Complainant

Respondent

Parties

Clive  White

St. Laurence O'Toole Gaelic Athletics Club

Representatives

None

David Hoare, Club Chairman

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act, 1977

CA-00073107-001

03/07/2025

The Complainant contends he was an employee of the Respondent within the meaning of the Unfair Dismissals Act, 1977.  He submits that he was initially engaged by the Respondent in 2018 on a self-employed basis but became an employee of the Respondent in March 2023.  He claims he was unfairly dismissed in June 2025.  The Respondent contends the Complainant was self-employed since 2018 until he terminated the working arrangement he had with the Respondent in June 2025.

Oral Testimony of Clive White (on oath)

The Complainant is a physical therapist.  He outlined that he has been involved with the club since 2018.  He had a great relationship with the club.  Prior to 2023 he had an arrangement with the club that he would attend home and away games to provide first aid.  A fee of €80 was agreed per game.  If team management requested, the Complainant also provided physical therapy services one to two days per week at the Respondent’s premises.  A WhatsApp group was set up for players and team management.  At the request of team management, the Complainant made himself available agreed evenings (usually Tuesday and/or Thursday) for physical therapy sessions.  Players booked into a therapy slot on a first come first served basis, or team management determined which players required treatment. 

The Complainant invoiced the Respondent for all games attended and mid-week therapy sessions provided at the end of each month.  The Respondent paid the invoiced amount by electronic transfer.  The Complainant did not provide physical therapy services for any other club.  Outside of his employment with the club, he also operated a taxi and a renovation business.  The Complainant provided any materials he needed for his work.  This included strapping, heat and cold rubs, bandages, plasters, first aid kits, and Vaseline.  If the Complainant could not attend a match or provide therapy, he sourced another physical therapist to step in for him.  

In March 2023, Mr Maher (Treasurer) approached the Complainant.  He said the invoicing arrangement was not working anymore and that he had to put the Complainant on payroll.  The Complainant asked what that meant.  Mr Maher replied that nothing would change in terms of how the work was performed or the agreement between the parties.  The Complainant was also told that any holidays owed to him would be paid at the end of each year.  The Complainant was not concerned about getting holiday pay and did not pursue any holidays owed for 2023 to 2025.  After the Complainant was placed on payroll the working relationship continued in the same way as it had previously.

In March 2025, the Complainant approached the Respondent to request an increase in the match attendance fee from €80 to €90.  He heard nothing for several weeks.  Mr Hoare (Club Chairman) phoned the Complainant on 25th May 2025.  He told the Complainant the fee would not be increased, and that the club was moving forward with another therapist due to an increase in the number of games.  The Complainant asked where that left him.  Mr Hoare responded that he could not guarantee the Complainant what game time he would or wouldn’t get.  The Complainant outlined that he was really taken back and annoyed with the content of the call.  He felt he was being let go via a phone call.  Mr Hoare offered a face-to-face meeting so the matter could be discussed further.  The Complainant declined a meeting and said to Mr Hoare that there was no point in sitting down as Mr Hoare had made up his mind already. 

The Complainant emailed Mr Maher on 25th May 2025 (email opened to the hearing).  He outlined therein that he had spoken to Mr Hoare earlier that day and he wrote “. . . he has informed me that the club want to move forward with another physio can you organise my notice in writing and also my departure date from o tooles I will have to get some information in relation to where I stand as an employee of o tooles for the last few years thank you”.

On 27th May 2025, the Complainant emailed Mr Maher (email opened to the hearing) to ask him how the new arrangement of more than one physio was going to work.  He received no reply.  The Complainant then emailed Mr Maher to ask him for notice.  Mr Maher responded by email telling the Complainant he had not been dismissed.  The Complainant outlined “I didn’t accept I wasn’t dismissed because Mr Hoare said on the call that I was being let go and I took it I was being let go and at a later date when I calmed down, I emailed the club, but there was no response to my emails.  The club said, ‘we are moving forward with another physio’ – what way am I to take that?”.  The Complainant believes he was dismissed on 25th May 2025.

A trainee physiotherapist had joined the club prior to the Complainant’s termination.  She continues to work there.  He could not understand why a second therapist was required as he had covered 60 games in 2024 without issue.

The Complainant outlined that Mr Hoare did not call him on 12th June 2025.

In cross-examination, it was put to the Complainant that he misunderstood what was said to him by Mr Hoare.  The Complainant disagreed.  The Complainant accepted he did not receive any benefits, expenses or annual leave.  A text message was opened to the hearing which was sent to a member of team management.  The Complainant accepted he sent this message.  It read: “howya mark im finished with otooles if u here [sic] of any clubs in need of a physio can u giv me a shout cheers pal”.

