FTD254

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00032976 (CA-00043628-004)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Decision to the Labour Court.  A Labour Court hearing took place on 22 and 23 July 2025.

The following is the Court's Decision: -

DECISION:

1. This is an appeal by Michael Hayes of a decision of an Adjudicator Officer (ADJ-00032976 - CA-00043628-004), dated 11 March 2022) made under the Protection of Employees (Fixed-Term Work) Act, 2003 (“the 2003 Act”). Mr Hayes appealed that decision to the Labour Court on 15 April 2022.

Background to the Appeal

2. Mr Hayes lodged his complaint under the 2003 Act to the WRC on 26 February 2019, naming the WRC as his employer. By decision dated 5 March 2021, the Adjudication Officer determined that the WRC was incorrectly named as the Respondent. Leave was granted to allow Mr Hayes initiate new proceedings citing the Minister for Enterprise, Trade and Employment as the Respondent. The referral date for the purposes of the complaint remained as the original lodgement date, i.e. 26 February 2019.
3. The Adjudication Officer did not uphold the complaint and found that Mr Hayes was an office holder who did not work under a contract of employment. Mr Hayes appealed that decision, together with nine other decisions, to the Labour Court on 15 April 2022.
4. A Labour Court hearing was delayed for several reasons. Mr Hayes was one of four Adjudication Officers (all former LRC Rights Commissioners) who lodged similar appeals to the Labour Court around the same time. The four complainants sought to have all appeals heard together. That request was declined. Mr Hayes appeal was put on hold for a period, pending an appeal to the High Court of PTD242 Minister for Enterprise Trade and Employment and Sean Reilly in respect of one of the other complainants. A hearing scheduled for 12 November 2024 was converted to a case management meeting due to the late lodgement of written submissions and a hearing scheduled for 24 March 2025 was postponed.
5. This appeal together with nine linked appeals, PTD252, FTD252, FTD253, DWT2551, DWT2550, DWT2549, DWT2548, DWT2547 and DWT2546 were heard by the Court on 22 and 23 July 2025.

Background to the complaint

6. Mr Hayes was appointed by ministerial warrant to the position of Rights Commissioner with the Labour Relations Commission (LRC) on 27 February 2007. He continued in that role on foot of successive warrants issued. On 1 October 2015, the LRC was dissolved and subsumed into a new statutory body, the Workplace Relations Commission (WRC), established under the Workplace Relations Act, 2015. On the same date, Mr Hayes was appointed by ministerial warrant as an Adjudication Officer with the newly established WRC. He held dual warrants as a Rights Commissioner and an Adjudication Officer to allow him to hear new and legacy cases.
7. Former Equality Officers (with the dissolved Office of the Director of Equality Investigations) were also appointed as Adjudication Officers with the newly established WRC on 1 October 2015. They all were permanent civil servants employed at Assistant Principal (AP) grade. For ease in this decision, the Court refers to Mr Haye’s office holder role as an External Adjudication Officer and former Equality Officers are referred to as Internal Adjudication Officers.
8. The Complainant’s termination date for the purposes of his complaint was confirmed as 14 September 2018. The Complainant’s warrant of appointment as a Rights Commissioner expired on 30 September 2018. His warrant of appointment as an Adjudication Officer was revoked by the Minister on 25 October 2018.
9. The parties are given the same designation as they had at first instance. Michael Hayes is referred to as “the Complainant” and the Minister for Enterprise, Trade and Employment is referred to as “the Respondent”.

The Complaint under the Protection of Employees (Fixed Term Work) Act 2003

10. The complaint was lodged to the WRC on 26 February 2019. The relevant period for consideration of a contravention of the 2003 Act, having regard to the time limits set down at section 41 of the Workplace Relations Act 2015, is the period from 27 August 2018 to 26 February 2019. As the Complainant confirmed his termination date for the purposes of the complaint is 14 September 2018, the relevant period for consideration is confined to the period from 27 August 2018 to 14 September 2018.
11. The Complainant contends that Respondent has contravened the Act by failing to offer him a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration.
12. The Respondent rejects the complaint, as it contends that the Complainant does not satisfy the criteria within the Act to sustain a prima facie complaint as he was an office holder and not employed pursuant to a contract of service. The Respondent also raises issues about the Complainant seeking dual relief under the 2003 Act and a linked appeal under the Protection of Employees (Part-Time Work) Act 2001 and what it says are attempts to raise new matters on appeal, which was denied by the Complainant. The parties agreed with the proposed Court’s approach to deal with preliminary matters in first instance.

