantified as €6,849 which includes pay, notice pay, holiday pay and public holiday pay.

The Respondent submits that the Complainant ended her employment by refusing to agree to a lawful transfer of undertakings under S.I. 131/2003, despite the fact that the transfer was conducted in a lawful manner and in compliance with all the requirements under the Directive.

The Complainant’s terms and conditions of employment remained completely unchanged under the transfer.  The Complainant’s refusal to transfer was deemed a resignation in accordance with well-established case law.

Evidence – Mr David Wallace:

Mr David Wallace gave evidence on oath on behalf of the Respondent.  He outlined that he is a Director of Hibernia Homecare Group limited and he was previously Director of Strategy and Operations.  He has worked for the Respondent since August 2022 and he is also a qualified Registered General Nurse.  His duties include overall strategy, clinical governance, HR and staff welfare.  Mr Wallace give evidence that the Respondent provided home care services to older people and people with disabilities.

Mr Wallace outlined the background to the rationale for the transfer of undertakings.  There is a company known as Hibernia Homecare Limited and another known as Hibernia Homecare Group Limited.  Both are separate legal entities.  The transfer was from Hibernia Homecare Limited to the entity known as Hibernia Homecare Group Limited.  The reason for the transfer was that Hibernia Homecare Group Limited were able to apply for the homecare tender with the HSE.  The Hibernia Homecare Limited entity was not able to apply and this new tender from the HSE necessitated the change to allow the Respondent to apply.  It is a condition of the service agreement that any sub-contractor or third party engaged to provide the services “is subject to the same obligations to which the provider is subject to under this Arrangement”.  Mr Wallace gave evidence that the entity known as Hibernia Homecare Group Limited was fully equipped to be a HSE Approved Provider of Home Support and could fulfil all obligations under the service agreement and the transfer took place to ensure total compliance with the service agreement.  Prior to this both entities help separate service level agreements with the HSE.

Mr Wallace outlined that the Directors considered the situation and as they had staff working for both entities a TUPE arrangement was required as Hibernia Homecare Limited did not qualify for the contract.  This was not just a change in the name as both were separate entities and the advice received was that a transfer could only take place under a TUPE arrangement.

Mr Wallace gave evidence that he held the first meeting with the employees.  He explained what TUPE involved and that they would transfer on their same terms and conditions.  Mr Wallace gave evidence that he informed staff that if they did not consent to the transfer they would be deemed to have resigned their positions from the Respondent.  Mr Wallace also confirmed that the letter which was sent to all employees on 31/10/2024 met all the legal requirements in relation to TUPE.  He also confirmed that he was responsible for drafting the FAQ document which was sent to all employees.    Mr Wallace stated that he wanted to ensure that the information was written in more accessible language.    Mr Wallace gave evidence that this FAQ document clearly confirmed that the only noticeable change for employees would be the addition of the word “Group” in the name of the employer.

Mr Wallace stated that they were confident that all employees would agree to move as it was a good place to work.  They were concerned when a small group stated that they were not going to transfer as arrangements needed to be put in place to ensure the continuity of service to their clients. Mr Wallace gave evidence that they provide a 7-day service and carers and clients are matched so it would be catastrophic if they lost any of their carers so they had to plan for that.

Mr Wallace stated that employees were issued with revised contracts which had the new name of the employer.  This was issues to all employees and some returned this immediately and several others did so after the first consultation meeting.  Mr Wallace estimate that the number received was in the region of 80.

Mr Wallace was asked to explain why a mediator was appointed.  He stated that if the employees felt that there was a lack of trust then it made sense to engage the services of a mediator who would act in an independent and impartial manner.  This would also ensure that the correct information was given to employees.

Mr Wallace confirmed that he did not attend the meeting on 26/11/2024 as this was a meeting between the mediator and employees.  Mr Wallace confirmed that the mediator took a break and consulted with him and he clarified that he could not share information in relation to an issue with another employee.  Mr Wallace also confirmed that he was aware that an employee had put herself forward as a staff representative at that meeting.