The Complainant accepted he was paid a fixed fee per game.  He accepted there was no written employment contract in place.  In response to a question on mid-week therapy sessions, the Complainant stated that these were only conducted at the request and approval of management, and Mr Maher approved all payments for same.  The Complainant confirmed that he provided the plinth in the club for individual treatment sessions.  The Complainant confirmed he sourced a replacement for himself if he was not available.  He added that this did not happen frequently.  The Complainant confirmed he did not seek approval to find a replacement, and that he did not think he had to seek permission for same.  The Complainant confirmed that he secured temporary physical therapy work with another club for 6 weeks commencing July 2025.  The Complainant did not accept that the Respondent had no input into how he operated at the club. 

In response to questions from the Adjudication Officer, the Complainant stated he could not go back to work at the club as the relationship between the parties had broken down.  He outlined that he worked from February to October each year for the Respondent and earned an average of €280 per week during that time.  He outlined that he had not sought to mitigate his loss after the termination of his working arrangement with the club.  In September 2025 he secured a school transport run until May 2026.  He earns €150 per week in this job.  The Complainant did not query the lack of annual leave or employment benefits, as he viewed his role as part-time and limited to matches and mid-week treatments.

Opening Submission

Mr Hoare submitted on behalf of the Respondent that the Complainant is not an employee within the meaning of the Unfair Dismissals Act, 1977 and therefore has no standing to take a case for unfair dismissal.  Mr Hoare outlined that the Complainant does not satisfy the five-stage test in Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24.

Oral Testimony of Mr Maher (under oath)

The Club is governed by an Executive Committee.  The witness is the club Treasurer, and he deals with all financial matters for the club.  The Complainant provided services to the club since 2018.  He was self-employed and he provided invoices to the club for his services. 

Prior to be placed on payroll, the invoices sent by the Complainant had sequential numbering, which led the witness to believe the Complainant provided therapy services to the Respondent only.  The witness became concerned in March 2023 that any misclassification of the Complainant or the failure of the Complainant to pay taxes due on any money received for his services might have financial implications for the club.  It was well known at this time that Revenue was conducting audits of self-employed persons.  A decision was taken to process all payments to the Complainant via payroll.  This was done for administration purposes only to ensure Revenue compliance as the club had no idea if the Complainant was paying tax on monies paid to him.  The arrangement between the Complainant and the club continued as it had previously.  The Complainant received no benefits, annual leave or expenses.  At the end of each month the Complainant invoiced for matches attended.  In 2023 he invoiced for 43 matches.  In 2024 he invoiced for 69 matches.  In 2025 he invoiced for 27 matches.  The Complainant received €80 per match attended.  If a match was cancelled, the Complainant was not paid.  

After the Complainant was placed on payroll, he sent confirmation of the matches attended via email.  He continued to receive €80 per match rather than hourly pay.  The witness knew that the Complainant also had a taxi and a renovation business. 

The witness outlined that he was aware that the Complainant sourced another therapist if the Complainant could not make a game.  However, this had not been authorised at any time by the Respondent.  The Complainant also provided therapy sessions mid-week.  This also was not authorised, and eventually the practice was significantly reduced on the direction of the witness.  The Complainant provided all the materials for his work at his own expense.  The club exercised no control over the Complainant’s work. 

In cross-examination, the witness vehemently denied he told the Complainant in March 2023 that he would be compensated for annual leave.  The Complainant asked Mr Maher why he was never told he did not have permission to source another therapist to fill in for him.  In response the witness replied that it was the Complainant who was paid to do the work, and that the club had not authorised anyone else to do the work in lieu of him as any new therapist must be vetted.  The witness outlined that he does not attend games himself, and he only witnessed one occasion in 2022 when the Complainant had substituted himself for another therapist.  The mid-week treatment sessions had been curtailed as it was being abused by players.

Oral testimony of Mr Paul Jennings (under oath)

The outlined his role as Secretary of the club.  He was involved in the decision to engage the services of the Complainant.  It was agreed the Complainant would invoice for his services in his capacity as a self-employed therapist.  The witness was involved in the decision to place the Complainant on payroll.  This was done to ensure the club would not be held liable for tax should Revenue decide the Complainant was an employee of the club.  The change was merely administrative, and nothing changed in terms of the Complainant’s working arrangement with the club.  The Complainant never sought approval to substitute himself for another therapist. 

