ADJ-00056988

Complainant

Respondent

Parties

Emily  Bradshaw

Hibernia Homecare

Representatives

Mary Duffy-King SIPTU (Retired)

David Kearney

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-00069212-001

11/02/2025

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

CA-00069212-002

11/02/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act

CA-00069212-005

11/02/2025

The Complainant withdrew CA-0069212-002 and 005.

The Complainant alleges she was unfairly dismissed from her employment following her refusal to sign a new contract of employment following a transfer of undertakings. The Respondent denies the allegation.

Emily Bradshaw: Affirmation:

The Complainant was a staff member for three years with the Respondent since November 2021. She started off on the swabbing covid team for a few months. Then she moved to the office as a supervisor and then to client care coordinator. Each one of those promotions had a pay increase. She was offered the position of operations Manager, but she turned that down. She worked from 1pm-5pm daily. She had other employment in the mornings.  She had a very good working relationship with the company.  She also was nominated for an award during her time with the Respondent.

On the 31st October 2024 staff were sent a letter about the transfer of undertakings from Hibernia Homecare limited to Hibernia Homecare group limited. It stated that there would be a meeting on 5th November and it set out the purpose of the meeting. It also gave the date the transfer would take effect. It also set out the reason for the transfer, the impact of it and the set out the lack of impact the transfer will have on the terms and conditions of employment and on their service. The Complainant accepted that she understood it generally but not the legal part of it. She understood that it said that nothing would change. She accepted that she was sent FAQ and that she had read it. She just didn’t understand why she was being forced to sign a new contract. Other than that, she knew everything was going to be the same. 

Following on from that correspondence the Respondent embarked on the staff meetings. The first meeting was on 5th November. There was a large turnout. The company explained all about the transfer. They said that nothing was going to change. People were confused because there was a dispute between two of the managers ongoing at that time. Staff were worried about that in the context of the transfer.  They felt there was a connection between the two and that those who support Ms. Duggan were at risk of losing their jobs.  It got very heated. A lot of staff walked out. Jason Franzoni, who is the husband of Gillian Duggan asked what would happen if they didn’t sign the form. They were told that that would be deemed as a resignation. That was when people walked out. The Complainant left sometime later and spoke to the staff who were outside. However, she was present for all of the clarifying questions. 

A second meeting was organised for the 26th November.  There were about 15 staff members at it. Sean Dunne was present at that meeting. At this meeting the Complainant agreed to act as the point of information person for the staff.   They spoke about how to stop the hostility which had arisen due to the directors’ dispute.  Mr. Dunne explained that he was brought in as a mediator. Everyone   was concerned that because he was being paid by Hibernia he wasn’t objective or neutral. It was also very hard to get clarity in relation to their jobs. Concerns were raised about a manager being let go together with other issues like scheduling. Everyone shared those concerns. Mr. Dunne took a break to discuss the matters raised by the staff with the Respondent. He came back and explained the issue with the directors was being dealt with by another forum. Under cross examination the Complainant agreed that clarity was given about the director dispute but said that some members of staff were still annoyed and worried.  Mr. Dunne prepared a report after that meeting. He said he would get the information on the other concerns raised and would come back to the staff. He organised another meeting to impart the information the staff were looking for.

On 28th November Mr. Dunne sent an email to the Complainant setting out that additional time to consult was being given. The matter was extended to the 16th December. A meeting was arranged on for the 5th December.  The Complainant did not attend that meeting. The Respondent stated that nobody turned up for that meeting. The Complainant was told that staff didn’t turn up because they didn’t trust Mr. Dunne. Following that Mr. Dunne spoke to the WRC conciliation services and the Complainant accepted that she imparted that information to the staff she was representing.

Under cross examination the Complainant was asked if she was aware that by  2nd December, 80% of the staff had signed a new contract. She stated that she wasn’t aware of the exact number.  When she used the words “everyone” she was talking about those who had concerns about the transfer. There were approximately 15 of them.

The Complainant was asked under cross examination about Ms. Duggan.  Ms. Duggan was her manager. Ms. Duggan was a director and was involved in the director’s dispute. She accepted that that dispute had nothing to do with her role but felt that everyone who was related to or friendly with Ms Duggan had no future with the Respondent.

