Complainant

Respondent

Parties

Kelly  Duggan

Hibernia Home Care

Representatives

Mary Duffy-King

Mary Seery Kearney BL, HR Brief Limited

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-00069073-001

05/02/2025

The Complainant started her employment as a Health Care Assistant with the Respondent on 6 June 2022 and earned an average of €560 per week. She stated that her employment was unfairly terminated on 31 January 2025 when the Respondent dismissed her because she refused to sign a new contract of employment when her role was due to transfer to a new employer under the TUPE Regulations.

The Complainant gave evidence on oath. She outlined that she worked as a Health Care Assistant with the Respondent from 6 June 2022 until she was dismissed on 31 January 2025.

She stated that the employees were made aware of a transfer of undertakings on 31 October 2025 further to which a meeting took place on 5 November 2025 where the Complainant accepted she informed the Respondent that she would not be transferring. She stated that she had been recruited to the company by her sister 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 her sister would no longer be involved with the Respondent post transfer. Although she also stated that the new contract involved changes to her existing terms and conditions of employment, she was unable to clarify in cross-examination what these material changes were and stated that she also did not sign a new contract out of loyalty to her sister who had issued her with the original contract of employment.

The Complainant stated that she could not understand why she was dismissed from her employment for not signing a new contract of employment when she already had an existing contract.

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.

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, Mr 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. The first meeting was held on 26 November 2024. It served as a facilitation session in which grievances were raised. 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.

THE LAW

The Act at Section 1 defines dismissal and constructive dismissal in the following manner

“dismissal”, in relation to an employee, means—

the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

 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,

This case is unusual in that the Complainant did not formally terminate her employment at any point. The Respondent contends that she resigned at a meeting on 5 November 2024 by stating that she would not be transferring to the transferee. However, this statement was made almost three months prior to the proposed transfer date of 31 January 2025 and cannot reasonably be construed, in and of itself, as a clear and unequivocal resignation.

I am of the view that a reasonable employer, faced with such an indication, would have sought immediate clarification as to the employee’s intentions. Notably, and remarkably, the Respondent failed to do so.

The Respondent’s position is further undermined by its own subsequent conduct. If the Respondent genuinely believed that the Complainant had resigned on 5 November 2024, it is entirely illogical that they would thereafter issue her with a new contract of employment. Such an action is utterly inconsistent with the acceptance of a resignation and strongly suggests that no resignation had, in fact, occurred.

The new contract was one which the Complainant was under no obligation to sign. As acknowledged by Mr Dunne in his dealings with other employees affected by the transfer, employees were entitled to rely on the terms of their existing contracts. The Complainant’s refusal to sign a new contract did not constitute a resignation and did not provide any lawful basis for treating her employment as terminated.

I am therefore satisfied that the Complainant did not resign, or terminate her own employment, whether within the meaning of the Act set out above or otherwise. The Respondent’s treatment of her as having resigned—whether arising from her statement on 5 November 2024 or from her refusal to sign a new contract—was legally flawed and unreasonable.

In substance, the Complainant’s employment was terminated by the Respondent. This amounts to a “dismissal” by the employer within the meaning of the Act set out above.

Section 6(1) of the Act provides that:

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless there are substantial grounds justifying the dismissal.”

As no substantial grounds were provided by the Respondent to justify the dismissal in this case, I find that the Complainant was unfairly dismissed.

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.

Analysis:

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

The Remedy

In deciding on a suitable remedy, I must consider reinstating the Complainant, particularly since she is still seeking employment, 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, I am satisfied, based on the evidence presented to me, 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.

The Complainant was employed by the Respondent earning €560 per week and was dismissed from her employment on 31 January 2025. In assessing financial loss arising from her dismissal, and the efforts she made to mitigate this loss in accordance with the requirements of section 7 (2) ( c ) above, I noted that the Respondent’s witness Mr Wallace highlighted the significant shortage of health care assistants in the sector and asserted that the Complainant should have been very easily able to secure alternative employment between the date of her dismissal and the hearing on 31 October 2025.

While the Complainant did not dispute the shortage of health care assistants, she provided evidence that she had actively sought alternative employment during this period. She further stated that neither she nor her local Intreo centre could understand why she was unable to secure a new role despite her sustained efforts.

Having considered the evidence, I accept that, given the undisputed shortage of health care assistants, the Complainant should reasonably have been expected to obtain alternative employment within the nine-month period between her dismissal and the hearing.

In assessing the level of compensation to award however, it would be wholly inappropriate to focus solely on the Complainant’s mitigation efforts especially in circumstances where the Respondent’s conduct in dismissing the Complainant was entirely unreasonable as set out above. This is in line with 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 the other provisions of Section 7(2) in respect of the instant case, in addition to 7(2)       ( c ) which I have addressed above, I find as follows:

7(2)(a)(d) and (e): The Respondent acted wholly unreasonably in dismissing the Complainant without cause and no procedural fairness was afforded to the Complainant. The Respondent effectively issued a termination letter on 31 January 2025, did not convene a meeting, afforded no opportunity to respond, and offered no right of appeal. This represents a wholesale failure to comply with the principles of fair procedure contained in S.I. No. 146/2000, the Code of Practice on Grievance and Disciplinary Procedures. The responsibility for the dismissal and the resulting financial loss therefore rests overwhelmingly with the Respondent.

7(2)(b) and (f): I find that the Complainant made no contribution to the termination of her employment.

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, I find that having considered all of the circumstances—including the unreasonableness of the dismissal and the Respondent’s complete failure to follow fair procedures— an award of €7,280, namely 13 weeks’ pay, represents a just and equitable measure of compensation.