The Complainant declined the opportunity to cross-examine the witness.

Oral testimony of Mr Graham Dinh (under oath)

The witness outlined that he is a playing member of the club and player representative.  He outlined the sports he plays with the club.  He outlined that the Complainant provided pitch-side first aid at almost all games, but during the summer when the Complainant went on holidays, another therapist filled in for him.  The witness confirmed that the Complainant only provided sporadic mid-week treatments in 2024.  The Complainant set up a WhatsApp group, showing the evenings and times available for therapy and players booked in for these treatments.  The witness stated that the players had a fund, financed by themselves, out of which they paid the Complainant directly for a therapy session if needed.  Some players might also independently arrange appointments with the Complainant.

The Complainant declined the opportunity to cross-examine the witness.

Oral testimony of Mr Hoare (under oath)

The witness outlined that he was appointed Chairman of the club in October 2024.  In April 2025 he received a request from the Complainant to increase his fee from €80 to €90 per game.   He brought this request to the Executive Committee, and a decision was made not to increase the fee.  On 25th May 2025 he communicated this to the Complainant and also advised him that due to an increase in matches being played, the club intended to source an additional therapist.  The Complainant told the witness he intended to seek advice on his employment.  The witness opened a series of WhatsApp messages between him and the Complainant thereafter.  The witness suggested a meeting with the Complainant, which the Complainant declined. The witness opened a message he received from a manager of one of the teams.  The message was dated 28th May 2025.  In it the Complainant said he was finished with the club.  The Complainant sought a meeting on a number of occasions after 28th May 2025 but as far as the witness was concerned the situation had now “evolved”.  The view of the club was that the Complainant “was saying one thing to others and another to us” (the witness sought to rely on other statements allegedly made by the Complainant to persons not at the hearing – which were ruled inadmissible as hearsay).  The witness did not respond to the Complainant’s requests for meetings as he did not want to jeopardise the position of the club until the Executive Committee met in early June.   The Executive Committee felt that the relationship between the parties had broken down and that the working arrangement was no longer tenable.  On 12th June 2025 he called the Complainant and said “something along the lines that we will move on.  The club intended to part ways with the Complainant”.  The witness added that the “relationship with the Complainant ended on 12th June 2025 and it is my view that he stepped away from the working arrangement”. 

The Complainant declined the opportunity to cross-examine the witness. 

In response to a question from the Adjudication Officer as to what the purpose of his call to the Complainant on 12th June 2025 was, the witness stated it was to draw a line under the working arrangement.

Closing Submission

In closing, Mr Hoare submitted on behalf of the Respondent, that no contract of employment existed between the parties.  Clear guidance has been provided by the Supreme Court in Karshan (Midlands) Limited t/a as Domino’s Pizza v. Revenue Commissioner’s [2023] IESC 24 which ought to be applied in this case.  The Complainant was self-employed and provided a service to the Respondent since 2018.  He  routinely arranged for a third party to carry out services which would normally have been performed by him. Notification of these changes were never communicated to the Club and therefore these were never approved by the Club. The Complainant received payment for these services, and it is unknown how these other parties were paid.  He submitted claims for payment on a retrospective basis and the club had no control of the Complainant’s schedule nor did the Club ever have any input into the manner in which he performed his role. The Complainant provided all materials for the service he provided.  The Complainant was in business on his own account.  He engaged in other enterprises at the same time.  He received a fixed rate for the services he provided to the club.  The decision to pay the Complainant through payroll was for the purposes of safeguarding the Club should any Revenue audit have taken place.  It is clear from the actions of the Complainant that he stepped away from his engagement with the Club.  He communicated this to other parties.  At no point was a relationship of employer and employee in place between the parties and this is reflected in the manner in which the Complainant, as well as other persons engaged by the Complainant, provided services for the Respondent.

Is the Complainant an employee for the purposes of the Unfair Dismissal Act, 1977?

Relevant Law:

Section 1 of the Unfair Dismissals Act, 1977 (as amended) (“the Act”) provides for the following definitions for the purposes of the Act:

“contract of employment” means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing . . .

“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment . . .

“employer”, in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment . . . .”

(Emphasis added)

The distinction between contracts ‘of’ service and contracts ‘for’ services is not always obvious. As noted by the Labour Court in Associated Newspapers Ireland Limited t/a DMG Media Ireland v. Joseph Dunne (UDD2260), the determination of an individual’s employment status in the context of ascertaining whether that individual has standing to pursue claims under employment legislation is a mixed question of fact and law. 

