Worker

Employer

Anonymised Parties

An Office Administrator

A Public Body

Representatives

Peter Glynn SIPTU

Human Resource Manager

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00005265

02/10/2025

On October 2, 2025, SIPTU raised a Dispute for investigation on behalf of the worker. The claim cantered on seeking recognition for time spent working at the Employer location to be regarded as direct employment.

The time in question is a five-year period, June 1989 to September 1994, after which the worker commenced in direct employment from which no ambiguity remains.

The issue has come into sharp focus due to a paused Internal Disputes Resolution by a government minister. Doubt has been cast on the workers employment status resulting in an impasse.

On 21 October 2025, the Employer agreed to participate in a WRC Investigation in accordance with Section 13 of the Industrial Relations Act, 1969. This position altered further into the case.

The hearing was scheduled for May 15, 2026.

On 12 May 2026, concerned at the clear absence of both parties’ submissions, I wrote to the parties seeking prepared submissions.

I am the Adjudicator assigned to hear this case on Friday next, May 15, 2026.

Neither Party has submitted the requested submissions in support of or in opposition to the claim.

I have received some papers authored by the Worker; however, these do not meet our requirements.

I require a SIPTU and Employer compiled submission in the event that this matter is not resolved prehearing.

I would appreciate if both parties could prioritise their written submissions and forward immediately to PRU@workplacerelations.ie citing ADJ 62283.

1. I require details of the progression of an internal grievance in pursuance of clarification of employment status.

2 I require details of all documentation in each party’s possession which they seek to match with commencement or renewal of employment, or otherwise.

3 PRSI records for the employment tenure. Did Employer pay employer PRSI?

4 details of annual leave / sick leave / other absences

5 All documentation in pursuance of Superannuation

6 Wage Slips pertaining to the employment.

7 Service Level agreement with Agencies, if any.

This list is not exhaustive but is a mere outline of where my investigation sits at present.

I would welcome your participation in this investigation and look forward to meeting the parties at hearing.

Yours sincerely,

Adjudicator

SIPTU introduced the claim on behalf of the Worker, who had commenced work at the Employer Plant on 12 June 1989.

The worker currently works as an Office Administrator on 35 hrs per week. She commenced recognised employment in September 1994

The Worker has come to the WRC to seek a Recommendation that she be recognised as a direct employee of the Employers from June 1989 to September 1994, rather than the historical misclassification applied to her as an Agency worker.

This is necessary to prompt and enable her access to superannuation for those years.

The worker had progressed this claim through the Internal Disputes Resolution, which had been paused for want of clarity on her legal standing as an employee or otherwise.

She came to the WRC to prompt clarity in this area to kick start this ongoing investigation by the Government Ministers.

It is the Workers stated position that she was at all times an employee of the employer and should be recognised for that reality.

She has never been a contractor or an Agency worker and carried an anger and impatience that she had been wrongly categorised by the employer.

The background to the circumstances of the case originated against a staffing moratorium and budgetary reduction in 1988, that impacted in the early days of the amalgam and merger of this public body. At that time there had been a pronounced exodus through voluntary exit schemes and no visible plan to retain an optimal workforce.

There were some internal concerns regarding “who was going to do this essential work? “

“An historical alliance with Company XYZ was formed and they served as a host company for workers who were then placed to work on the named Employers site.”

This continued until September 1994 when the worker became a fully-fledged direct employee, and no issue arises from that day forward until the worker began to chase employee status for what she refers to as the “ghost years “from 2022 onwards.

This case is a retrospective analysis of the period of June 1989 to September 1994. The Worker had been impeded in raising this through proper channels as she had been wrongly informed that she was an agency worker.

The Worker was paid by XYZ, a Laboratory supply company, as a sidestep to the restrictions imposed by a global moratorium on staffing. A purchase order was raised for consumables, which were not supplied and the purchase order referred to staff costs. The colloquial name for this cohort was “BD workers “This practice ceased following high-level intervention in 1994.

