Complainant

Respondent

Parties

Seamus  Cronin

Kerry Creameries Ltd

Representatives

Mr Paul Maier BL instructed by Kirwan McKeown James LLP Solicitors

Mr Ray Ryan BL instructed by Mason Hayes and Curran LLP

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00061311-003

19/01/2024

On 19 January 2024, the Complainant submitted three complaints which augmented earlier complaints from 2022 and 2023 against Kerry Group PLC, amended Kerry Creameries Ltd on consent in November 2024.

1 CA-00061311-001   claim for unfair dismissal was withdrawn at hearing (remedy of compensation)

2 CA-00061311-002   claims for Victimisation / Employment Equality Act 1998 was withdrawn at hearing.

This left CA-61311-003   My Representative was not properly consulted in relation to a proposed collective redundancy which comes to hearing under Section 11 A of the Protection of Employment Act 1977.

The Respondent denies the circumstances amount to a Collective Redundancy.

The Complainant submitted the below mentioned narrative in CA-00061311-003

The complaint was headed:

My representative was not properly consulted in relation to a proposed collective redundancy which affected me.

Union members of SIPTU as representatives were not properly consulted in relation to the proposed collective redundancy. My employer felt and/or refused to fully engage in the redundancy process and due to the I /RC claims, we were forced to sign a waiver agreement that involved us withdrawing all claims previously lodged (narrative of the complaint)

Counsel outlined that the disputed redundancy had emerged as a direct retaliation to Mr Cronin’s complaints before the WRC when the complaint was placed at risk of redundancy on 3 rd. November 2023.

This most certainly amounted to a collective redundancy in the meaning of Section 6 (c)

At least 10% of the number of employees in an establishment normally employing at least 100 but less than 300 employees, where “establishment “is given its

S6 (3) meaning as an employer or a company or a subsidiary company or a company within a group of companies which can independently effect redundancies.

He submitted that he was dissatisfied at being forced to withdraw the claims within this complaint and refused to sign a waiver.

 Evidence of Mr Séamus Cronin.

Mr Cronin was 66 years of age on the submission of the first set of complaints on 19 December 2022. He came from a farming family and had bought shares in the Kerry Group. He had extensive experience in driving for a living and had changed career to accommodate a medical condition earlier in life.

He joined the Mill in Farranfore on his 23rd birthday, 1979 and had not received any documents linked to his employment at that time. He was hired on the nod of the Transport Manager at the Mill on hourly pay. That comprised standard pays and over time was filed with the Transport Manager.

He submitted “Hours were when you were finished “He had no recall of when he changed to Salary but reflected that he kept abreast of work developments through the Union. He submitted he had not been provided with documents on the collective agreements as he was not directly involved.

He was a relief driver for 20 years before securing his coveted base of Kenmare. He was notified of this by letter.

Things became more casual after the 2005 Agreement as he no longer had a regular route and really wasn’t aware of the rules surrounding working time. It was the end of 2022 before he learned of the 48 hrs maximum from hid shop steward.

He had not sought a contract.

There was a dispute in trying to “figure out where we were with the hours “

Mr Cronin exhibited his own records from 2022 with 98% accuracy. He organised his own substitution via hauliers or contractors. He stopped making records at the end of December 2022.

He worked 11 Sundays in 2022. He contended he worked a 60 average, but it could have been more.

The Complainant submitted that he did not receive breaks. The CPC had directed “us to manage breaks “He was used to putting the dial of the tacho up to change “After 4.5 hrs 3x 15 mins.

He recalled landing in the factory in 2018, where he may have taken 15 -20 mins, but 30 minutes was recorded on the tacho.

When he went to Cadburys, He took 2 breaks, Listowel was an hour.

He was uncertain about annual leave. He recalled sick leave in 2021.

He was approached to relieve on Sundays and believed that he should receive double or treble pay as was the practice in the factory.

He contended that he had worked extra hours and was owed for them but was unable to quantify the amount owed to him.

Mr Cronin was clear that he was dismissed because of a protected disclosure made to WRC but was unable to expand on that. When asked why? He answered “I can’t answer that “

He recalled meeting Mr O Connell and Ms O Carroll in Tralee on November 6, 2023.

He said he was surprised as he had not predicted redundancy and there was very little information available on the first day.

He submitted that envelopes containing statutory redundancy were made available on 9 November, but he did not have those details available.

He submitted that he had not sought details on redundancy as the “Union was running that ““I said nothing “

He was certain that he was not provided with an alternative offer of work and would have preferred to continue. He said he did not know what payment he received on the conclusion of his employment.

Pay slips exhibited in the papers placed a payment to end of fixed term contract, May 2024

= €20,726, paid on 11 January 2024

And

Statutory redundancy paid on 11 January 2024 of €54,384

He expressed a preference to return to the Kerry Group. He gave some evidence of working with a Tipper truck from May 2024. He did not exhibit any of the contracts which postdated his retirement date.

He had participated in the group strike action and have applied himself to family farm work before finding some new work.

The Complainant exhibited some detail of loss post hearing.

During cross examination,

Mr Cronin confirmed that he had past pension age at the firm and had frozen his pension for personal reasons and had been in receipt of Job seekers benefit. He had received confirmation of employment on a fixed term basis from 2021 /2022. He accepted he was due to cease work in May 2024.

He confirmed his shareholder status.

His new work was for Sunville Construction, and he exhibited a variety of pay slips from July 2024 onwards at €17.00 per hour.

Mr Cronin acknowledged that he had witnessed Rationalisation of Milk Drivers and was clear that John OConnor was last driver hired.

He confirmed receipt of statutory redundancy.

He had not paid particular heed to the workings of collective agreement, despite being a member of the Union.