There is a considerable amount of case law on the ‘tests’ to be applied to determine whether a contract is a contract ‘of’ service or a contract ‘for’ services. The judgment of the Supreme Court in Henry Denny & Sons v. The Minister for Social Welfare IESC 9 [1998] is a leading authority on the issue of determining issues of employment status.  The Supreme Court adopted an approach often referred to as the ‘mixed test’ which required a consideration of a myriad of factors including inter alia the degree of control exercised by the party for whom work is being done over the party doing the work; the level of integration of the person into the business; and whether the party could be said to be in business of their own account.

More recently, in a tax related case, The Revenue Commissioners v.Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24, Murray J. for the Supreme Court rejected the notion of a ‘test’ to determine employment status and the over reliance placed on ‘mutuality of obligation’ in determining employment status.  Murray J. concluded that every case turns on its particular facts and that it is necessary to assess all relevant features of the relationship, identifying those features that are and are not consistent with an employment contract and “determining based upon the sum of those parts the correct characterisation” (per Murray J. at [214]).  He noted that when deciding employment over a period, the overarching or umbrella contract may be important (an ‘umbrella contract’ meaning an overarching, open-ended agreement that governs the relationship between the parties, but where work done is paid for on the basis of individual tasks which are paid at a particular and set rate). 

Murray J. outlined that the framework in Ready Mixed Concrete (South East) Ltd. v. Minister for Pensions and National Insurance [1968] 2 QB 497 and developed in Market Investigations v. Minister of Social Security [1969] 2 QB 173 (decisions later endorsed and applied in the Denny judgment) remains a “reliable structure for the identification of a contract of employment” (per Murray J. at [253]), concluding that the question of whether a contract is one ‘of’ service or ‘for’ services should be resolved by reference to the following five questions (at [253]):

1.          “Does the contract involve the exchange of wage or other remuneration for work?

2.          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?

3.          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?

4.          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.

5.          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.”

The first three questions are a filter, and if any of the three questions are answered in the negative there can be no contract of service.  If all three questions are answered positively, the decision maker must then proceed to look at all the facts to ascertain the true nature of the relationship. 

The Code of Practice on Determining Employment Status was revised in light of the Karshan judgment to provide updated guidance in applying the above five-question framework for the determination of the employment status of a worker.  The Code acknowledges that the written or oral contract and the reality behind the contract must be taken into consideration, and that, in some cases a level of dependency can develop between a worker and the end-user over time, so that an engagement that commenced as a contract for services may evolve into a contract of service.   Further, the intention of the parties may be given due consideration but does not on its own determine the employment status for the purposes of employment rights.  The Code acknowledges that a person may be self-employed on one or more jobs and an employee in another.   

Findings:

This is a complaint of unfair dismissal.  The Complainant must be engaged under a ‘contract of employment’ within the meaning of the Act i.e., a contract of service, to come within the scope of the Act.  Therefore, the first matter for consideration is whether the Complainant was engaged under a contract of service at the time relevant to his complaint.  The Respondent sought to rely on the Karshan judgment.  In Karshan the Supreme Court undertook a comprehensive review of authorities on determining employment status.  While I consider it appropriate to assess the Complainant’s employment status by reference to the five-question framework in Karshan, it must be noted that this judgment solely addressed the employment status of delivery drivers for income tax purposes.  The Supreme Court noted that the five-question framework may need to be adjusted when assessing the relationship between parties where the protection of employment rights is at issue. 

It is clear from all the case law in this area that a decision maker must:

(i)               examine each case on its own facts;

(ii)              examine the contract as a whole, its nature and how it was performed in reality to determine if it is consistent or inconsistent with it being a contract of service or for services; and

(iii)            be cognisant that no one factor is decisive for determining employment status.

The Respondent contends that the Complainant was at all material times self-employed, and therefore the Complainant has no standing to pursue a complaint under the Act.  The Complainant contends that in 2023 his employment status changed when the Respondent placed him on payroll and accordingly, he claims he has standing to pursue a complaint under the Act. 

The following was not in dispute between the parties:

§  The Respondent, a GAA club, is a volunteer-led club, governed by an Executive Committee.  All members of the Executive Committee are volunteers.

§  In 2018, the parties entered into an open-ended agreement under which the Complainant provided part-time pitch-side physical therapy services to the Respondent during the playing season in return for payment.

§  The mutual intention in 2018 was for contracts for services.

§  There was no written contract setting out the terms of that agreement.

