PTD252

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00032976 (CA-00043628-001)

BACKGROUND:

This is an appeal by the worker of an Adjudication Officer's Decision made pursuant to section 17 (1) of the Protection of Employees (Part-Time Work) Act, 2001. 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-00043628-001, dated 11 March 2022) made under the Protection of Employees (Part-Time Work) Act, 2001 (“the 2001 Act”).

Background to the Appeal

2. Mr Hayes lodged his complaint under the 2001 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, FTD252, FTD253, FTD254, 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 postion of Rights Commissioner with the Labour Relations Commission (LRC) on 27 February 2007. He continued in that role on foot of successive warrants. 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 (Part-Time Work) Act 2001

10. The complaint was lodged to the WRC on 26 February 2019. The relevant period for consideration of a contravention of the 2001 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 he was treated less favourably than comparable full-time workers in relation to his conditions of employment. The Respondent rejects the complaint and contends that the Complainant does not satisfy the criteria within the 2001 Act to sustain a prima facie complaint as he was an office holder and not employed pursuant to a contract of service.
12. The Respondent raises issues about the Complainant seeking dual relief under the 2001 Act and a linked appeal under the Protection of Employees (Fixed Term work) Act 2003 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 the 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 2001 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 2001 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 indicated 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 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 2001 Act. The Complainant must establish that he is, notwithstanding his office holder status, a part-time employee for the purposes of the 2001 Act, that his chosen comparator was a comparable full-time 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 to 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 part-time worker within the meaning of the 2001 Act in the relevant period. The Complainant is not a part-time worker and does not come with the 2001 Act. On his WRC claim form, he cited that he worked 50 hours a week. The Complainant’s evidence at first instance was that he made a commitment to be available full time. In 2018 he heard 59 cases in contrast to 223 cases the year before. The reduction in his caseload in 2018 was due to his own decision to reduce his availability and to cease providing his services.
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 2001 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 evidenced 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 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 assigned to him 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 33 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.

The Relevant Law

59. The Protection of Employees (Part-time Work) Act 2001 transposes into Irish law Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by social partners at European level.

Clause 2 of the Framework Agreement on part-time work states:

‘This Agreement applies to part-time workers who have an employment contract or employment relationship as defined by the law, collective agreement or practice in force in each Member State’.

Recital 16 of Directive 97/81/EC is worded as follows:

‘Whereas, with regard to terms used in the Framework Agreement which are not specifically defined therein, this Directive leaves Member States free to define those terms in accordance with national law and practice, as is the case for other social policy Directives using similar terms, providing that the said definitions respect the content of the Framework Agreement’.

The 2001 Act at section 2 addresses matters of Interpretation (generally) and states as follows:

“contract of employment” means—

• (a) a contract of service or apprenticeship, and
• (b) any other 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),

whether the contract is express or implied and, if express, whether it is oral or in writing;

“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 for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014),, or of a harbour authority, 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, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

The 2001 Act addresses other matters of Interpretation (part 2) at section 7 and states as follows:

“part-time employee” means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her;

Deliberations

60. The Respondent’s position is that the Complainant does not satisfy the criteria within the 2001 Act to sustain a prima facie complaint, as he was an officeholder and not employed pursuant to a contract of service. The Complainant’s position is that the 2001 Act transposes into Irish law EU Directive 97/81/EC which applies to all workers under a contract of employment or in an employment relationship. It contends that the concept of a worker under EU law must take precedence and any attempt to limit the scope of the Directive and its interpretation is contrary to EU law.
61. There is no single definition of the term “worker” or “employment relationship” in European Union law. The Complainant relies on the established definition of a “worker” in Case C-232/09: Dita Danosa v LKB Līzings SIA, where the CJEU held that: -  

“The essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration” (Danosa, para 39).

62. Member States were granted discretion to define the concepts of “employment contract” or “employment relationship” in accordance with national law and practice, as long as that definition complied with the purpose of the Directive. It follows that the appropriate starting point for considering the scope of protections afforded to the Complainant under the 2001 Act is domestic legislation and that the concept of a ‘worker’ who has an employment contract or an employment relationship is to be interpreted in accordance with national law.
63. For the purposes of the 2001 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 2001 Act. Therefore, to ground his complaint the Complainant must establish that he was in a contract of service with the Respondent.