On the 11th December Mr. Dunne wrote the Complainant.

A third meeting was organised and was held in a pub beside the office. No real information was given at that meeting. It was accepted that Mr Dunne told those present that all they needed to do was to consent to the transfer.  He said that this stalemate couldn’t go on for ever and would come to a close at some point. He said he would bring the concerns back to the company. He reassured them that nothing would happen until the dispute was resolved.  The Complainant stepped down as the spokesperson at that meeting. She said she had family issues at that time and that was the reason for her stepping down. The trust issues with management were still very much a live issue. The Respondent asked if her refusal to consent to the transfer and to sign the contract was due to her loyalty to Ms Duggan. She said that it was not.

The Complainant on the 17th January asked that a letter be sent out to all staff. That was done. Mr. Wallace sent it out on the Complainant’s behalf setting out the Complainant’s contact details.

On Tuesday 27th January there was another meeting. That was cancelled due to a storm.  Following on from that the Complainant got an email and a text stating that the Complainant had to sign the contract by 31st January. Up until that date nobody from management had spoken to the Complainant about her issues.  She was advised that there were perks available to all the transferring staff in line with the other existing staff of the new entity. She called citizens advice and was advised that she did not have to sign the new contract.

On Friday the 31st the Complainant was working at her desk. She had a full schedule that day. She was due to work until 5pm. David Wallace called the Complainant into the office and asked if she was going to sign the contract and she asked if she could think about it over the weekend. He said no. She was then asked to leave. That was her last day.  She did receive a letter and accepted that the letter did give her the opportunity to apply for her job back should she have had a change of heart.  

After that she made no further contact with the Respondent. She secured new employment about twelve weeks later. She is earning €2 per hour less now.

David Wallace, Affirmation:

Mr. Wallace is the director of strategy and operation. He has been with the company since 2021.

The company is a home care agency. They provide care to older people and people with disabilities via a HSE contract. Mr Wallace has known the Complainant since she started in 2021. He was in and out of the office when she first started and he was more hands on in more recent times. He was the interim regional Director and he worked more closely with her at that stage. He knows her well and they had a good working relationship.

The original contract dated the 2021 with a start date of the 06.12.2021. Then she got an updated contract on 30.03.2023 and that was the one in operation at the time of the transfer.

Hibernia Homecare limited and Hibernia Homecare group limited have the same address and 2 or 3 directors are the same in the two. It is an open plan office and the staff in each company work side by side. One company applied for the HSE authorisation scheme and the other did not. That is the only difference between them.

The authorisation scheme was sent out as a HSE procurement tender. The scheme has specifications and has a lot of requirements that need to be met. Hibernia homecare limited did not have all of the resources to meet all the requirements, so Hibernia homecare group applied.  They were successful and got the authorisation. The scheme is hugely advantageous as it provides a higher rate of renumeration.

The directors formed an opinion that staff would have to transfer to Hibernia homecare group limited. Advice was received from their legal advisors, and they formed the opinion that it was a transfer of undertaking type situation.

The company sought advice in relation to the transfer process. In September 2024 it became apparent that the transfer was going to have to take place. Sean Dunne advised on that process in relation to consulting with staff. In reality there really wasn’t much change other that the name on the payslip.

The staff got a notice on the 31.10.2024 to inform them that a TU was identified as necessary and they were invited to a consultation. The notice set out that the date of the transfer was the 2nd December 2024 at 7am, the reasons for the transfer, the impact it would have on the staff (which was non-existent), that all of their terms and conditions would remain the same and that they would retain their current contracts of employment. Notice of an upcoming consultation was given also.  The consultation took place on 05.11 2024. Mr Wallace was there for the transferee and Mr Martin was present for the transferor. At the meeting Mr Wallace read through the notice and invited questions.

Once Mr Wallace had given the letter to staff there were a lot of questions. It then became apparent that some of the staff were not happy with the transfer. After the meeting Mr Wallace prepared a FAQ with answers and he sent that to staff. The Respondent then arranged another meeting, and asked Sean Dunne to attend as he was an expert in this area.