§  In 2018 the parties agreed a fixed rate of €80 per match attended during which the Complainant provided his services.  This rate remained unchanged from 2018 to 2025.  

§  Subsequent to his engagement to provide pitch-side first aid, the Complainant was also engaged to provide mid-week physical therapy sessions for which he charged the Respondent €40 per hour.  That service was significantly curtailed and largely discontinued after 2024 on the direction of Mr Maher.

§  For the mid-week sessions, the Complainant made himself available one to two evenings for two hours.  That period was divided into treatment slot’s.  Players booked in on a first come first served basis or in order of priority as determined by the team management (i.e., the coaches of various teams).  If no slots were left within the two-hour window (or the time the Complainant had made himself available any given evening), the Complainant was directly engaged by players of the Respondent club to provide physical therapy sessions.  The Complainant was paid out of player collated funds for this purpose or directly by a player.

§  The number of games, at which the Complainant provided his services, increased every year.

§  The Complainant did not provide physical therapy sessions to any other club or other employer or business. 

§  The Complainant at all relevant times provided the materials required to carry out his work.  He also supplied a treatment table (plinth) which was left at the club for the mid-week physical therapy sessions.

§  The Complainant sourced and paid a substitute physical therapist in the event of his unavailability.

§  If a match was cancelled, regardless of the amount of notice of same, the Complainant was not paid.

§  Up to March 2023, the Complainant issued invoices on a monthly basis to the Respondent for his services under the heading “Clive White physical therapy”.

§  In March 2023 the Respondent took responsibility for deducting and or paying PRSI and or tax on all payments it made to the Complainant.  The Complainant agreed to be placed on payroll from this date.

§  The Complainant no longer issued invoices to the Respondent from March 2023.  Instead, he was required to send an email to Mr Maher on a monthly basis, setting out the games attended; the mid-week physical therapy hours being charged for; and the total due for those services.  He was paid for his work by electronic transfer at the end of each month.

§  The Complainant did not claim, nor did he receive, mileage or subsistence expenses or annual leave or payment in lieu thereof.

§  There was no prohibition on him providing his physical therapy services to any other club, business or person, although he generally did not do so.

§  The Complainant was the sole therapist providing physical therapy sessions from 2018 until weeks prior to the arrangement coming to an end in 2025.

§  In April 2025 the Complainant sought an increase on the €80 match fee.  This request was refused by the Respondent in May 2025.

§  The Complainant was engaged in other self-employment including taxi driving and renovation.

§  In an email dated 27th May 2025, Mr Maher confirmed to the Complainant that the club wished to expand on the number of individuals providing a service on match days.

The Respondent maintains that it did not authorise the Complainant to arrange for a substitute in the event of his unavailability, as any individual providing such services would be required to undergo vetting.  The Complainant contends that there was no issue with him substituting himself for another individual and that he was not required to obtain consent, either for the substitution itself or in relation to the person substituted.

The Respondent contends that any mid-week therapy sessions were scheduled by the Complainant without the Executive Committee’s knowledge and that payment for same was claimed retrospectively.  It is the Complainant’s case that he made himself available one or two nights of the week for physical therapy sessions at the request of the Respondent.  He states that’s at no time was that something he did of his own accord and that everything he did and any payments he claimed were always known to and authorised by Mr Maher. 

It is not in dispute that the understanding in relation to the working relationship was one of self-employment at the outset.  However, according to the Complainant, his employment status changed in March 2023 when he was placed on payroll.  It is the Respondent’s position that the sole intention of placing the Complainant on payroll in 2023 was to ensure the Respondent was not held liable for tax should Revenue do an audit.  Mr Maher was concerned that tax may not have been returned for the work performed on behalf of the club.  No payslips were opened to the hearing or provided by either party.  The Complainant provided a letter from Revenue showing PRSI payments since 2023 to date.  The Complainant gave evidence that he asked what implication being placed on payroll would have for him.  He was advised that nothing would change.  The Complainant said he was also told that he would receive payment at the end of each year for annual leave accrued during the year.  The latter is vehemently denied by the Respondent.  It was common case that nothing did change after March 2023 other than in relation to the treatment of the Complainant’s tax affairs, and the Complainant no longer submitted invoices.  Instead, he emailed Mr Maher outlining what work he was requesting payment for.  The Complainant did not receive payment for annual leave.  Nor did he ever request same.   