Office-holder Status

64. The Complainant was an officeholder appointed by ministerial warrant. The 2001 Act provides that an office holder under or in the service of the State is deemed to be an employee employed by the State or Government. In light of that deeming provision, the Complainant as an office holder is deemed to be an employee for the purposes of the 2001 Act. The Respondent accepts that the fact that an individual is an office holder does not preclude an officeholder having a ‘contract of employment’ with an employer. Accordingly, to come within the protections of the 2001 Act, the Complainant, notwithstanding his office-holder status, must first establish based on his factual circumstances that he was engaged in a ‘contract of employment’ with the Respondent. 

The Karshan Judgment

65. In the seminal case of The Revenue Commissioners and Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24 the Supreme Court undertook a comprehensive review of authorities on determining employment status and set out a 5-step framework to determine whether the contract in place between Karshan and pizza delivery drivers was one of service or one for service by reference to the following five questions: -

“(i) Does the contract involve the exchange of wage or other remuneration for work?

(ii) If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

(iii) If so, does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

(iv) If these three requirements are met the decision maker must then determine whether the terms of the contract between employer and worker interpreted in the light of the admissible factual matrix and having regard to the working arrangements between the parties as disclosed by the evidence, are consistent with a contract of employment, or with some other form of contract having regard, in particular, to whether the arrangements point to the putative employee working for themselves or for the putative employer.

(v) Finally, it should be determined whether there is anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing.”

66. In ruling that pizza delivery drivers were employees of Karshan for tax purposes, the Supreme Court focused on the characteristics of the individual assignments of work. In doing so, it held that a single engagement could give rise to a contract of employment, depending on the specific facts in each case. The Karshan judgment solely addressed the contractual status of delivery drivers for income tax purposes. The Supreme Court noted that the framework may need to be modified when assessing contractual relations between parties under other statutes, particularly those involving the protection of employee rights.
67. The Adjudication Officer’s decision in the within appeal pre-dated the Supreme Court judgment in Karshan. Both parties addressed the application of the 5-step Karshan framework to the facts in this case.

• (i) Does the contract involve the exchange of wage or other remuneration for work?

68. Both parties accept 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, albeit the Respondent’s position is that the contract in place did not constitute a contract of service.  The Complainant satisfies the first precondition, as far as for the period that the Complainant undertook work there was an exchange of work and remuneration.

(ii) Is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?

69. Both parties accept that the Complainant agreed to provide his own personal services to the Respondent as a Rights Commissioner and Adjudication Officer. The Complainant satisfies the second precondition, as the agreement between the parties was one where the Complainant agrees to provide his own services, and not those of a third party, to the Respondent.

(iii) Does the employer exercise sufficient control over the putative employee to render the agreement one that is capable of being an employment agreement?

70. Whether the Respondent exercised sufficient control over the Complainant when he performed his duties is disputed and requires an examination of the specific factual circumstances to assess who controls what aspects of the relationship between the parties.

Remuneration

71. The Complainant was paid by way of a daily per diem rate, costed at the Principal Officer grade rate for budget purposes. He was entitled to an additional per diem rate for a writing up day, after completing three days of hearings. He was also entitled to claim a per diem rate when he attended training. He was not paid for periods when he did not work, except when a case was settled or withdrawn within 48 hours of an assigned hearing date, as it was taken that he had undertaken some preparatory work by that point.  
72. The invoicing of a fee in return for providing services is generally indicative of a contract for service, rather than an employment relationship. In this case, the Complainant had no opportunity to negotiate his fee. The lack of individual bargaining power points to greater control by the Respondent regarding that aspect of the relationship. However, of relevance is that the Complainant was not engaged in a stand-alone role and the fee was a standard rate, set by the Minister, applicable to other officeholders in the same role.

Independence of the Role

73. The Complainant’s core functionwas to decide complaints under employment law and make recommendations to resolve workplace disputes. As an office holder he was obliged to be independent in carrying out his role and was not subject to direction in the way he performed his duties. The requirement to be independent in carrying out statutory functions as an officer holder is common to all Adjudication Officers, whether external or internal, so is not of assistance in assessing whether the Respondent exercised sufficient control over the Complainant to render the agreement capable of being an employment agreement.

Substitution

74. The Complainant did not have the power to substitute another person to perform his statutory services, as his authority to perform those services derived from his warrants of appointment and power vested in the Director General of the WRC by the Workplace Relations 2015 Act to delegate functions to specified persons. Only other office holders could be delegated authority to perform the Complainant’s services. It is well established that a more limited right of substitution is indicative of control on the part of an employer and more consistent with the obligation for personal performance inherent in a contract of service.

