Recommendation

Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00005957

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Catherine Byrne

Date of Hearing:             21/05/2026

Procedure:

1. In accordance with section 13 of the Industrial Relations Act 1969 (as amended), this dispute was assigned to me by the Director General. At a hearing on May 21st 2026, I made enquiries and gave the parties an opportunity to be heard and to put forward their positions in relation to the dispute.  In accordance with section 8 of the Industrial Relations Act 1990, the parties are not named in this Recommendation but, are referred to as “the worker” and “the employer.”
2. The worker represented himself at the hearing. On behalf of the employer, on February 19th and April 7th 2026, Rowley Law Solicitors wrote to the WRC and stated that the worker was not an employee of the employer and that he was not entitled to seek relief under the Employment Equality Act 1998.  This matter has been submitted under the Industrial Relations Act 1969 and I have decided that I have jurisdiction to conduct an investigation.  Despite being on record and on notice, the solicitors did not attend the hearing at the WRC.

Background:

3. The worker is a financial crime analyst. The employer is an employment agency with which the worker was registered in March 2025 when he was assigned to a role in a consultancy firm.  In September 2025, he informed the HR department in the firm that he did not intend to renew his contract when his first six months expired.  He was due to leave on Friday, September 26th.  The worker told me that, when he was at work on Friday, September 19th, a manager in the consultancy firm slapped him violently on the shoulder and neck area and questioned him about why he hadn’t renewed his contract.  Although he continued working, he said that he got a headache and severe pain.  He said that the assault caused a worsening of pre-existing medical conditions including back pain and ligament injury arising from a car accident. 
4. On Monday, September 22nd, the worker had a meeting over Microsoft Teams with two managers from the agency that assigned him to the consultancy firm, the employer in this dispute. He said that the call was recorded.  The response of one of the managers was that what the worker referred to as a “slap,” may have been a “friendly tap.”  The worker disputes this description of what occurred; he thinks that the slap was intentional because the manager was unhappy that he was leaving.  He said that one of the agency’s managers advised him not to return to work in the consultancy firm.  When he expressed a concern that he wouldn’t be paid for his final week, the manager said that he would ask the client if they would pay him for the days not worked and, in the end, he was paid for one week while he remained at home due to illness.
5. On Tuesday, September 23rd, the worker sent a report of the incident to the employer. In his report, he described being hit by the manager in the consultancy firm and being questioned aggressively about why he didn’t renew his contract and if there was something wrong.  He claimed that “this shows an intentional act of intimidation and abuse of power to emphasise the imbalance of power.”  He asked for the CCTV footage of the incident to be examined and for it to be investigated.  The following day, a manager from the agency confirmed that the worker’s report of the incident had been sent to their client.  
6. When he didn’t hear any more from the employer, on November 21st, the worker wrote again to one of the two managers. He repeated his request for a copy of the CCTV footage of the incident in the office where he worked on September 19th 2025 and for the outcome of the investigation into his report of the assault.  On November 26th, he was informed that the CCTV in the building “is not working.”  Following a telephone conversation with the agency manager that day, he wrote and said that he would initiate legal action regarding workplace harassment “including physical assault and intimidation” that occurred while he was at work with the employer’s client on September 19th.  He said that he had been out of work for two months, and that he had suffered financial loss and persistent emotional distress.
7. On December 17th 2025, the worker said that he reported the incident to the Gardaí at Pearse Street Garda Station. On December 23rd, he submitted this dispute to the WRC for a recommendation as to how it might be resolved.
8. On February 19th 2026, having been notified of the submission of the worker’s dispute, Rowley Law Solicitors wrote to the WRC. The solicitors asserted that the complainant was not an employee of the agency and that he “provided services to our client pursuant to a contract with a third party.”  A copy of an “Associate Agreement” was provided by the solicitors in which the worker is referred to as an associate providing his services through a limited company, “X Consulting Limited.”  The agreement states that he agreed to work for the employer for a fee of €170 per day and that payment was made on foot of invoices received from X Consulting.  The duration of the agreement was for six months, from March 24th until September 26th 2025.  As I have already stated, although this dispute was submitted under the Industrial Relations Act 1969, the solicitors said that the worker was not entitled to seek relief under the Employment Equality Act 1998. 
9. On March 31st 2026, I wrote to the worker and explained that my authority under the Industrial Relations Act does not extend to conducting an investigation between a self-employed contractor and their employer. The worker replied on April 1st and submitted that “the practical reality” of his engagement was “materially consistent with an employment-type relationship rather than a genuine independent contractor arrangement.”  He clarified the objective of his referral to the WRC:

“I also wish to clarify that my referral to the WRC is not made for the purpose of seeking a criminal finding or compensation in relation to the incident of 19 September 2025. Rather, it concerns the industrial relations dispute arising from the incident, the subsequent breakdown in the working relationship, and the manner in which my concerns were handled.”

On April 16th, I wrote to the worker (copying the employer) and informed him that I would proceed with an investigation into his dispute and that the hearing would take place on May 21st 2026.

Conclusions:

10. As no one attended the hearing to respond to the worker’s case that “the practical reality” of his relationship with the employer is that of an employee, I must reach a conclusion on this matter based on what the worker told me at the hearing and the documents he provided as background to his dispute. I must also consider the employer’s position, submitted in the letters from Rowley Law Solicitors on February 19th and April 7th 2026, that there was no contract of employment between the worker and the employer.

The Status of the Worker

11. The employer sources and places qualified professionals in client companies. Its business activity is encompassed by the definition of an “employment agency,” as set out at s.1 of the Protection of Employees (Temporary Agency Work) Act 2012: 

“employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person[.]