As already noted, I will assess the relationship between the parties in line with the five-question framework set out in Karshan.  This framework provides a clear decision-making model to determine the employment status of a person taking into account the particular facts and circumstances pertaining to the arrangement.  If any one of the first three questions are answered in the negative, there can be no contract of service as consideration, personal service and sufficient control are the “legally required minimum contents” of a contract of service (per Murray J. at [214]).

Question 1: Does the contract involve the exchange of wage or other remuneration for work?

Consideration must exist before a contract is capable of being a contract of service. 

I am satisfied, for the reasons set out below, question 1 is answered in the affirmative.

The parties entered into an oral agreement in 2018 regarding the part-time provision of physical therapy services by the Complainant to the Respondent during the playing season.  For his services, the Complainant received a payment of €80 per match attended.  The payment of €80 per match attended continued throughout the working arrangement between the parties.  Mr Maher gave evidence that the Complainant was paid for attending 43 matches in 2023; 69 matches in 2024 and 27 matches up to May of 2025.  Prior to 2024, and very occasionally since that date, the Complainant also provided mid-week physical therapy sessions on one or two evenings per week for which he charged €40 per hour.  Considering all the foregoing, I am satisfied that the contract agreed between the parties involved the exchange of remuneration for work.   

Question 2: 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?

A contract of employment can only arise where the worker agrees to provide their own work and skill to the employer.  However, as noted in Karshan some degree of limited substitution is permissible and is not inconsistent with personal performance (at [226]).

I am satisfied, for the reasons set out below, question 2 is answered in the affirmative.

Based on the evidence presented at the hearing, I am satisfied that the agreement reached in 2018, and subsequently maintained, was that the Complainant was engaged to personally provide physical therapy services.  Evidence given on behalf of the Respondent was that the Complainant did not have the approval of the Executive Committee to substitute another person for himself.  The reason for this, according to the Respondent, is that all persons must be vetted, and at no time was the Complainant authorised to substitute another person for himself.  According to the evidence of Mr Maher, all requests for payment were made by the Complainant, and no other person was ever named on an invoice or email when requests for payment were forwarded to the Respondent.  However, I am satisfied that in practice, the Complainant did source, and pay directly, a person to provide physical therapy at matches and mid-week in the event of his unavailability.  The uncontested evidence of Mr Dinh is that this occurred, usually during holiday time, on at least 5 to 6 occasions in every playing season.  Mr Maher gave uncontested evidence that the Complainant was paid for attending 43 matches in 2023; 69 matches in 2024 and 27 matches up to May of 2025.  Based on the foregoing, it is clear, that for the vast majority of matches, the Complainant did personally provide his own services, and not those of a third party, to the Respondent.  I am satisfied that the limited substitution which occurred in practice is not incompatible with personal performance. 

Question 3: 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?

As noted by Murray J. in Karshan, control is a mandatory element of the contract of employment.

Karshan makes it clear that the question at this stage of the five-question framework is whether the level of control exercised or retained is sufficient to be consistent with an employment relationship.  Thus, it is concerned with “a legally minimum level of control” i.e., control in the sense of “ultimate authority” rather than day-to-day control that must exist before a relationship can be capable of constituting an employment contract (per Murray J. at [232]).  It does not determine the question of employment status.   Murray J. also notes at [232] “[w]hat this ‘legally minimum’ element of control is, will depend on the nature of the employment, and in some cases it may indeed prove to be a wide gateway.”

It is clear from Karshan that indicators of control at this stage of the analysis include the right or entitlement to direct what is to be done, how it is to be done, and the time and place where it is to be done – regardless of whether that right or entitlement is actually exercised or not.  In addition, Karshan highlights that control also extends to economic risk and the position of the worker in the business.  As noted by Murray J. in Karshan:

“ . . . the issue of whether a person is in business on their own account is relevant to the question of control, because the degree of control exercised by the employer over a person in business on their own account will, by definition, be less than that exercised over an employee” (at [229]) . . . . it 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 (at [247]).

In Minister for Enterprise Trade & Employment v. Michael Hayes (PTD252), the Labour Court considered the issue of whether a person is in business of their own account as an indicator of control for the purposes of question three of the five-question framework.  Further, the Code of Practice outlines that when considering the issue of control at this stage of the five-question framework, a decision maker may also have regard to the issues of ‘enterprise’ and ‘integration’.  The Code outlines that ‘enterprise’ includes the extent to which the worker carries risk and their ability to make financial gain through their own ingenuity/efficiency.  Integration includes the extent to which a worker is an integral part of the operations of the business/person engaging their services, as opposed to carrying out work that, although done for the business, is peripheral or accessory to it.