Supervision of Work

75. The Complainant contends that the Respondent completely controlled and directed how he conducted his work, however, by his own evidence, no-one looked over his shoulder when he carried out that work. The Respondent contends that once a case was assigned to the Complainant, he had seisin of the case and it was up to him to manage it fully demonstrating a lack of control on their part. In the Court’s judgement, the lack of supervision of the Complainant in performing his duties is not a determining factor in assessing the level of control exerted by the Respondent, given the independent nature of the role of Adjudication Officer and given that employers generally do not expect to closely supervise the work of more skilled or expert workers.

Availability to Work

76. The Supreme Court attached significant weight in Karshan to the obligation on the part of the delivery drivers to notify the employer of their “unavailability” as being indicative of a contract of employment. The Respondent relies on the fact that the Complainant only notified the Respondent of his “availability” to work, as indicative of a lack of control over the Complainant.
77. The Complainant was required to input his “availability” in advance over a six-week period, whereas in his previous role as a Rights Commissioner with the LRC, it was taken as read that he was “available” to work. The change was instigated by WRC management in 2015 when electronic diaries replaced a paper-based system used for scheduling cases. The rationale for introducing a default setting of “unavailable” was to ensure cases were not automatically assigned to diaries around the clock on a 24 hour /7 day a week basis. The Court heard that the consequence of that decision was that Adjudication Officers made themselves available on the system for whatever number of days they wished and could specify their preferred starting times for hearing.
78. The Complainant’s contends that the Respondent had greater control as evident from his terms of appointment letter which required him to prioritise cases scheduled by the Respondent and agree holidays in advance. He submits that the fact that diary practices changed from a requirement to indicate “unavailability” to a request to indicate “availability” does not override the written terms of his appointment. While the letters of appointment opened to the Court are not determinative as to the nature of the relationship between the parties, certain aspects of the letters as they relate to the scheduling of holidays and prioritising of LRC cases suggests control by the Respondent. Notwithstanding that fact, the Complainant accepted that for much of 2018 he was in dispute with the Respondent about contract terms and did not carry out the functions set down in his letters of appointment, as he had withdrawn his services. In the view of the Court, the Complainant cannot rely on terms set out in his letters of appointment to say that the Respondent exerted greater control when he himself accepts that he resiled from those exact terms.
79. The Complainant gave clear and unambiguous evidence that he was not constrained or confined by any contractual requirement to work a set number of days per week. He said that if he wanted to work, he inputted his “availability” and if he did not want to work, he was not required to do anything. By his own evidence the Complainant could determine his weekly hours of work and provide his services at times of his own choosing.
80. In the Court’s judgment, the Respondent did not exert control over when the Complainant carried out his duties, as by his own evidence he was not constrained or confined by any contractual requirement to work a set number of days per week.  His ability to choose when he worked is indicative of control on the part of the Complainant and more suggestive of a contract for service.

Daily Work

81. The Complainant contends that when assigned cases the WRC controlled his daily work, as it determined the cases allocated to him, the date of hearings and the time slot allocated to hear each complaint. The WRC wrote out to the parties with the time date and place for hearing. The Complainant had no choice about this and could not schedule a hearing at a time or location to suit himself. As a result, he submits that he worked set hours and was obliged to perform work on a regular basis.
82. Having regard to his evidence that he could choose his working time, the Court does not agree that the Complainant had an obligation to perform work on a regular basis. However, once the Complainant made himself available and was assigned cases for hearing, the Respondent exerted control over when he performed those duties while hearing cases, as he was expected to work during defined times. That aspect of his work was organised for him by the Respondent. In the Court’s view, the control exerted by the Respondent in the scheduling of hearings is more suggestive of an employment relationship than a contract for service. No such control was exerted by the Respondent on writing up days when the Complainant was free to organise his own working time and worked from his own home base.

Place of Work

83. The Respondent determined the location of hearings, which reflected the requirements of service users. The Respondent exerted control over that aspect of the relationship, and the Complainant was generally assigned to hear cases in the Galway area. The Respondent’s assertion that the Complainant was entitled to refuse an allocated hearing location, was supported by the Complainant’s own evidence. He accepted that, unlike Internal Adjudication Officers, he could choose to accept or reject an assignment in another location, albeit he did not exercise that choice.