The FAQ set out that pretty much everything will be the same.

The company put measures in place to ensure continuity. Mr Wallace had concerns about the service users. They wanted to make sure that everyone would transfer and to keep doing what they do with their clients without interruption. That process didn’t go as smoothly as hoped. There are 122 staff. The vast majority had no issue with the transfer. Approximately 20 staff members did have concerns. The concerns were just a vague unhappiness about the change. There were no specific concerns addressed. New contracts were prepared and sent to the staff. They were identical to their original contracts save for the name of the employer.

 All staff were asked to check them to make sure they were the same and to identify any errors.

The only difference in the contract was the name of the Respondent and the salary. In the role following the transfers she was paid more.

Mr Dunne arranged for another consultation meeting with the staff. That was on the 26.11.2024. Mr Wallace was not present at that meeting. After that meeting the date of the transfer was moved out two weeks to the 16.12.2024.

The letter dated 28.11.2024. Mr Wallace wrote stating that the date of the TU was being moved out two weeks to allow for further consultation meetings. The 5.12.2024 was the date of the next consultation meeting. That date was agreed with staff. Some staff did request time off for that meeting. The Complainant did not. Mr Dunne attended again. Mr. Wallace was there too but nobody turned up for the meeting.  On 11.12 2024 a letter was sent to staff setting out concerns about the non- attendance at the meeting and to offer WRC mediation to the staff who still had concerns. Mr Wallace’s fear was that staff would not transfer, whether through a lack of understand or something else that the staff would not transfer and would lose their jobs and also for the clients who had developed relationships with the clients.

The Complainant stated in her complaint form that there was a dispute between the two directors and one did not know about the transfer. Staff stated that they were unhappy about the relationship between two directors. Mr. Wallace did engage in that dispute between the two directors as they were directors of the other company.  The transfer was extended again until the 27.01.2025.

Mr. Wallace continued to work in the same office as the Complainant. She became the spokesperson for the staff who had issues with the transfer. They continued to get on well and they just got on with their work.

A further communication was sent to all staff on the 17.01 2025 reminding them that mediation with the WRC was still an option. Ms Bradshaw was the nominated the point of contact for staff in relation to that process.

On 21.01.2025 an email was sent to staff notifying them that a meeting would take place on the 22.01.2025 in relation to the process. Mr Dunne attended that meeting. Mr. Wallace got some feedback but none of it related to the TUPE process. Following that meeting there was to be a follow up meeting on the 24.01.2025. That was the day there was RED weather warning, so the meeting was postponed. The transfer date was moved to the 31.01.2025. That was the final delay. The company needed to get on with it. That was 3 months after the original notification.

Ms. Bradshaw had difficulty expressing what her concerns were in relation to the transfer, and she seemed to have difficulty establishing what the other staff members concerns were.  It did seem to be about the issue with directors and them being family members, however that issue had nothing to do with the TUPE. At the hearing the Complainant stated that staff did not fully understand what the transfer was about. Mr Wallace stated that there was a long, detailed process and all staff were fully aware what it was and why it was happening. They were also informed that any issues with staff member, directors etc could be dealt with under the grievance process.

On the 31.01.2025 Mr Wallace knew that the transfer was going to take place. The majority of staff had signed and returned the contract. One staff member emailed in her acceptance and signed the contract at a later date. There was a few who did not engage. The Respondent needed to know who was transferring and who was not primarily because of the clients. A small number of people did not accept the transfer. At 1pm Mr Wallace send final reminders to the staff who had not accepted the transfer. By 3 pm there were still a number of people who had not accepted so an SMS message was sent to those. It asked them to check their emails as urgent action was needed.