Summary of the Complainant’s submission

13. The Complainant is a worker pursuant to EU law. At EU law a worker is a person who performs personal services in return for remuneration. As the purpose of the 2003 Act is the implementation of EU law and the protection of workers’ rights, it must be interpreted in line with that purpose. Any alternative position denies a purposive interpretation of the legislation as required by EU law. The Directives apply to all workers under a contract employment or under an employment relationship.
14. The Complainant is in a worker like relationship within the meaning of EU law. The relationship is not substantially different than an employment relationship under national law. The common law tests cannot be strictly applied, as this goes against the protections which the Directives aim to foster. The only issue is whether the Complainant was the owner of their own business or a worker for the State.
15. For the purposes of the 2003 Act, an office holder is an employee of the State or government. The Supreme Court decision in The Revenue Commissioners and Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24moved the common law test for contract of services in line with the meaning of worker in EU law. The Complainant satisfies all the tests set out in Karshan.
16. The Complainant satisfied the first precondition in Karshan relating to the wage/work bargain. There was a binding agreement that the Complainant be paid in consideration for his personal services. He was paid when not performing services, when a case for which he was rostered fell within 48 hours of the date set for the hearing.
17. The Complainant satisfied the second precondition relating to the provision of personal services. As a Rights Commissioner and Adjudication Officer, he had an extremely limited right of substitution. Only another office holder could perform the service, and payment went directly to that person.
18. The third precondition relating to the control exercised by the Respondent over the Complainant in his work is satisfied. The Respondent controlled what work was to be done, in that it provided a pre-allotted schedule of cases to be heard and pre-decided the type of cases to be heard on a given day. The Respondent controlled the way in which the work was to be done by scheduling a mixture of hard and easy cases on any given day. A decision was to issue within one month. The Respondent controlled the time and place of hearings. The Respondent controlled all interactions with service users.
19. The Complainant’s terms and conditions of appointment demonstrate the Respondent’s control over his activities. He had to give priority to cases scheduled by the LRC and his ability to engage in any other kind of work was restricted. Holidays and periods of non-availability had to be agreed in advance. The change in practice whereby the Complainant indicate his availability rather than unavailability did not override his written terms and conditions of appointment.
20. Where the three preconditions set in the Karshan framework are met, the Court must consider any other relevant factors. The Complainant was in the same position as the Karshan drivers, as he could not communicate directly with customers. He worked exclusively from premises paid for by the Respondent when hearing cases. He took no credit or economic risk. He could only adjudicate on cases provided to him by the Respondent. The Respondent provided equipment. He had no ability to maximise his own profits and did not advertise his services. He did not scale a business to a particular market. As a Rights Commissioner he was not treated as self-employed for tax purposes and received P45’s and P60’s for tax purposes.
21. Finally, the Supreme Court made clear in Karshan that the approach taken in that case was subject to inherent limitations and may need to be modified for statutes involving the protection of workers’ rights. Such modification, if required could only be to broaden the tests for those persons who come within the scope of the Acts, given the very broad definition of worker in EU law. The relationship is not substantially different from that of a worker in national law as they are only obliged not to be self-employed people in business in their own right.
22. The Complainant’s remuneration and related benefits should be equivalent to a generic Principal Officer in the Civil Service, and particularly a Social Welfare Appeals Officer, a Registrar of the Workplace Relations Commission, and an Ordinary Member of the Labour Court. The Complainant and his comparators were all paid by the State and worked for the same employer. The Complainant was subject to the directions of the Minister in the same way as other public service employees. The fact that an individual has the possibility to carry out an additional role has no impact on his status as a worker vis a vis the Respondent.