The Worker submitted that the employer was then fined by the Government but has not demonstrated a proof of this.

The Union argued:

1 Company XYZ was not an Employment Agency, but a conduit for placing workers on the employer’s workplace. The worker contends that she applied for a job with the employer named in this case, was interviewed by the employer and was placed by XYZ to work where she has worked since 1989.She did not receive a contract of employment from either this Employer or Company XYZ.

She has no connection with XYZ in time or place outside receiving payment. She was placed on Company XYZ books to “circumvent the head count suppression directed from Government “.

2 The Worker was directed and controlled by the employer in this case. Leave was authorised and recorded by this company. Her Line Manager was employed by this employer. There was no Collective Agreement on outsourcing in 1989 or afterwards.

Chronology of the dispute

1 September 2024, Pension claim, IDR Circular 16/2020 followed an unsuccessful grievance.

2 Employment status needs clarification, Minister.

3 Analogous cases, EAT, Unfair Dismissals Act 1977.

Background at hearing:

In June 1989, the Worker attended an interview on the employer’s site and accepted a 6-week placement in Administration, which was later extended. The Worker was paid by company XYZ cheques and this continued as she moved to the library at the employer plant. She was not provided with a contract.

The Worker was keen on career progression. On recommendation of exiting Library staff, she undertook a distance learning library course, for which she received an increment recognition by the employer, while she absorbed the fees.

A review of the library services conducted in October 1990 placed the workers library as the highest rating. She was the sole worker there.

The Worker went on to represent the Library in Holland and her application for £250 was sanctioned by Mr A, Head of Dept, inclusive of a pay number. The worker was the cog around which the library wheel prospered to 104 students in 1994.

The Worker applied for the role of clerk typist following her removal from her XYZ funded position on 31 August 2024. Once more, she was interviewed by the Employer.

She was re-employed back to her role in the library on 28 September 1994 on a three-year employer funded contract. She sought incremental recognition for past service but was not facilitated. She received £1,000 payment for accrued overtime from the employer.

In May 1996, the worker was offered a permanent position inclusive of incremental recognition for past service, Clerical Grade 1 scale.

The Worker outlined that the employer has wrongly classified her as an Agency worker, but she was never employed by an Agency. She had been unable to satisfy the employers stated requirement that she demonstrate either a contract or pay slip linked to the employer in her quest for employment recognition. Company XYZ did not hold an employment agency licence, nor pay VAT.

19 September 2024 Inter departmental correspondence.  

·        Not possible for DPER to make a determination in these appeals.

·        Appeal centres on aspects of employment law rather than on the application of pension scheme rules.

·        The Tribunal decision related to a specific individual only and the Minister cannot extend that decision to other cases in the absence of a legally binding ruling to that effect.

·        In the event of such a ruling being granted which resolves the employment status of any of the appellants or other individuals who were employed on similar contracts, the Minister may then be in a position to consider an appeal should a dispute in relation to pension benefits remain to be resolved.

In conclusion, the Union contended that the worker in this case deserved a recognition of employment status for 1989 -1994 and sought a Recommendation in that vein.

This employment occurred as a “means of getting the job done “in a time where the job was essential and the hiring process very opaque. The Employer used an Agent as a vehicle to get the job done. This was not an Agency in employment terms.

In response to my post hearing requests for clarifications, the Union responded with some additional clarifications.

1 I have read the IDR application, currently marked impasse.

2 Company XYZ did not operate a pension scheme which included the worker.

3 No records on the fines attributed to this employer.

4 Clarification on payment of over time by the employer. No Collective Agreement on overtime.

5 1988 Act which established the Employer.

6 Redundancy scheme 1988 Circular

The Union were unable to point to a precedent for resolution but were aware of similar profiles within the Technician and Clerical workforce.

The Employer is a Public Body, established by statute in 1988 and operates a Superannuation Scheme.

The Employer contested the claim made by the worker and marked it as misconceived and outside the scope of Section 13 of the Industrial Relations Act, 1969.

