ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00057818

Parties:

	Complainant	Respondent
Parties	Mary Lynch	Department of Education

Representatives

Des Kavanagh Des J. Kavanagh HR Consultancy Limited

Jason Murray, BL instructed by Eileen Burke Chief State Solicitors Office

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00068851-001	16/01/2025

Date of Adjudication Hearing: 19/11/2025

Workplace Relations Commission Adjudication Officer: Donal Moore

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

At the first hearing, the parties were put under notice of the decision in the Zalewski case, that their evidence would be heard under oath or affirmation and of the penalty for perjury. Additionally, the parties were informed that they would be afforded an opportunity to cross examine witnesses and the hearing was to be held in public; the parties offered me neither objection nor reason to have the hearing held in private.

Accordingly, the witnesses were advised of the penalty for perjury and witnesses made an affirmation at that time to be truthful with the Commission.

The first Hearing was attended by the Complainant, their representative Mr Kavanagh and Mr Lynch.

Mr Murray (BL) appeared for the Respondent (Department of Education and youth (DEY)) instructed by Ms Burke from the Chief State Solicitor’s Office (CSSO). Also in attendance were Mr Bohan (DEY) and Ms Gildea (DEY). There were other parties from the second Respondent present, and I have chosen, for convenience, to leave them unnamed on this decision as they are not parties to ADJ57818.

This second hearing was attended by the Complainant, their representative Mr Kavanagh and Mr Lynch.

Mr Murray (BL) appeared for the Respondent (Department of Education and youth (DEY)) instructed by the Chief State Solicitor. Also in attendance were Mr Bohan (DEY) and Ms Gildea (DEY).

For the record, this hearing was in parallel with another Complaint, from the same Complainant against another party under a separate Adjudication number. This decision has no bearing on the status of that complaint.

This hearing was a continuation of the first and separated from the other party to the claim of the DEY Respondent, that they were not the employer in this matter.

In coming to my decision, I have fully considered the oral and documentary evidence tendered by the parties, and the written and oral submissions on behalf of the parties.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ per McMenamin J. in Nano Nagle School v Daly [2019] IESC 63

Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute. In concluding the hearing, I checked with the parties as to any other details they required me to be aware of and having satisfied myself this was the case the hearing was formally closed.

Background:

There are two respondents named by the Complainant, the first is the school they work for and the second and subsequent party is DEY. The initial hearings were joined for convenience.

The Respondent (DEY) made a preliminary submission on the day of the hearing and informed me that the Respondent had not seen the complaint form and on asking the Commission for it were told it was not available, or non-existent. I adjourned that matter to further investigate the origin of the confusion. The result of those inquiries have been made known to the parties under separate cover.

Having satisfied myself with the fact that the parties were on notice, we resumed addressing the issue of employment status between DEY and the Complainant. The Complainant made a submission, as requested by me, to the single question posed, of the employment relationship between the Complainant and DEY.

With the opening of the two cases before the hearing the Complainant expressed a view that the evidence put forward at the hearing was unknown to them and that they were not a lawyer. On that basis and in an abundance of fair procedures I offered the Complainant an opportunity to adjourn to review the material, but to do so would likely delay the hearing concerning the other Respondent. Having taken a short adjournment, the Complainant assured me that they would not require further time and expressed a wish to continue with the hearing.

Summary of Complainant’s Case:

It is the Complainant case that at the first hearing, that DEY asserted that it was not the Complainant’s employer—a position the Complainant found difficult to accept.

The Complainant challenges the claim on several bases:

1. The Complainant was paid directly by DEY while working at second Respondent premises

2. In September 2025, DEY issued her a Superannuation Certificate explicitly naming DEY as her employer.

3. DEY issues circulars that govern key aspects of employment, including staffing levels for role held by the Complainant, as confirmed by the DEY Minister in December 2023. The School Principal informed the Complainant that the Department instructed her not to offer another fixed-term contract.

4. DEY retains authority to approve or reject employment contracts.

Based on these points, the Complainant argued that the Department exercised significant control over her employment, meeting the criteria outlined in the Department of Social Protection’s Code of Practice on Determining Employment Status.

The Complainant was paid by the Department, provided personal services under its rules, and was clearly not self-employed. No legislative provision was identified that would negate her employment status in relation to the Department.

The Complainant maintains that DEY had an employment relationship with the Respondent either as her employer or as a joint employer.