Attendance at Meetings

84. Internal Adjudication Officers were required to attend internal meetings and training days, whereas External Adjudication Officers were not. External Adjudication Officers were entitled to claim a per diem rate if they did attend. There was no obligation on the part of the Complainant to attend workplace meetings or training days, pointing to greater control on his part regarding that aspect of the relationship between the parties.

Performance Indicators

85. The Complainant contends that he was subject to performance targets by the Respondent as he was required, by virtue of his written terms of appointment, to ensure recommendations and decisions issued within one month of the hearing of the case. The Complainant was not subject to the Civil Service performance management process. Mr Jackson said that direct employees were required to agree personal targets and key performance indicators with their line manager against which they were measured over a 12-month period. No such process applied to the Complainant.
86. In the Court’s view, the requirement to produce outputs within a set timeframe is typical of any service level agreement between contracting parties and a requirement to produce decisions or recommendation within set timeframes is not a determining factor in assessing the level of control exerted by the Respondent in this case.

Flexibility

87. The Respondent contends that the Complainant had a level of flexibility in his role that is not consistent with an individual in an employment relationship. For his part, the Complainant accepts that he had greater flexibility in conducting his duties than direct employees. 
88. The Complainant had no obligation to work outside the periods when he indicated his availability on the electronic calendar, unlike Internal Adjudication Officers who were required to engage in other duties in addition to their statutory functions.
89. When a case settled on the day of a hearing, the Complainant was not required to remain in his place of work, in contrast to Internal Adjudication Officers. The Complainant agreed that his time was his own at that point, whereas Internal Adjudication Officers were required to return to their desks to carry out other duties when a case settled.
90. The Complainant accepted in his evidence that Internal Adjudication Officers could be instructed to attend a hearing in another location, and/or carry out other duties, whereas he was under no such obligation.
91. The Complainant accepted that he could choose his own hours and had the option to increase or decrease his availability as he wished, in contrast to a part-time employee who had no contractual entitlement or flexibility to increase their working hours to five days a week.
92. The Complainant’s statutory duties were the same for all Adjudication Officers, whether directly employed or not. However, the level of flexibility afforded to the Complainant in carrying out his duties is indicative of greater control on his part in the relationship between the parties.  Such flexibility is more suggestive of a contact for service rather than an employment relationship.

Integration

93. While the level of integration of an individual into an employer organisation is not determinative of an employment relationship, it can be of relevance when assessing control. To service users there was no discernible difference between the services provided by External Adjudication Officers and those directly employed by the Respondent.
94. The Complainant was not however integrated into the Respondent organisation in the same way as direct employees. He was subject to a different appointment process. He was not subject to the same employment policies and procedures as direct employees. There was no management of his attendance. He was not subject to regular performance management or liable to sanction under disciplinary processes. He was not obliged to attend internal meetings or training courses. He was not required to undertake other duties and had generally had greater flexibility in his role. The level of integration in this case points to less control on the part of the Respondent.

Was the Complainant in business on his own account?

