FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : KEDCO POWER LIMITED - AND - PAUL KINGSTON (REPRESENTED BY MC GUIRE DESMOND SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal against Rights Commissioner's Decisions r-137748-wt-13/JOC and r-137749-wt-13/JOC.
BACKGROUND:
2. Kedco Power Limited (in Liquidation) appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 3rd July, 2014. The Court heard the appeal on the 30th October, 2014.
DETERMINATION:
Mr Paul Kingston (the Complainant) brought a complaint before a Rights Commissioner against his former employer, and cited Kedco plc (now known as React Energy plc) or Kedco Power Limited as the Respondent pursuant to the Organisation of Working Time Act 1997 (the Act) alleging breaches of Section 15 and 19 of the Act. The Rights Commissioner determined that Kedco plc was properly named as the Respondent. He found that the complaints were well-founded and awarded the sum of €1,500.00 in respect of the breach under Section 15 of the Act and the further sum of €1,500.00 in respect of the breach under Section 19 of the Act.
Kedco Power Limited (the Appellant) appealed the Rights Commissioner’s Decision to this Court.
Ms. Anne Bruen, McGuire Desmond, Solicitors, on behalf of the Complainant, stated that the Complainant was employed by the Respondent from 2ndAugust 2006 until 15thMarch 2013 latterly as Chief Technical Officer. She said that he was not supplied with a contract of employment, however, he understood that he was employed by Kedco plc and was paid by Kedco Power Limited. Ms. Bruen stated that the ultimate parent undertaking of Kedco Power Limited is Kedco plc. She submitted that the Complainant should not be penalised by the fact that a complex corporate structure had been put in place by Kedco plc. He received his instructions from and reported to Kedco plc and it was always implied that he was employed by Kedco plc.
The Complainant claimed that as the conditions of work were so demanding he was unable to avail of his statutory annual leave entitlements and accordingly had a carryover of 25.3 days from 2012. Furthermore he claimed that he worked excessive hours in breach of Section 15 of the Act and submitted details to the Court.
Mr. Brendan Halpin, React Energy plc (formerly Kedco plc) who was present at the Court although not representing the Appellant, stated that the Complainant was never employed by Kedco plc. He stated that the Complainant was at all times during his employment paid by Kedco Power Limited (now in Liquidation) which also issued him with his P45.
Findings and Determination of the Court
The Court notes that the Rights Commissioner found that Kedco plc was properly named as the Complainant’s employer, that the complaints against this named employer were well-founded and ordered it to pay compensation to the Complainant. The Court further notes that Kedco plc (now known as React Energy plc) did not appeal that Decision. The appeal before the Court was by Kedco Power Limited (in Liquidation).
Furthermore, the Court notes that Kedco Power Limited (in Liquidation) was not present before the Court to move its appeal.
In the circumstances the Court upholds the Rights Commissioner’s Decision and orders that the sum of €3,000.00 as decided by the Rights Commissioner in respect of the breaches of the Act should be paid by Kedco plc (now known as React Energy plc) within a period of six weeks of this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th November 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.