In this case, the parties disagreed as to whether the Respondent exercised sufficient control over the Complainant.  Accordingly, it is necessary to assess the degree of control within the relationship.  This assessment must take account of the nature of the employment and the control an employer in that type of employment would reasonably be expected to exercise.  For instance, where the work is skilled, it is to be expected that the employer will not have the right to direct how the work is to be done but yet must retain “some residual authority over it” (per Murray J. at [234]). 

What is to be done, how it is to be done, and the time and place where it is to be done:

The Respondent is a Gaelic Athletic Association club which is a community-based, volunteer-led organisation dedicated to promoting primarily gaelic football and hurling/camogie etc.  It is governed by an Executive Committee, comprised of a Chairman, Secretary, Treasurer, Vice Chair, Vice Secretary and an average of four committee members.  Mr Hoare, Mr Jennings and Mr Maher gave evidence that they are volunteers and have paid occupations and other demands outside of the club.

The Complainant was engaged to provide physical therapy services to the Respondent.  He provided two services: (i) pitch-side first aid at matches, and (ii) one-to-one physical therapy for players for approximately two hours on one or two evenings per week (up until 2024).

The Respondent contends the Complainant was self-employed and that the Respondent exercised no control over the Complainant.  The Respondent emphasised the volunteer-led nature of the club. 

In my view, the fact that most of those who provide their services to the Club do so on a voluntary basis is not of assistance in assessing whether the Respondent exercised sufficient control over the Complainant.  The fact is the Complainant was paid for his services: he was not a volunteer. 

The Respondent determined the number of matches the Complainant was required to be present for.  The Complainant was required to attend at such locations and times advised to him by the Respondent and to remain for the duration of the match.  This is more indicative of a contract of service. 

The Complainant also provided his services to the Respondent for a few hours on one to two evenings per week for one-on-one therapy sessions.  Various text messages were opened to the hearing by the Complainant in which team management directed the Complainant on what players were to be given priority.  The Complainant was required to attend at the Respondent premises to carry out this work.  However, it was the Complainant who determined the evenings and times he was available to conduct these one-on-one sessions.  He created a WhatsApp group which was comprised of the Complainant, team management (that is the coaches of various teams – not the Executive Committee) and the players.  The Complainant determined what evenings and times he was available.  On balance, this is more indicative of a contract for services. 

It was common case that there was no continuous or direct supervision of the Complainant’s work.  In my view, the lack of supervision of the Complainant in the actual performance of his duties is not a determining factor in assessing the level of control exerted by the Respondent, given the skilled nature of the Complainant’s role and the voluntary nature of the roles occupied by the Executive Committee and team management.  It would be reasonable to expect a lower degree of control to have been exercised over the Complainant’s work for those reasons.

On balance, I am satisfied the control exercised in relation to what was to be done, how it was to be done (considering the nature of the ‘employment’ and the skilled nature of the work performed), and the time and place where it was to be done, points marginally towards a greater level of control by the Respondent.

Remuneration:

The Complainant charged €40 per hour for mid-week sessions.  This was paid by the Respondent on demand.  This aspect points towards a greater level of control by the Complainant.

When mid-week sessions were largely discontinued in 2024, most of the work performed was at matches.  The fee for attending a match was agreed between the parties in 2018 and remained unchanged.  Based on the evidence presented to the hearing, I am satisfied that this fee was non-negotiable.  Mr Hoare’s evidence was that the Executive Committee made a decision not to increase the fee.  I am satisfied that a person operating in business on their own account will typically have the freedom to set their own fees or, at a minimum, to negotiate them.  In a non-employment relationship, one would expect a degree of equality in bargaining power.  The absence of such individual bargaining power in relation to the match fee points towards a greater level of control by the Respondent. 

On balance, I am satisfied the control exercised in relation to remuneration, points towards a greater level of control by the Respondent.

Substitution:

Mr Maher’s evidence was that the Complainant did not have the Respondent’s consent to substitute himself for another, as the club would need control over a replacement to ensure that person was vetted.  Although both Mr Maher and Mr Jennings gave evidence that they personally witnessed substitution, they did not issue a direction that this was not to be done, or that the Respondent needed to exercise control over same for vetting purposes or otherwise. 

In practice, the Complainant never sought the Respondent’s permission to substitute himself for another therapist in the event of his unavailability.  The Respondent, knowing the Complainant did in fact substitute himself on occasion, exercised no control over who would substitute for the Complainant, nor over the manner in which that substitute was remunerated.  Instead, both the selection of the substitute and the terms of their payment were entirely determined by the Complainant. 