95. The Supreme Court in Karshan noted that “(i)t is not possible to separate the question of control from the question of whether the evidence points to the worker carrying on business on their own account” (para 247).
96. The Complainant’s evidence was that he was free to undertake other work to supplement his income but in practice did so on three or four occasions during his tenure. Nothing much turns on this fact, as his right to work for others when not assigned cases does not negate the possible existence of a contract of service between the parties during periods when he was assigned office-holder duties.
97. The Complainant said that he considered himself to be an employee and not a self-employed person. His evidence was that when first appointed as an officeholder in 2007 he “fully understood” that he would be paid a per diem rate and that he was not entitled to annual leave, sick leave or a pension, but he “was prepared to go along with that at that point”. The fact that he did not pursue statutory employment rights until 2019 is a matter for the Complainant.
98. The Court heard that the Complainant’s remuneration was initially subject to tax and social welfare deductions until circa 2008 when the Department of Social Welfare deemed that Right Commissioners were not employees for social welfare purposes. The Revenue Commissioners subsequently deemed that Rights Commissioners were officeholders and not Civil Servants for travel and subsistence purposes, following which the per diem fee rate was increased.  While an inference from these findings may lean against the existence of an employment relationship, they do not negate the possible existence of a contract of service between the parties for the purposes of the within claim.
99. The Complainant shared certain common characteristics with employees of the Respondent. His work as an Adjudication Officer was directed towards advancing a core service of the WRC. He did not enjoy a general right of substitution, as his authority to perform service was derived from his office holder status operating under ministerial warrant and authority delegated to him by the Director General of the WRC. He did not have an opportunity to negotiate his remuneration or profit from the way he performed his duties. Outside of hearings, he did not engage directly with service users, as the scheduling and administration of hearings was undertaken by the WRC. While the provision of equipment to the Complainant was disputed, on balance, the Court accepts the Complainant’s and Mr Iredale’s testimony that they used some equipment provided by the Respondent. It is accepted that the WRC provided the Complainant with a WRC email address and access to IT systems.
100. While these factors lean against the Complainant being in business on his own account, other aspects of the relationship are more consistent with him working as an independent contractor. The amount of time that the Complainant made available to the Respondent was a matter for himself. As stated above, his evidence was that he could decide how much he did or did not work and that the number of days that he worked was completely down to his own choice. If he did not want to work, no action was required on his part. In that sense, he was a free agent.
101. The Complainant was not tied to the same working arrangements as direct employees. If a case was withdrawn and no other work assigned to him, he was under no obligation to perform services for the Respondent that day, in contrast to direct employees. The level of flexibility that he enjoyed is more indicative of a self-employed contractor who operates independently. The Complainant was paid for undertaking preparatory work when a case fell within 48 hours of an assigned hearing. He was not prohibited from engaging in other work to supplement his income on that day if he so wished. The lack of restrictions on his capacity to profit from other work on the days he received payment from the Respondent when cases fell is more suggestive of a contract for service arrangement.
102. In the Court’s judgement, the level of control exerted by the Complainant when he provided his services, together with the level of flexibility that he enjoyed when providing those services, is more indicative of an independent contractor rather than an employee with duties and obligations under an employment relationship.

The Dispute about fees

103. A final matter for consideration when assessing control is the dispute between the parties in 2018 about fees. The dispute, while not determinative of employment status, is relevant to the question of whether the Complainant was in business on his own account.
104. In early 2018, the Complainant sought payment for writing up days to complete a backlog of 80 outstanding decisions, which the Respondent refused to approve on the basis that he had already been paid for undertaking that work. In March 2018, the Complainant notified the WRC of his intention to cease work as an Adjudication Officer. Thereafter, it is accepted that he withdrew his services for a three-month period. The last case assigned to him was in March 2018 to be heard on 12 July 2018. By July, the Complainant had agreed to address his backlog and hear some cases. However, the 12 July hearing did not proceed as the Complainant once again withdrew his services and reaffirmed that he would hear no more cases. Following some engagement, the parties met in early September, and the Complainant offered to complete outstanding work, before his resignation took effect. That offer was declined. His resignation was effective from 14 September 2018.
105. The Respondent submits that extensive correspondence between the parties in the period from March 2018 to 14 September 2018 demonstrates that it had no control over the Complainant in the performance of his services. It contends that the Complainant’s actions were that of a self-employed person rather than an employee and that it had no way of enforcing control as the Complainant was not an employee subject to a performance management or disciplinary process. 
106. For his part, the Complainant’s accepts that he did not perform services for the Respondent for much of 2018 but refuted that his circumstances were more akin to a self-employed person. He contends that he was an employee and that it was not his fault that he was not subject to performance management or a disciplinary process, as the Respondent decided how it chose to exert control.
107. In the Court’s view, the Complainant’s contention that he was engaged in a straightforward worker/employer dispute about pay does not stand up to scrutiny. His expectation to be paid pending investigation of his dispute, as he said happened in the LRC, is difficult to reconcile with correspondence issued to him on 31 March 2017, when the Respondent stated:

“...your contractual relationship is not as an employee … should a dispute on the terms of the contract exist it is not a grievance dispute as would be associated with an employment relationship but rather a dispute in contract law around the provision of service. 

…. As the terms relate to a contract for service it is a matter for you whether you wish to continue to supply the service under those terms”.