Mr Wallace explained that after the meeting the mediator agreed to have further meeting and to facilitate this the transfer deadline was extended.  This meeting was scheduled for 05/12/2024 and no employee attended.  A further meeting did not take place due to a red weather alert situation. The letter dated 28/11/2024 confirmed the extension of the deadline and at that point there were approximately 30 staff who had not confirmed their position.  Mr Wallace also explained that the transfer dates were linked to the Respondent’s pay cycle.  Mr Wallace asked the mediator to communicate with the employees via their representatives.  It was made clear that no further extensions would take place after the 31/01/2025 as the Respondent was required to deliver the services under the Service Agreement with the HSE.  Mr Wallace outlined that on 31/01/2025 no further extensions were given and at 1.00pm they commenced the process of issuing reminders to staff who had not returned their contracts.  He stated that this letter was sent as they were chasing employees for about three months and after these letters were sent, they heard nothing from any employee including the Complainant.  This letter gave employees until 04.00pm to confirm their agreement to transfer and confirmed that their contract terms and conditions have been preserved along with length of service.

Mr Wallace confirmed that the Complainant did not raise any grievance in relation to her situation.  He confirmed that she was a good carer, a nice person and had no disciplinary action.

Mr Wallace was asked about the Complainant’s submission about the Director “A” who was a friend of the Complainant.  Mr Wallace said that he was not aware of the dynamics between this person and the Complainant.  He noted that he was constrained in relation to what he could say for legal reasons.

Mr Wallace was asked about the Complainant’s assertion that she was given no real information.  He disagreed and noted that he had issued the FAQ document, letters, had made the services of a mediator available and the Respondent had issued many emails in relation to the TUPE.  Mr Wallace also disagreed that the employees had no representation.  At the second meeting an employee volunteered to act as representative and there were other representatives later.

Mr Wallace was asked about the meeting in November 2024 when employees walked out.   He explained that he paraphrased the TUPE notification letter and he then invited questions.  He was asked what would happen if employees refused to sign and he made it clear that such employees would legally be deemed to have resigned their position.  At that point the employees left.

Mr Wallace was asked if he was aware that employees were acting under legal advice. He confirmed that he was not and he quoted the relevant acts and made the services of an Industrial Relations practitioner available to employees.

Mr Wallace confirmed that the Respondent had fulfilled its legal obligations in relation to the TUPE.  The reasons and necessity for the transfer were clearly explained.  This was not a sale of the company.  The Respondent looked at the employment rights of employees and complied with their obligations in that regard.  The consultation period was more than 90 days.

Cross Examination – Mr David Wallace:

Mr Wallace was cross examined by Ms Duffy-King on behalf of the Complainant.  He was asked if it was made clear to employees the importance of the HSE contract.  He confirmed that this was not specifically mentioned.  Mr Wallace also confirmed that he was aware that two meetings were chaotic. It was put to Mr Wallace that employees could not complain and he stated that he followed up with an email to clarify.

Mr Wallace confirmed that his letter of 31/10/2024 stated that there would be no redundancies or layoffs.  It was put to Mr Wallace that people, including the Complainant, lost their jobs as they would not sign new contracts.  Mr Wallace disagreed and stated that the reason people lost their jobs was because they did not signal that they would transfer to the new company.  Mr Wallace confirmed that he was unaware that employees had sought legal advice.

Mr Wallace was asked if he informed employees in his final email that they could appeal the decision.  Mr Wallace stated that he did not as there is no appeal process when an employee resigns.

Mr Wallace was asked if he understood that the Complainant believed that nothing would happen until the issue with the Director “A” was resolved.  He confirmed that he was not made aware of this.

Mr Wallace was asked why the TUPE took place at the same time as the issue with the Director “A” was taking place.  He stated that the reason for the TUPE was because of the HSE service level agreement and the obligations on the Respondent as a HSE Approved Provider of Home Support.

Mr Wallace confirmed that the mediator had informed him about the level of discontent among employees in relation to the TUPE.  He also confirmed that he was aware that it was not compulsory for employees to have to sign a new contract under a TUPE.

Evidence – Mr Sean Dunne:

Mr Sean Dunne gave evidence on affirmation.  He stated that he was asked by the Respondent to look at the TUPE process as it applied to them.  He later received a telephone call to say that issues had arisen in relation to the TUPE.