On balance, I am satisfied that the arrangements with respect to substitution, on the evidence before me, points towards a greater level of control by the Complainant.

Was the Complainant in business of his own account?

Control also includes investment and risk.  The opportunity for profit from sound management, as well as the risk of economic loss, are important indicators of being in business of one’s own account.

The Respondent submitted that the Complainant was in business of his own account at all times, notwithstanding he was placed on payroll in March 2023.  The Respondent submitted that the Complainant was not prohibited from engaging in any other work including his taxi driving and renovation businesses.  I find that nothing turns on the latter as it does not negate the possibility of employment with the Respondent. 

It was not in dispute that the Complainant was initially engaged on a self-employed basis.  The Complainant states this changed in March 2023 when he was placed on payroll.  The Respondent contends that the placing of the Complainant on payroll was for one purpose only: to protect the Respondent in the event of a Revenue audit arising from its concern that the Complainant may not have been making tax returns.  It is common case that the arrangement essentially continued unchanged after March 2023.  The intention of the parties may be given due consideration, but on its own is not determinative.

Factors which I find are more suggestive of the Complainant being in business of his own account include:

§  The remuneration the Complainant received for the provision of physical therapy services was not entirely determined by the extent to which his services were availed of by the Respondent.  The Complainant could and did increase turnover by providing his services directly to players, who remunerated him directly.  The Complainant set the price for this work both when delivered on behalf of the Respondent and to the players directly. 

§  Although the Complainant appeared not to provide physical therapy services to any party unconnected with the club, the Respondent placed no restriction on his right to do so. 

§  The Complainant had no expectation of payment if he was available for a match but same was cancelled.

§  The Complainant carried financial risk insofar as if a match was cancelled, he was not paid.  Further, the Complainant bore the costs for all materials supplied in relation to his work, and for the remuneration of any substitute in the event of his unavailability to personally provide the service.

§  The Complainant did not supply his labour only, but also provided the plinth at the club, and all treatment materials which were listed in evidence.

§  The Complainant invested in developing his physical therapy skills (which was the foundation of the service provided), as evidenced by the certificates included in his written submission.  These were self-funded and completed in his own time.

§  The Complainant did not claim, nor did he receive, any benefits typically received by a person engaged under a contract of service, including mileage or subsistence expenses (which is significant given many games are not played at the Respondent home ground), annual leave or payment in lieu thereof.

§  The Complainant was consulted in relation to the proposal to place him on payroll.

§  I am satisfied that the work performed by the Complainant was not integral to the ‘business’ of the Respondent, but more of an accessory to it.  

Factors which I find are more suggestive of the Complainant not being in business of his own account include:

§  The fee for attending matches was fixed, and non-negotiable.

§  In relation to attendance at matches, the Respondent exercised some control over what was to be done, and where and when it was to be done.

On balance, I am satisfied that the evidence points more towards the Complainant being in business of his own account.

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

The question at this stage of the five-question framework is concerned with control in the sense of ultimate authority rather than day-to-day control that must exist before a relationship can be capable of constituting an employment contract.   Based on the analysis above, I am satisfied, on balance, that question 3 is answered in the negative.  I am satisfied that the Respondent exerted control in some respects, as to what was to be done, and the time and place where it was to be done; and how some of the work provided was to be remunerated.  However, I am satisfied that the arrangement with respect to substitution, points towards more control by the Complainant.  Further, I am also satisfied that the evidence with respect to whether the Complainant was in business of his own account leans more in favour of the Complainant being self-employed.

On balance, taking all of the indicators of control examined above, I am not satisfied that the level of control exercised or retained by the Respondent meets the threshold set out in Karshan: it is not sufficient in the sense of ultimate authority to be consistent with an employment relationship. 

Conclusion

The first three questions in the five-question framework set out by the Supreme Court in Karshan are filter questions.  If any of the three questions are answered in the negative there can be no contract of service.  As I have 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 me to consider the remaining two questions posed in Karshan.

To have standing to pursue a complaint under the Act the Complainant must be engaged under a contract of service.  I have found the Complainant was not, on the balance of probabilities, engaged under a contract of service at any time material to this claim.  Accordingly, I find the Complainant does not have the standing to pursue a complaint under the Act, and I must conclude that the complainant was not unfairly dismissed.

For the reasons set out above, I decide the Complainant was not unfairly dismissed and is not entitled to redress under the Unfair Dismissals Acts 1977-2015.

Locus standi. Contract of service. Contract for services. Karshan.