Summary of the Respondent’s position

23. The complainant was at all times an officeholder and not employed pursuant to a contract of service.
24. The Complainant is an analogous position to that set out in Murphy v Minister for Social Welfare [1987] IR 295, where Blayney J. held that the employment of an ordinary member of the Labour Court was not pursuant to a contract of service but that he was employed in the Civil Service of the State. That does not mean that it is not open to another officeholder to assert based on their individual factual circumstances that they have a contract of or for service.
25. The complaint must first be considered in light of the provision of the Irish legislation. Consideration of any matters raised in relation to the transposition of the directives is only appropriate thereafter. The 2003 Act contains a deeming provision in relation to an office holder, whereby they are deemed to be an employee employed by the State or government. In the circumstances, the Complainant is deemed to be an employee for the purposes of the 2003 Act. The Complainant must establish that he is, notwithstanding his office holder status, a fixed-time employee for the purposes of the act, that his chosen comparator was a comparable permanent employee and that the Respondent was an employer within the meaning of the Act. To do so, the Complainant must establish a contract of service with the Respondent.
26. The Complainant does not fulfil the criteria set out by the Supreme Court in the Karshan judgment.
27. The Respondent accepts that there was an agreement between the parties that the Complainant received remuneration in return for the provision of his services as a Rights Commissioner and as an Adjudication Officer when those services were provided. There was no agreement to pay the Complainant when he did not provide those services, unless a case was withdrawn or settled within 48 hours of the hearing as it was presumed preparation work had been undertaken at that point so close to hearing. It is accepted that the Complainant agreed to provide his own services when providing services as a Rights Commissioner and Adjudication Officer.
28. The Respondent did not exercise sufficient control over the Complainant to render the agreement one capable of being an employment agreement. The Complainant notified the Respondent of his availability to work when he wished to do so. The Respondent had no ability to require the Complainant attend work once he chose not to indicate his availability to work, displaying a complete lack of control on the part of the Respondent. Given the lack of entitlement to payment in periods when he chose not to indicate his availability, together with the entire control over that decision resting with the Complainant, the agreement between the parties is not capable of being an employment agreement.
29. The Complainant's ability to determine if and when he worked demonstrates that he was working for himself and is indicative of being in business on his own account. He could increase his income by making himself more available to the WRC or he could choose not to make himself available and engage in private consultancy work.
30. The nature of the relationship between the partes is not consistent with a contract of employment. There was no obligation on behalf of the Respondent to provide work to the Complainant. He had complete freedom to indicate if and when he was available to provide services.
31. The Complainant was not integrated into the WRC organisation. This is a clear distinction between Internal Adjudication Officers, employed by the Respondent pursuant to a contract for employment, and those like the Complainant, who provided their services from an external panel. The Complainant did not have an allocated “office” and was entitled to refuse an allocated hearing location. A worker who was permitted and entitled to disengage from his role cannot be integrated into the business of the WRC.
32. The contravention complained of must have occurred during the cognisable period to come within the scope of the Act. The Complainant must establish that he is a fixed-term employee within the meaning of the 2003 Act in the relevant period. The Complainant is not a part-time employee and does not come with the 2003 Act. On his WRC claim form, he cited that he worked 50 hours a week.
33. On his WRC form, the Complainant cited “Adjudication Officers of the Equality Tribunal, ordinary members, Vice Chairs and Chairman of the Labour Court” as his comparators for the purposes of the 2003 Act. At the WRC hearing, he changed comparator to the “grade of Principal Officer and/or ordinary member of the Labour Court or, alternatively, an Equality Officer or Internal Adjudication Officer of the WRC”. The only appropriate comparator is a former Rights Commissioner who was appointed as an External Adjudication Officer and worked full-time hours.
34. Without prejudice to the foregoing, there was no less favourable treatment as alleged. The per diem rate for External Adjudication Officers substantially exceeded the remuneration of Internal Adjudication Officers remunerated at Assistant Principal grade, as evidence by the report of Mr O'Connell, Actuary. External Adjudication Officers received the same per diem rate.