The employer (“a person”) assigned the worker (“an individual”) to work under the direction and supervision of a consultancy firm (“a person other than the first mentioned person”).  The worker has a grievance with the employer due to its failure to investigate his allegation that, on September 19th 2025, he was assaulted by a manager in the consultancy firm.

12. Clause 10 of the “Associate Agreement” provided to me by Rowley Law Solicitors states:

“Nothing in this contract shall be deemed to create the relationship of employer and employee between (name of the Agency) and the Associate and the Associate’s staff.”

Based on the facts presented to me, I am not satisfied that this clause has any relevance to the reality of the relationship between the worker and the employer.  As we are concerned here about his status not as an employee but as a worker, within the meaning of the Industrial Relations Act 1969, it is important to examine exactly what that definition encompasses.  The meaning is set out at s.23(1) of the Industrial Relations Act 1990:

In the Industrial Relations Acts, 1946 to 1976, and this Part, “worker” means a member of the Garda Síochána referred to in subsection (1A) and] any person aged 15 years or more who has entered into or works under (or, where the employment has ceased, worked under)] a contract with an employer, whether the contract be for manual labour, clerical work or otherwise, whether it be expressed or implied, oral or in writing, and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour including, in particular, a psychiatric nurse employed by a health board and any person designated for the time being under subsection (3) but does not include -[1]

The worker was recruited by the employer and I am satisfied that, consistent with the definition above, he had “a contract personally to execute” work for their client.

13. Under the heading, “Interpretation,” s.1(1) of the Industrial Relations (Miscellaneous Provisions) Act 2004 states that,

“employee” has the same meaning as “worker” has in section 23 of the Industrial Relations Act 1990[.]

Although, when investigating a dispute under 1969 Act, the protocol is to refer to an employee as a “worker,” by 2004, it seems that the terms were interchangeable.

14. Most employment law practitioners agree that the October 2023 decision of the Supreme Court in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza[2] (“Karshan”), ushered in a new clarity and rigour concerning the determination of the employment status of a worker. Considering the agreement between this worker and his employer, no comparison can be drawn between his circumstances and the working arrangements of the Domino’s pizza delivery drivers.  Unlike the drivers, he was expected to work for a specific number of hours in a specific place for five days every week.  He earned a fixed daily rate and the employer agreed to employ him for a fixed-term of six months.  While the mutuality of obligation test is no longer as critical as it was before Karshan, it is my view that it remains an important criterion for determining employment status and, in the worker’s case, the degree of mutual obligation in his relationship with the employer weighs more heavily in favour of him being an employee rather than an independent contractor.
15. The Code of Practice on Determining Employment Status was developed by the Department of Social Protection and updated in October 2024 in the wake of Karshan by an interdepartmental group comprising the Department of Social Protection, the Revenue Commissioners and the WRC. The Code provides guidance on the applicability of the Karshan framework to individual circumstances.  Under the heading, “All the Circumstances of the Engagement,” at clause 5.4, the Code states:

“While a detailed written agreement may carry significant weight, efforts to describe a relationship in a particular way which differs from the day-to-day reality, in order to circumvent or frustrate the operation of statutory provisions, will be challenged.  Additionally, terms of a written contract, which seek to describe the legal consequences of rights and obligations or conclusions of law, rather than defining the rights and obligations of the parties to the contract, may be disregarded.  Phrases such as ‘as a self-employed contractor you will be responsible for your own tax’ will carry little weight.”

16. It is my view that the phrase at clause 10 of the “Associate Agreement” between the worker and the employer which seeks to exclude the reality of the worker’s relationship with the employer carries no weight. I am satisfied that the relationship between them was that of an employee and an employment agency and, in this regard, his contract is consistent with the term “a contract personally to execute any work or labour” which is included at s.23(1) of the Act of 1990.  I am satisfied that his status is that of “a worker” and that he is entitled to bring this dispute to the WRC for investigation.

The Incident on September 19th 2025

17. My role is not to investigate the incident that occurred on September 19th 2025 when the worker alleges that he was slapped hard and questioned aggressively by a manager in the consultancy firm. My task is to consider how his complaint was dealt with by his employer and to make a recommendation about how the matter might be resolved. 
18. Any reasonable employer faced with the same circumstances would, in my view, confront their client with the worker’s allegation and seek an explanation and an apology. There is nothing to indicate that this occurred and the only response provided to the worker was a statement that the CCTV wasn’t working in the building.  I find this difficult to believe because the client operates from a modern office and the worker and his manager were engaged in the sophisticated business of investigating financial crime.  In the absence of any response from the employer, I have concluded that they did not investigate the worker’s claims to avoid any adverse impact on their relationship with their client.  This was unfair, unreasonable and detrimental to the status of an agency worker who, in this case, was treated as if he was less entitled to a safe place of work compared to direct employees. 

Recommendation:

19. Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
20. At this point, almost one year after the incident on September 19th 2025, it is my view that there is little merit in the employer opening an investigation into the worker’s complaint. The alleged protagonist may no longer in the client’s employment and I assume that any CCTV record will have been deleted.   Although the worker indicated to me that he wasn’t seeking compensation, this is the only recommendation I can reasonably make.  I recommend therefore, that the employer pays the worker compensation of €5,000, equivalent to approximately eight weeks’ net pay.       

Dated:   31st August 2026.

Workplace Relations Commission Adjudication Officer:  Catherine Byrne

Key Words:  Employment status, assault, investigation, safe place of work

[1] The remaining subsections refer to State employees and are not relevant to this dispute.

[2] The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza, [2023] IESC 24