By way of written submission, the Employer representative outlined that the claim centred on a bid to secure recognition as an employee and by association, superannuation for 1989 -1994 when the worker was employed by XYZ, a separate entity to the employer.

While the Employer had agreed to participate in the investigation, it placed authority to decide this case at the feet of Government Ministers, ultimately Department of Public Expenditure  and Reform (DPER) as it was impossible for the WRC to generate a “legally binding ruling “as Recommendation under Industrial Relations Act, 1969 was neither justiciable, nor had it legal effect.

The Employer had no record or file which demonstrated that the worker was employed by the Employer at any time from 1989 to September 1994.

The Employer had been unable to admit the worker to Superannuation for the requested years, and the matter was now before DPER at Internal Disputes Resolution stage. September 2024.

If permitted employee recognition and by association inclusion in superannuation, the complainant would carry a €5,000 repayment for past service. She paid PRSI A class at company XYZ.

1 Employment Law was at issue rather than pension scheme rules.

2 The WRC was not at liberty to make a Recommendation purporting to be a determination of employment status “where such recommendation is intended to be used as a basis for legal right to membership of a pension scheme “.

DPER has sought a “legally binding ruling “to consider the appeal.

The worker placed a heavy weighting on the application of the 1997 EAT case discussed at hearing.

The Employer contended that this could not be regarded as having precedential value.

The Employer recognises the Supreme Court case of Revenue Commissioners v Karshan Midlands ltd t/a Dominos Pizza [2023] IESC 24 but disputes its application in the facts of this case.

The Employer spoke frankly at hearing that it was simply impossible to resolve this claim in favour of the worker. They confirmed that they had spent a considerable period seeking to resolve the claim.

In response to my requests for post hearing clarification.  

The Employer forwarded their response to IDR which indicated that they had no proof of the Workers permanency or pension status at the business.

They added the 1988 Act.

There were no records of direct payment to the worker or a Collective Agreement.

There were no records of the Employer having had to pay a fine for “ghost workers “.

They also added a completely redacted fax record / template which headlined August 1994 and carried reference to a draft letter which captured a decision to terminate the Agreement with your Agency.

it was stated in a meeting on 28th July 1994, that all of these staff “will be notified (through the employing agencies) that their services will not be required after 1st September”.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I am grateful to both Parties for the attention they have given to this case. I can see that the parties have inherited a difficult dispute. I did not have the true Architect, Engineer or Building crew of that dispute available to me.

To set the scene, I want the parties to consider the parameters of my role by reflecting on what exactly is a Trade Dispute, the triggered action that convened the hearing.

Section 3 of the Industrial Relations Act, 1969 describes:

The expression trade dispute means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person …

This sets the scene for the narrative.

In this I am envious of the historical ingenuity of Hansel and Gretel on their first attempt to protect their way home by distribution of white traceable stones. I am afraid, I must now empathise with their second attempt to repatriate when their trail of breadcrumbs was usurped by birds, causing an impasse but eventual escape.

I also have been bereft of an easily discernible way home on this claim, there were no proverbial crumbs to guide me. However, I have persevered.

Firstly, I am being asked by the Union to make a Recommendation that the worker can be recognised as an employee for the submitted period of June 1989 to September 1995. I am not being asked to step into the shoes of the Minister and grant her automatic access to the pension.

Minister for Education and Skills v Boyle [2018] IESC 52

Secondly, the Employer has opposed that claim by pointing to the limitations surrounding what an Adjudicator can reasonably achieve under the Industrial Relations Act 1969. However, the Employer did not object to the proposed investigation when they returned their consent on 21 October 2025

 Mc Donncha and Katie Sweeney v Minister for Education and Skills and Attorney General [2013] IEHC 226 Judicial Review. Hogan J.

Holland v Athlone IT [2011] IEHC 414

Public Sector Pay agreements not intended to create legal relations.