The Complainant cited “Louise O’Keeffe”, more properly known as O'Keeffe v. Ireland [GC] - 35810/09 Judgment 28.1.2014.

Summary of Respondent’s Case:

It is the Respondent case that the Complainant is not an employee of DEY.

The Respondent did not submit any further documents to the Commission beyond their first submission in July. However, the Respondent did open two precedents to the hearing and the Respondent set out that the Louise O’Keefe case was not relevant to the hearing, it being an ECHR case on the positive obligations of the state in 1978. It is not in any way relevant to the issue at hand.

The Respondent set out that it is largely agreed there is a tripartite arrangement between the parties to the effect that the distribution of salaries lies with the Department, but this was not an employment relationship. However, on opening The Minister for Education and Skills v The Labour Court (Respondent) and Anne Boyle and Committee of Management of Hillside Park Pre-School [2018] IESC 52the Respondent argues that this case is on all fours with the current matter.

In Summary, the Respondent contends that the Supreme Court decision in Boyle clarified that the Minister is not the employer in cases where the relationship is based solely on funding arrangements. The ruling emphasizes that employment status depends on a direct contractual relationship, not on who provides funding, as DEY does in this case.

The Respondent then opened Department of Education and Piggot (TED255). The Complainant in that case set out that they were employed as a home tutor by the Department and despite his “long-standing service”, he had never received a contract of employment. The Complainant relied upon the Grant Scheme for consideration and the Respondent in that case set out they were not the Complainant’s employer within the meaning of the 1994 Act.

In that case the funding element of the relationship was not enough to create an employment relationship.

Findings and Conclusions:

The matter to be considered here is if the named Respondent is an employer and/or an associated employer as the Complainant sets out. The Complainant have put forward documentation in terms of the Complainant payslip, superannuation statement and that she works to the policies and rules of the department who she sets out exercises control over her employment.

In The Minister for Education and Skills v The Labour Court and Anne Boyle and Committee of Management of Hillside Park Pre-School [2018] IESC 52 Clarke, J, set out the tripartite relationship that exists between School BOM their employees and the State. In that case the issue was addressed as to the payslip where they are paid directly by the Department and such terms and conditions agreed from time to time between the state and the teacher unions. It specifically addresses the matter of responsibility of a funder versus and Employer

In that case a Rights Commissioner found that the Complainant was not employed by the Minister and nor was the Minister an associated employer. In the subsequent appeal, the Labour Court overturned this and found the Minster was the employer and the case went to the High Court and the Court of Appeal, all holding that there was an employment relationship, before being put in front of the Supreme Court.

In the Supreme Courte the core issue, like the present matter, hinges on whether the Minister could be considered to have a contract of service with Ms. Boyle, given the complex tripartite relationship between the Minister, school management, and teacher.

It was found by the Supreme Court that the relationship does not amount to a contract of service for several reasons, but key was her terms and conditions were not fully controlled by the Minister, as other employers under the same grant scheme offered better benefits.

In applying the logic of Boyle, it is clear to me that the Minister had funded the employer with whom the Complainant in this case had an actual employment relationship. Extrapolating this, the employees of the Children’s Hospital or St James are not employees of the Minister for Health, although 100% of their salaries may be derived from a Government grant in that Minister’s Department. Likewise, in the current matter, the Minister has no control over the work of the Complainant.

The Minister may, of course, direct how many teachers of any type are to be employed, and the Minister has a technical role (through other Government Departments) in the negotiations of terms and conditions for all teacher collectively and not individually. To accept that the Minister for Education is a joint employer in this case, would be to say that the Minister Public Expenditure Infrastructure Public Service Reform And Digitalisation or the Minister for Finance could also be the employer. It is not funding alone that makes for the Employer, nor the Superannuation. It is the day-to-day control of the work for which the Minister has no responsibility and rest solely with the school employer.

For the reasons outlined above, I can only conclude that the Complainant has not at any material time been an employee of the Minister for Education or their Department.

This has no bearing on the Complainant relationship with, and their complaint related to, the school employer under the cover of a separate adjudication number.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons outlined above I cannot conclude that the named Respondent is the Complainant employer, and I must find the complaint not well-founded.

Dated: 28/11/2025

Workplace Relations Commission Adjudication Officer: Dónal Moore

Key Words:

Day to day control, employer status, joint employer, associated employer,