Later that day a small number of staff  (20) had not accepted the transfer. Mr Wallace has to plan what was going to happen to the clients who were cared for by those staff members.  Ms. Bradshaw was in the office, Mr Wallace spoke to her with another staff member present. He asked her was she not transferring. She said she wasn’t. He gave her a termination letter. In that letter it did state that if she wanted to come back to the company she was welcome to apply at any time. He had to have a difficult conversation with her and had to ask her for her keys, phone and laptop. It was a difficult situation, and he tried to be sensitive. 11 of the 20 staff were reinstated the following day and two more a short time later. Even three months after the process one staff member contacted them to say that they regretting not transferring. They were re-employed too. The Complainant stated that she asked if she could have the weekend to think about it and she was told “no". The letter given to her on the 31st did state that if she wanted to re-apply her application would be considered favourably.

The Complainant stated that she was not treated the same as other staff in that she did get a fuel card etc. Fulltime staff had fuel cards, the other had a shared fuel card. She was happy with that. The Respondent offered to pay her car tax but she didn’t pay any due to a grant she was in receipt of for a disabled family member.

Sean Dunne – Affirmation

Mr Dunne is an accredited mediator and Industrial relations expert. He was hired by the company to liaise with the staff in relation to the TUPE. Mr Wallace had a very good handle on what was required.  He was called in post the meeting of the 5th November.  Wallace asked him to come in as mediator to try and resolve the issue. He held a consultation meeting on the 26th November. He said he would hold the meeting on his own. About 30 employees came to the meeting. He listened for about an hour. Some of what the staff had to say was heated. The main issue was difficult to decipher but it seemed to be around one of the directors and another individual called Fiona. He tried to explain the TUPE process, but it was difficult to get the points across. About 10 employees were very upset about Director A and felt that Director A had been forced out. He tried to explain that that issue was separate to the TUPE issue. They also expressed concerns about a manager called Fiona. They felt that she too had been forced out. Again, he explained that it wasn’t relevant to the transfer. He also spoke to the company about those issues. He explained that some of the employees were very hostile, and the date of the TUPE needed to be pushed out to allow time for those hostile employees to calm down and gain some understanding about the process.

A subsequent meeting was set up for 5th December. The idea behind the meeting was to try and establish what the issues were and to find a route to solve those issues. Ms Bradshaw was the spokesperson nominated. Mr Dunne attended at the Respondent’s premises for the meeting, but nobody turned up. Ms Bradshaw did not inform him that the staff were not going to attend. He informed staff members that the date of the transfer was being pushed out again to the 27.01.2025.  Ms Bradshaw has stated that she was informed that the transfer would not happen while the dispute was ongoing. That is not true. The staff were clearly told that if they did not want to transfer, they would lose their jobs. 

On 11 December Ms Bradshaw told him that the staff did not trust him. He then contacted the WRC and he submitted a conciliation form. He informed Ms Bradshaw that the WRC were completely impartial so she could trust in that process.

After the 07.01 2025, Ms Bradshaw was still having problems getting information form the staff about the issues. There was a meeting set up for the 22.01.2025 in a Deputy Major in Finglas. Mr. Dunne told them all that at some point the axe was going to drop and they would all be out of jobs. There was a number is issues raised at that meeting they were as follows:

1.  Communication going forward (lack of communication)
2. The dispute about the Director A and would they be treated differently after the transfer because they were aligned with the director.
3. Holidays
4. Rates

There was to be a meeting on the 24.01.2025 but it didn’t happen because of the RED weather warning.

06.02.2025 Mr. Dunne wrote to the WRC conciliation service informing them of where he was at in the process. A date was never set up for that meeting. 

Prior to the transfer taking place, as far as Mr Dunne was aware, the Complainant had not raised any grievances. 

The Complainant said she was informed that nothing would happen with the transfer until the issues she and the staff members had was resolved. That is wrong. They were all clearly told that the axe was coming down and once this happened there would be no job for them. The Complainant stated that she was being forced to sign the new contract and if she didn’t sign it her job was gone. She felt she didn’t have to sign the new contract.  Mr Dunne explained to the staff that their terms and conditions would remain the same regardless of the transfer. It was made clear that she needed to simply accept the transfer and her job would continue with the new entity. Mr. Dunne also told her that if anyone had a grievance, they should file that with the company and it would be dealt with.