 “But operate in the Political and Industrial Relations spheres “

I refer to these cases as interesting Legal opinions on what is the distinction in Legal thinking regarding employment rights disputes and IR thinking regarding employment-based disputes that may arise in the context of a Public Sector Agreement.

Hogan J identified the Labour Court as an IR Mediator which adopts a purely pragmatic and practical approach in the context of a Section 26 referral (from conciliation).

 As the parties are aware, this claim is at first instance at Adjudication, and the Labour Court is our appellate body.

My attention was drawn to an extract from the Labour Court mission statement on IR Disputes.

“In the field of industrial relations, the States concern is to provide machinery so that disputes can be resolved before developing into great tests of strength.

This implies that the employer and the worker would do their level best to find a solution before turning for outside help and that, if they invoke outside help in the form of the procedures and machinery provided by the state, they will use it for genuine purpose of reaching a peaceful solution “

Dr Patrick Hillery, 1969

 My role in this dispute is also to seek to resolve it, while maintaining Industrial peace.

I am troubled by the minor and low level of investigation conducted by the Employer into the employees claim for retrospective employment status. She was asked to provide documents which linked her to direct employment in the years 1989 -1994.

She has been unable to do so. She was not formally interviewed or interrogated on the topic of the 1989-1994 years. That might have generated a stronger awareness within the public body and cast the worker as an individual in a difficult place.

I wish to chronicle my understanding of what occurred in this case as it really is a Dispute and Difference which is extraordinary.

1 The Employer was established as a Body corporate in September 1988. This followed a dissolution of named entities and an amalgam of two others. It is a Public Body with Ministerial oversight. Staff who transferred maintained their conditions.

1(A) The Worker was directed by one public training body to interview at this employment site in 1989. She interviewed.

 From 1989 to 1994, we saw world changes in the unification of Germany, release of Nelson Mandela and break up of the Soviet Union.

In June 1989, the worker was placed to work on the employer site on the approval of the Employers head of department. She has not vacated that site since.

It appears she was paid by Company XYZ from the start and returned as a consumer durable i.e. a good rather than an employee. This was a mistake. Somebody at some time sanctioned this transaction. I have not met that scribe.

 I have no way of being certain if Company XYZ was a subsidiary of the Employer as permitted under the Act of establishment. I think it unlikely based on both parties understanding at hearing.

On linking  narratives together , I find it more likely that Company XYZ served as an Agent,  not an Agency and  served as conduit for unapproved workers deemed necessary to boost the success of a fledgling government  body bereft of a redeployed workforce to replace the enormous exit of staff which fell from pre-merger 2,300 to 1,400 on merger . The plan was probably well intentioned but now has left a legacy which is caught in an impasse at Ministerial level.

 The challenges of legitimate expectation surrounding continuing employment was addressed in Holland in the context of public service agreements

2. I considered the workers contention that the employer raised a purchase order for consumables with private companies as an umbrella for payment. She told the hearing no consumables were provided but invoices were raised by Company XYZ and met by the Employer. This carried an augmented weighting for PRSI, Tax and Commission.

Company XYZ was not an Employment Agency, nor did it have an input in the workers working life. It was not the Master in the proverbial Master / Servant relationship.

With respect to both parties, neither party can link Company XYZ to the Workers progression through the disputed employment period in any material way outside of pay.

I can recognise that the worker thrived at the employment 1989 -1994 as she was identified as a person of promise by an existing, but exiting librarian and she was supported to become the employer’s well-regarded librarian.

My mind habitually returned to the niche held by Company XYZ in this case, and I wondered just why the Employer has not examined the passage of payments to XYZ for authenticity within this period.? I did not meet anyone from the company as I understand it is no longer trading.

As I have commented on world events, I believe I must record an observation on changes within Commercial Agents as hired intermediaries during this same period.

Council Directive 86/653/EEC 1986 was enforced in law via the EC Commercial Agents Regulations 1994, these applied to the sale of goods on behalf of a principal.