Mr Dunne stated that he is a qualified mediator and under the Mediation Act he must confine himself to its provisions which are to hear both sides separately and don’t advise.  He went to the meeting with the employees and approximately 40 people attended.  He stated that it was difficult to get control of the room.  There was a discussion in relation to what the transfer meant.  He took a break and spoke to Mr Wallace.  Mr Dunne stated that he felt that there was someone driving the issues expressed by the employees.  Several issues arose.  Firstly, there was a lot of views expressed about why the Director “A” was not at the meeting and also why a director of the Hibernia Homecare Group Limited was not in attendance.  The employees also felt that the process was being rushed.

Mr Dunne stated that he explained that the issue in relation to Director “A” could not be dealt with by him or the WRC.  This issue was for another forum.    The employees made it clear that Director “A” was their boss and she was being forced out.  Mr Dunne stated that this was not an IR matter.

Mr Dunne gave evidence that he explained the TUPE process and some employees clearly stated that they would not be signing.  It was clear to him that there was a dispute and that employees had aligned to the Director “A”.   Mr Dunne confirmed that the Respondent agreed to push out the transfer date and at the meeting an employee agreed to be the employee representative.

Mr Dunne stated that no employee attended the meeting on 05/12/2024 and no one contacted him to advise him of this.  When he contacted the employee representative, he was told that employees did not trust him.

Mr Dunne stated that after the 05/12/2024 meeting he had no engagement.  He had some discussions with the employee representative and the Respondent agreed to push the date of transfer to 27/01/2025.  Mr Dunne confirmed that he asked for his letter of 11/12/2024 to be issued to all employees and the purpose of this was to explain the TUPE process and encourage engagement from employees.  No employee said that they would engage.  Following this Mr Dunne said that he contacted the employee representative and emphasised the urgency of the situation but no engagement was forthcoming.  Mr Dunne explained that the urgency was linked to the fact that they did not trust him and if they agreed to attend WRC Conciliation they needed to do so soon.

Mr Dunne said that the consequences of a refusal to transfer were explained by him at another meeting on 22/01/2025 at which 7 employees attended.  There were issues raised such as a feeling that they would not be treated favourably due to the fact that they raised issues about the transfer.  Mr Dunne stated that he explained to the employees that they had to consent to the transfer and that the extensions of the transfer date could not go on indefinitely.

Mr Dunne said that there were no issues raised with him in relation to contracts.  The concerns were about how they would be treated after the transfer.

Cross examination – Mr Sean Dunne:

Mr Dunne was cross examined by Ms Duffy-King on behalf of the Complainant.   It was put to Mr Dunne that employees had a lot of questions at the first meeting with him.  He stated that it took about 30 minutes to control the meeting as there was a lot of concern that Director “A” was not present.  People were aligned to her plight and they felt that the process was being rushed.

Mr Dunne was asked if he felt that the issues with Director “A” clouded the judgement of the affected employees.  He confirmed that it did and when he relayed this concern to the Respondent’s management, they gave an extension to the transfer date.

Mr Dunne was asked if he was aware of how many people said that they would not transfer.  He stated that it was approximately 20.  Mr Dunne was asked if the employees understood what TUPE was.  He said that by the time he got to 22/01/2025 he believed that everyone understood.

It was put to Mr Dunne that in his evidence he said that he felt someone else was driving the issue and he was asked who he considered that person was.  He stated that he felt that Director “A” was the person.

Mr Dunne was asked if there was any issue raised which could not be resolved. He stated that the employee’s concerns about Director “A” could not be dealt with or resolved.  This was a matter for a totally different forum.

Mr Dunne was asked what happened in relation to his proposal in relation to WRC Conciliation and he confirmed that there was no engagement from the employees in relation to this.

Mr Dunne was asked about the meeting he had with a small group of staff and he stated that this was useful and he informed them that there would be no further extensions and they needed to consent to the transfer.  Mr Dunne also confirmed that he advised the employees that they could consent to the transfer without the need to sign a contract.

Mr Dunne was asked to clarify what the basis of the concerns were in relation to the treatment of employees after the transfer.  He said that they felt they would be treated badly by not giving consent.

Closing Submission:

Ms Seery Kearney, BL, made a closing submission on behalf of the Respondent.  She said that the key question is was the Complainant dismissed or did she resign by refusing to transfer.

The Complainant indicated from day one that she would not transfer. She also said that she would not transfer after she was told the consequences of not doing so. The explanation for the transfer was given and this was necessary and genuine.  The HSE Contract obliged the services to be delivered by Hibernia Homecare Group Limited.