The Complainant was employed by the Respondent from November 2021 until 31 January 2025. During her employment she progressed through several roles, receiving pay increases with each promotion. She worked reduced daily hours by agreement and maintained other employment in the mornings. The employment relationship was described by both parties as positive, professional and mutually respectful. The Complainant was nominated for an internal award and was offered, but declined, a senior management role.

In October 2024 the Respondent notified staff of a proposed transfer of undertakings from Hibernia Homecare Limited to Hibernia Homecare Group Limited. The Respondent asserted that the transfer arose from the need to meet HSE authorisation requirements and that it would not affect employees’ terms and conditions of employment. A lengthy consultation process followed, extending over approximately three months.

The Complainant did not consent to the transfer and did not sign the new contract of employment presented to her. On 31 January 2025 she was informed that her employment was at an end. She secured alternative employment approximately twelve weeks later at a reduced hourly rate.

The Complainant contends that she was unfairly dismissed. The Respondent contends that her employment terminated because she refused to transfer and that dismissal was unavoidable in the circumstances.

The issue to be determined is whether the termination of the Complainant’s employment on 31 January 2025 constituted an unfair dismissal within the meaning of the Unfair Dismissals Acts 1977–2015.

Having carefully considered the oral and written evidence, I make the following findings:

Transfer of Undertakings

I am satisfied that the transfer from Hibernia Homecare Limited to Hibernia Homecare Group Limited constituted a transfer of an undertaking within the meaning of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE”).

Consultation Process

The Respondent engaged in a prolonged and detailed consultation process. Multiple meetings were arranged, external expertise was engaged, written communications and FAQs were circulated, and the transfer date was postponed on several occasions to allow further consultation. I am satisfied that the Respondent complied with its statutory obligations to inform and consult employees.

Nature of the Contract

The evidence establishes that the proposed contract of employment was materially identical to the Complainant’s existing contract, save for the name of the employer and a salary increase. The Respondent credibly stated that signing the contract was not a precondition to employment continuing and that consent to the transfer alone would have sufficed.

The Complainant accepted that she understood that her terms and conditions would not change and that her service would be preserved. Her primary difficulty was with signing a new contract rather than with any substantive change to her employment.

I find that the Complainant’s reluctance to transfer arose primarily from mistrust and uncertainty linked to an unrelated dispute between company directors. While those concerns were genuinely held, they were not directly connected to the transfer itself. The Respondent repeatedly advised that such issues could be addressed through the grievance process.

On 31 January 2025  the Complainant was asked whether she would accept the transfer. She confirmed that she would not do so at that time and sought additional time to consider the matter. The Respondent declined that request and issued a termination letter. I accept that the Respondent acted under significant operational pressure given the imminent transfer date and the need to ensure continuity of care for service users.

 I also note that the termination letter expressly stated that the Complainant could reapply for her role and that her application would be considered favourably. A significant number of employees who initially refused to transfer were subsequently reinstated. The Complainant chose not to pursue that option.

The law is clear that where a transfer of undertakings occurs, employees transfer automatically with their existing terms and conditions intact. An employee cannot insist on remaining with the transferor where the undertaking has transferred, nor can an employer compel an employee to remain employed where the employee refuses to transfer.

In this case, the Respondent did not dismiss the Complainant for refusing to sign a new contract per se. Rather, the employment ended because the Complainant declined to consent to the transfer of her employment to the new entity. In circumstances where the role itself transferred and continued unchanged, the Respondent had no alternative employment available with the transferor entity.

While I accept that the Complainant felt under pressure and that the situation was upsetting, I am satisfied that the Respondent acted reasonably, proportionately and in good faith. The Respondent afforded extensive consultation, repeatedly extended deadlines, offered third-party mediation, and made clear that the Complainant’s employment would continue if she accepted the transfer.

The termination of employment arose from the Complainant’s refusal to transfer rather than from any disciplinary or performance-related decision by the Respondent. In those circumstances, the dismissal was not unfair within the meaning of the Unfair Dismissals Acts.

Accordingly, I find that the complaint under the Unfair Dismissals Acts 1977–2015 is not well founded and fails.

The Complainant withdrew CA-0069212-002 and 005

 CA -0069212 -001 The complaint is not well founded and accordingly fails.