Evidence of the Complainant

35. The Complainant was appointed by ministerial warrant as a Rights Commissioner in the LRC in 2007 and, subsequently, as an Adjudication Officer in the WRC. He worked mostly in the Galway area. His warrants stated that holidays and non-availability for days should be agreed in advance. He was required to give priority to cases scheduled by the LRC and could not engage in work inconsistent with conducting investigations in an impartial manner. Recommendations had to be prepared within one month of hearings. In 2011, his working week was reduced by the Respondent to three days per week, with one day allocated to writing up. He had the option to go back to five-day working.
36. In the WRC, he heard legacy cases as a Rights Commissioner and new cases as an Adjudication Officer. The pattern of work was similar in that he travelled to hearings and heard three to four hours of hearings each day. He inputted his availability over a six-week period whereas previously it was taken as read that he was available to work. Any equipment required was provided by the WRC.
37. He did not consider himself to be self-employed. He paid tax and PRSI as an employee, until the Department of Social welfare ruled that he was an officeholder and not an employee. He undertook other work three or four times during his tenure and always mentioned it to management.
38. His work was of equivalent value to that undertaken by a generic Principal Officer grade in the Civil Service, as agreed by the Social Partners in 1986. There is a Dail record to that effect. It was also equivalent in value to an Ordinary Member of the Labour Court, the WRC Registrar, and a Social Welfare Appeals Officer. He was treated less favourably as he was not entitled to holidays, sick pay, or a pension. He was never offered a permanent contract or given a reason for that.
39. In 2018, he had a dispute about pay. He informed the Respondent that he was ceasing work and would not complete outstanding decisions. He withdrew his labour for three months from March to June 2018. He offered to finish decisions and worked in July, August and September 2018 until the Respondent withdrew his warrant.
40. Under cross examination, the Complainant accepted that he could choose when he worked. There were no constraints over him supplementing his income. He was paid if a case settled 48 hours in advance of a hearing but not when he did not work. He had a level of flexibility that permanent employees did not have. If a case settled, he was not required to stay at the hearing. He agreed that Internal and External Adjudication Officers had different duties. He accepted that, unlike the Internal Adjudication Officers, he could choose not to work in a location but did not exercise that choice.
41. The Complainant agreed that, at the WRC hearing, he maintained that an Internal Adjudication Officer at Assistant Principal level was his comparator, however, his focus was on a generic Principal Officer grade. He disputed that his per diem rate pay was linked to that grade for budgeting purposes only. He accepted that when the Revenue Commissioners decided that Rights Commissioners were not civil servants and so not entitled to travel and subsistence, the per diem rate was increased.
42. The Complainant could take annual leave but did not receive holiday pay. It was his choice not to lodge a complaint under the Organisation of Working Time Act in the period between 2007 and 2018. In his view he was entitled to a contract of indefinite duration by operation of the law.
43. The Complainant accepted that he did not provide his services to a significant extent in 2018. He disagreed that correspondence from the WRC indicated that the Respondent had no control over him in the performance of his services at that time; that was the way the Respondent chose to exercise control. He disagreed that he held the WRC to ransom when he withdrew his services and did not hear a case on 12 July 2018. When asked if an employee in dispute about a day's wages is entitled to withdraw their service, he said that he was prepared to do it and suffer the consequences. He accepted that he was not subject to disciplinary or performance management processes. He agreed that he was not performing services for or under the direction of the WRC at that time.
44. The Complainant said he worked 59 days in 2018. He had no memory of hearing any cases after March 2018. He accepted that the only working time within the cognisable period was seven writing up days in September 2018 when he worked from home.

Evidence of Mr David Iredale

45. Mr Iredale’s evidence was he was appointed as a Rights Commissioner in September 2003 and subsequently worked as an Adjudication Officer, up until 31 August 2018. He was paid at the first Long Service Increment of the Principal Officer grade. His pay reduced under FEMPI regulations and was not restored. In 2016, the rate increased to €495, partly to compensate for loss of terms and conditions when Revenue deemed that Rights Commissioners were itinerant workers. All Rights Commissioners were given equipment. He had a laptop, phone, and printing machine, which were common to all Rights Commissioners under both the LRC and the WRC.

Evidence of Mr Vivian Jackson

46. As Head of the Post Registration Unit in the WRC Mr Jackson had oversight of case scheduling and certification of fees for External Adjudicator Officers.
47. On WRC establishment day the roles of Rights Commissioners and Equality Officers became Adjudication Officers. They held two warrants to address new and legacy claims.
48. From establishment day, cases were assigned using electronic diaries. To avoid populating the electronic diaries seven days by 24 hours, the default position was 'unavailable', which gave all Adjudication Officers the right to control their own diary in whatever way they wished. Adjudication Officers made themselves available for whatever number of hearing days they wished. They could indicate their preferred start time. The WRC has no role in directing an Adjudication Officer once cases are assigned. The Adjudication Officer has seisin of the case, it is up to that person to manage it fully and come back with a decision. The Complainant could not substitute somebody else for himself as, under the 2015 Act, the power was vested in the Director General to delegate cases.
49. Former Equality Officers who became Internal Adjudication Officers were permanent civil servants employed at Assistant Principal (AP) grade, who worked 37/38 hours per week and were subject to performance management. They worked in Lansdowne House. They undertook other duties as they were appointed as mediators under the Workplace Relations Act 2015 as well as outreach work such as speaking at conferences and dealing with Parliamentary Questions. If a case was withdrawn or settled, they returned to their office as they were employed to work their contracted hours.
50. All Adjudication Officer’s had a WRC email and were provided with software for whatever laptops they had. He never approved equipment or hardware for any External Adjudication Officers. All Adjudication Officers, whether internal or external, were invited to training around three times a year. Internal Adjudication officers were obliged to attend. External Adjudication Officers were not and if they did attend, they were entitled to claim a per diem rate.
51. External Adjudication Officers submitted fees fortnightly in arrears. The per diem rate increased to €495, for hearing and writing up days. The ratio was 3:1 or three hearing days to one writing day.
52. On 27 March 2018 Mr Jackson e-mailed the Complainant as he was unable to certify payment for fee claims submitted. His ratio had dropped to under 2:1 and to bring the ratio back in kilter would mean that the Complainant would have to complete up to thirty-three hearings. He had no real communication with the Complainant after that in respect of that matter. He understood there was an agreement that he would reduce the outstanding decisions and not hear new cases for a period.
53. The Complainant was listed for hearings on two or three occasions in June and July 2018. On 12 July 2018, the Complainant phoned to say that he was still in dispute about his fees and was not prepared to continue with the hearing that day. He was quite irate and said that he would put a picket on the WRC. After discussing the matter with his manager, Mr Jackson emailed the Complainant to reiterate why he could not pay the writing-up days. Such behaviour would be a serious issue for permanent employees and cause for invoking the Civil Service disciplinary process.
54. The Complainant was not listed for hearings in August. Mr Jackson did not certify payment for any work that he purported to carry out in August. The only record for payment during the cognisable period was for seven writing-up days. The payment was unusually approved.