The entire process was completed in compliance with the transfer of undertakings regulations.  There was no issue raised in relation to the contract of employment or any issue in relation to the Complainant’s terms and conditions.  These were all preserved and would remain the same after the transfer.

The Complainant was fully in possession of the facts in relation to the transfer of her employment.  This was explained in the initial letter, the FAQ document, meetings, mediation and the offer of WRC conciliation.  There was a blunt refusal on the part of the Complainant to transfer.  The Complainant was misguided by grievances where were not material to the contract of employment.  The reality is that the Complainant wanted to insert herself as collateral into an issue which involved Director “A”. The Complainant made an informed choice.

There was no evidence adduced in relation to the advice which was received from an unnamed person.  In any event that advice was incorrect.

The Complainant had access to her email on the date of transfer.  The Respondent went above and beyond what was required.  The employees involved had hoped that the transfer would not happen.  All they were required to do was to make a positive affirmation that they would transfer.

The law in relation to this matter is clear.  In the case of Katsikas v Konstantinidis [1993] IRL 179 (ECJ) held that an employee cannot be forced to transfer and “their refusal to do so when terms and conditions are maintained amounts to a resignation rather than dismissal by the employer”. Put simply, the employee must decide and if they refuse then it is not an unfair dismissal.

The legal test is were the terms and conditions maintained and did the employer behave reasonably. There was no legitimate reason for the Complainant not to transfer other that the fact that she was part of a group who felt they could stop the transfer.  The Respondent did not dismiss the Complainant.  There was never any complaint made against the Complainant and they wanted to keep her.  This complaint fails due to the law.

The Complainant failed to mitigate her loss.  She was paid up to 14/02/2025.  Any other employee who subsequently engaged with the Respondent after they realised that they were misguided was sorted.

There was no dismissal.  The Complainant raised issues in relation to natural justice and fair procedures but the fact it that the Respondent was involved in a process for three months.  The Complainant had a duty to get advice and not insert herself in an unrelated company matter.

The Complainant is also registered as a company director so she is aware of her obligations.  She was able to read what was laid out for her by the Respondent.  It was unfair for the Complainant to hold out the issue in relation to Director “A” given the way that the Respondent dealt with this matter.

It was submitted on behalf of the Respondent that there was clearly no dismissal as the Complainant refused to transfer.

CA-00069076-001:  This is a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977

The background to this complaint is that it was proposed to transfer the Complainant’s employment under TUPE regulations from Hibernia Homecare Limited (the Transferor).  and another known as Hibernia Homecare Group Limited (the Transferee).  Both are separate legal entities. There was a clear rationale for this which was that Hibernia Homecare Group Limited were able to apply and undertake a service provision contract with the HSE.   The Respondent engaged in a consultative process and in doing so extended the deadline on several occasions.

In the case of Katsikas v Angelos Konstantinidis c-132/91 the CJEU held that in the event of a transfer, an employee of the transferor can object to having their employment transferred to the transferee.  The Court, however, held that this did not mean that the transferor was obliged to continue employing the person exercising the right of objection. 

In Symantec Limited v Leddy and Symantec Limited v Lyons [2009] 20 E.L.R., the High Court held that since the transfer of an employee from the transferor to the transferee is automatic, the effect of an objection is tantamount to a resignation.  Consequently, it was also held that an objecting employee is not entitled to a redundancy payment.

It is important to note that Regulation 5 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI No. 131/2003) specifically prohibits the dismissal of an employee for reasons connected with the transfer.  This is not confined to a dismissal before the transfer or at the time of the transfer or any time after the transfer if it is connected with a reason for the transfer.

After examining all the evidence in this case, I have concluded that the Complainant was not dismissed by the Respondent.  Therefore, a claim of unfair dismissal or unlawful termination fails.

The Complainant effectively resigned as she persistently refused to confirm her willingness to transfer to the new entity (under the TUPE Regulations), even though there was no change to her terms and conditions.  I am satisfied that she brought the employment relationship to an end by her own conduct.

I note that her refusal was based on what can only be described as second-hand legal advice and also an unexplained loyalty to Director ‘A’, not on any objective or material change to her employment terms.  In that context her refusal was personal or subjective, not a legally valid reason to reject the transfer.

CA-00069076-001:  I have decided that the Complainant was not unfairly dismissed.

Dismissal or resignation.  Transfer of undertakings.