The template which referred to a planned curtailment in commercial transaction shared by the Employer was dated 1994 and signalled an intention to change a business model practiced by the Employer. It did not delineate the workers name or location, so cannot be determinative. However, I mention this as an outsider’s view on how the EU influenced change in Irish Regulations for Agents in Ireland, which coincided with the period being considered in the claim.

The Worker put the EAT case Complainant v an Employer (names anonymised by me) in an Unfair Dismissals Act 1977. She submitted she only discovered its existence in 2021.

The EAT, by majority on 10 January 1997 held

1 the complainant was employed by XYZ November 1989 to August 1994 but had been employed by a different company from 1988, while “under the control of the employer “.

“We are satisfied that since 1988; the complainant was in the employment of the employer. We consider it significant she was initially interviewed by (Head of Dept at Employer) and discounted that she was paid by these conduit companies.”

In a profound statement, the Tribunal identified.

“The element of control was exercised by the (named employer in this case) “

The Parties may wish to revisit this Determination which by majority found the worker was unfairly dismissed and awarded compensation. I am unaware if this was appealed to the Circuit Court.

I have considered all the narratives presented and if I am to be practical and pragmatic , there is simply no set of circumastances which permits me to recognise the worker as a bona fides employee of XYZ in the years being scrutinised .

My investigation has yielded a worker who went to work at the Employers Plant at a time of staffing vacuums in the wake of a large scale exits .

The Employer was a fledgling body corporate having only been established 9 months previously and seemed to have been expected to function on the “ clippings of tin “ in staffing terms .

A creative mind , unbehownst to either party created a Principal / Agent commercial relationship whereby the worker was placed to work at the named employers plant , while being paid from the

 “ invoice arrangement system of goods “

In public sector language , I must conclude that the worker was seconded by the named employer to the XYZ .

Note the case concerning secondment of Cronin v Eircom IELJ [2007] 4(1) for information on the inter action between Eir Ireland and Eir UK in this context .

It is regrettable , that I do not have access to the Service Level Agreement which accompanied the  buisness transaction . I am grateful to the Employer for sharing the template aimed at curtailing this arrangement in August 1994 . It was informative , if not determinative . I have tried hard to explore the triangular relationship  between the worker , the named employer here and XYZ. However the relationship appears to me to a traditional binary employment between the worker and the named employer in this case .

From June 1989 to September 1994 , the Worker became immersed in the ethos and service delivery operated by the named employer in this case . She had no such reprical relationship with XYZ who paid her by cheque .

She is now at the zenith of her career  with the same employer seeking to be recognised for her contribution at the business .

I cannot accept her description of ghost worker as she was simply hiding in plain sight on the employers campus  all those years .She shared their  mission statement and their goals. Both parties gained considerably from their collaboration .

The worker was an unfortunate casualty of an incomplete exit programme which had not made provision for how the work was going to be done at the newly formed corporate body . This was later addressed through structured redeployments in latter day Agreements such as Croke Park Agreements .

In all that I have heard and reflected on, I find that the worker was interviewed by the employer in 1989 ,hired by the employer and immediately seconded to the XYZ Agent without explanatory paper work or securable records/ bread crumbs . This was viewed as a necessary and proportionate measure to ensure success in a fledgling public body . She was not asked to consent to secondment which in reality was a redeployment for viability purposes .There was no male fides involved .

The worker built her career over the next 5 years . The named employer in this case served as patron for that transition through payment of travel, expenses and including over time .

This was a poorly managed secondment , but , in my opinion , a secondment none the less .

It is regrettable that the worker was not invited to participate in a regularisation/ amnesty   process to encompass those years 1989 to 1994 . Perhaps it is something the parties may wish to consider as a vehicle going forward .

In conclusion , I find there is merit in this dispute and I recognise that the worker was an employee of the named employer in this case from June 1989 to her commencement as a direct employee in September 1994 .

I find that she was seconded to the Company XYZ as a contingency for an incomplete workforce through a Principal / Agent arrangement which was not  recorded in writing but operated through the fiscal parameters of the employers cost base .

Employment status 1989-1994