Evidence of Ms Tara Coogan

55. As Principal Officer in the parent Government Department, Ms Coogan had responsibility for corporate oversight of the Workplace Relations institutions, i.e. the WRC and the Labour Court.
56. Ms. Coogan’s evidence was that the process for appointing Right’s Commissioner contrasted with the usual appointment process for civil servants. A policy decision was made that Rights Commissioners should be persons representing employee and employer representative associations. The Social Partners nominated people they considered suitable for appointment. There was a similar appointment process for Ordinary Members of the Labour Court, but their work is different and is not like work.
57. Terms and conditions for Rights Commissioner are set by the Minister, with approval of the Minster for Finance. The per diem rate is costed at the Principal Officer (PO) grade rate for budget purposes. Rights Commissioners were never linked to or remunerated at Principal Officer level. The role is equivalent to an Assistant Principal's work. The per diem rate factored in annual leave and public holidays to prevent undercutting or bringing people in to work as bogus self-employed. The cost to the Exchequer of providing a budget at AP level is a PO equivalent, which is why some believe they should be remunerated at Principal Officer level.
58. In other administrative decision-making bodies in the public sector, the first instance decision-makers are generally set at Assistant Principal Grade level. Social Welfare Appeal Officers are, in the main, Assistant Principal grade. In 2000, when the Equality Tribunal was established, Equality Officers were all directly employed and appointed at Assistant Principal level.

Relevant Law

59. The Protection of Employees (Fixed-term Work) Act 2003 transposes into Irish law Directive NO. 1999/70/EC OF 28 JUNE 1999 concerning the framework agreement on fixed-term work concluded by social partners at European level.

Section 2 of the Act addresses matters of Interpretation and states as follows: -

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board or health board or a member of staff of an education and training board, shall be deemed to be an employee employed by the authority or board, as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

• (a) employees in initial vocational training relationships or apprenticeship schemes, or
• (b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

Deliberations

60. For the purposes of the 2003 Act, a complainant must be or have been an ‘employee’ of the Respondent and have entered into or worked under a ‘contract of employment’ with that Respondent. Similarly, a respondent must be the person by whom the individual is or was employed under a ‘contract of employment’, as defined in the 2003 Act. Therefore, to ground his complaint the Complainant must first establish that he was in a contract of employment with the Respondent.
61. In a linked appeal PTD252, addressing the same set of facts, the Court decided that the Complainant did not enter or work under a ‘contract of employment’ with the Respondent.
62. On the facts presented in that case, the Court concluded in that “the Respondent did not exercise sufficient control over the Complainant to be consistent with him being employed under a contract of service. The Court finds that the Complainant was a free agent who, by his own evidence, did not work under the direction of the Respondent at the relevant time. It follows that the relationship between the parties was not one capable of constituting an employment relationship“ PTD252, para 118.
63. As PTD252, addressed the same set of facts, it follows that the same conclusion and findings apply to the within appeal. Accordingly, for the reasoning set out in PTD252, the Court finds that the Complainant was not engaged under a contract of employment and is not encompassed by the protections provided by the 2003 Act. Accordingly, his appeal under the 2003 Act must fail.

Finding

64. The Court finds the complaint under the 2003 Act is not well founded. The Adjudication Officer’s decision is varied accordingly.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
18 December 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Fiona Corcoran, Court Secretary.