108. The Complainant had a dispute about his contract terms and withdrew his services for an extensive period in 2018. He accepted in evidence that he was not under the direction of the Respondent during that time. His evidence was that he would take the consequences of his actions.
109. In Karshan, the Supreme Court notes that the question of whether there is a legally enforceable duty to do the work is of relevance to considerations of control, as the absence of such an obligation suggests a degree of independence that might militate against employer control and is consistent with the worker being engaged in his own trade, not someone else’s (Karshan, paragraph 248). In this case, the Respondent did not have the power to direct the Complainant to carry out his statutory duties to hear assigned cases or complete outstanding decisions. These factors point to greater control on the Complainant’s part indicative that he was a free agent carrying on business on his own account, rather than an employee in an employment relationship.

Did the Respondent exercise sufficient control over the Complainant in this case?

110. The Court must consider whether the extent and degree of the control exercised by the Respondent over the Complainant when he was assigned duties - if no other factors were taken into account - is consistent with him being employed under a contract of service. Aspects of the relationship between the parties, like independence and supervision of a worker when carrying out duties, are less relevant to the Court’s considerations in the circumstances of this case.
111. The Respondent exerted control over some aspects of the relationship. The Complainant had to indicate his availability over a six-week period in advance. He had no right of substitution or opportunity to negotiate his fee. When performing his duties, the Respondent organised all aspects of the hearings and so controlled when the Complainant performed services. He was required to comply with procedures relating to the operation of the service. 
112. By the Complainant’s own evidence, other elements more typically found in an employment relationship were not subject to control by the Respondent. The Complainant could decide when and if he wished to work and, to an extent, where he worked. He had greater control and flexibility over his working arrangements than employees of the Respondent. He had no obligation to engage in duties outside of performing his statutory function. While he provided an important core service, he was not integrated into the Respondent organisation. He was not subject to performance management or attendance policies. He was not obliged to attend meetings or training days.
113. A key question is whether the Complainant can be considered to be in business on his own account, as the degree of control exercised by an employer over a person in business on their own account is less than that exercised over an employee. The Respondent’s contention that it had no control over directing the Complainant to undertake work assigned to him was borne out by the Complainant’s actions when he withdrew his services for a three-month period in 2018 in response to the dispute about contract terms, and again on 12 July 2018 when he refused to proceed with an assigned case which led to its cancellation on the day. The Complainant gave clear evidence that he was not working under the direction of the Respondent at that time.
114. In the Court’s judgment, the Respondent did not have the power to direct the Complainant in the work that he was required to do. The Complainant acted as a free agent to work as and when he chose. His actions in withdrawing services were more akin to a self-employed person and the Complainant’s control over the working relationship was more indicative of a contract for service rather than an employment relationship. The Complainant did not perform services under the direction of the Respondent and, in that regard, his relationship with the Respondent differed substantially from one between an employer and an employee and cannot be deemed an employment relationship.
115. Having regard to the submissions made and evidence tendered in this case, the Court concludes that the Respondent did not exercise sufficient control over the Complainant to render the agreement between the parties one that is capable of being an employment agreement.
116. The5-step framework set out by the Supreme Court Karshan identified the first three questions relating to consideration, personal service and control as filters or threshold requirements which, if answered negatively means that there can be no contract of employment. As the Court has found that the Respondent did not exercise sufficient control over the Complainant to be consistent with him being employed under a contract of service, it is not necessary for the Court to consider the remaining questions posed in Karshan.
117. Finally, the parties in this case relied upon extensive jurisprudence from the EU, Irish and UK Courts addressing both preliminary and substantive issues. The Complainant relied on the ruling by the CJEU in 393/10 Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs, whichaddressed a preliminary question on the employment status of UK part-time judges remunerated on a fee basis for the purpose of the Framework Agreement on part-time work. Unlike in this jurisdiction, UK judicial officeholders were excluded from the protections of the Part-time Work Directive. The Complainant further relied on the UK authorities of Gilham v Ministry of Justice [2019] UKSC 44 October 16, 2019, and Perceval-Price v Department of Economic Development [2000] IRLR 380. In both cases judges were held to be a “worker” for the purpose of EU law. The Court did not find these authorities to be persuasive, given the different factual matrix in those cases.
118. To conclude, having regard to the facts and authorities presented and the evidence tendered, the Court finds 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. It follows that the relationship between the parties was not one capable of constituting an employment relationship. For the purposes of the 2001 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. The Court is satisfied that the Complainant in this case did not enter or work under a contract of employment with the Respondent.

Finding

119. The Court is satisfied that the Complainant did not enter or work under a contract of employment with the Respondent. The Court finds the complaint under the 2001 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.