He confirmed the 2010 pay round.

Mr Cronin responded to Mr Ryan on the topic of overtime and accepted that overtime had not been paid from 1992.

He accepted that he had not raised any complaint / concern regarding breaks before 2022. He had never unanalysed the Tacho graph.

Mr Cronin confirmed that he always received a day off within a long week and emphasised the central importance of the tach record time.

Mr Cronin confirmed that he had not requested a copy of the tachograph records.

He was unable to answer Mr Ryan when he was asked to explain the linkage of paid higher rate lunch money to “excessive hours “

Mr Cronin visibly struggled in his answers to the questions on working time.

He demonstrated the CPC emphasis on importance of breaks (3x 15 mins) and the tachograph stops if set at default. He confirmed that he had recorded his breaks until he receives legal advice not to do so.

He was unable to answer if he “got breaks in the factory “

Regarding the dismissal, he accepted the 9 Nov meeting lasted 3 hrs but disputed that the dismissal was due to “commercial interests “countering that at the root of the dismissal was his protected disclosure. When Mr Ryan put to him that this was not borne out in his evidence and that there was no connection between a protected disclosure and redundancy, he replied “can’t answer “

In response to the questions on vacancies and alternatives pro offered, Mr Cronin accepted that vacancies were offered and opportunity to become a haulier on securing “your own truck “

He accepted that he was paid the balance of his contract to May 2024.

In clarification, I sought to understand how far in advance the roster of attendance was generated? I learned there was no material record, and it was generated by the drivers.

When I asked how much notice prefaced a change in hours, Mr Cronin answered “There and then “When I asked if he had appealed his dismissal, Mr Cronin deferred that the “Union took on the dismissal “

Five of the drivers went on strike. Twenty people were made redundant.

Mr Ryan approached Mr Cronin on   his recollection of the extensive consultation during October, November and December 2023 which involved shop stewards. Mr Cronin submitted that nobody had mentioned collective redundancies.

Mr Ryan relied on the application of Section 6(4) (c) as a veritable defence.

Mr Maier calling on Jane Crowe and Debenhams relied on the Kerry Creameries ltd constituting “an establishment “under the Legislation.

He contended that the Respondent had not addressed Consultation at the time of the declaration of redundancy and he had been directed to withdraw his claims before the WRC to receive the pro offered amounts.

The Respondent has disputed the claim and denied that the circumstances of redundancy did not amount to the definition in Section 6 of the Act.

The Respondent runs a global dairy and food business. It is common case that the Complainant commenced work on 13 May 1979.

The Respondent gave a chronology on the evolution of directly employed milk tank drivers from over 100 c 2005 to zero in 2024.

The Respondent outlined that the Labour court had determined terms for redundancy for driver colleagues in 2009 LCR 19437. 6 weeks per year of service, inclusive of statutory lump sum payment.

The Respondent has outsourced its entire milk collection driver cadre to haulage companies. This plan originated over a number of years from 2009 -2020-2023 and was elevated to a decision prior to receipt of the complainants work based complaints in 2022.

The Respondent denied that this amounted to a Collective Redundancy as only 7 individuals were placed at risk of redundancy in November 2023. The minimum of 30 redundancies or more from a 300 or more base of employees was not reached. The Respondent had not notified the Minister.

The Consultation period was triggered with the Union on 26 October 2023 and out of respect to the complainant’s long tenure “the respondent did enter into a lengthy consultation period from 26 October 2023 to 1 December 2023 with the complainant made redundant on 31 December 2023 

Evidence of James OConnell. General Manager (Affirmation)

Mr OConnell is 1 of 5 Senior Managers and General Manager of the Agri business. He transitioned from the ground up to Head of Quality in 2017 to full time in the present role since January 2022.

Kerry Group employs 24,000 employees. However, the Company no longer employs drivers of milk collection. Historically, there were hundreds of staff drivers prior to the evolution of outsourcing from 2009.

The Company objective moved to a targeted 24/7 model from 2001, with flexibility provided by hauliers.

Costings were commenced in 2020, with flexibility for more contracted milk collection from March 2023. An earlier move in 2021 did not progress.

Monies to fund a redundancy were sanctioned from the Kerry Group.

On 16 August 2023 the company made the decision to outsource the milk collection service in full.

Mr OConnell was aware that Mr Cronin had made a protected disclosure, but termination of his employment was not linked to this.

On 26 October 2023 the news of redundancy for 20 people was shared with SIPTU, but the Union declined to attend a meeting.

On 3 November 2023, the Union was notified at the Company office that following a review undertaken at the business, the model of milk driver was no longer viable at the business. This was a “commercial judgement” taken in the best interest of the company.

This kicked off the 30-day consultation for redundancy.

The Union wanted to know about allowances.

On 9 November 2023, Mr OConnell met with Mr Cronin and his colleagues.

“I told them I would facilitate contractor’s roles post redundancy, outside of the redundancy process. I asked them to come to me directly within 7 days as routes were being carved out for tender and uptake “

The Union discussed the meal allowance.

Mr OConnell submitted that if Mr Cronin and his colleagues had expressed an interest in contractors, he would have facilitated that, if not likely their own routes, but not far away.

He recalled announcing live company vacancies open to them in

Factories

Stores

Fertiliser / feed

In cross examination, Mr Maier explored the entity Kerry Agri Business as part of Kerry Agri business Trading ltd. He explained that Kerry Dairy Holding IRL sits on top of the legal entities.

Mr Twomey ex operations and transport manager was no longer with the business.

Mr Dillane as Transport Co Ordinator came to give evidence.

He was unaware of just how many employees were associated with Kerry Creameries ltd.

There were 4 pillars.

Mr OConnell reaffirmed that the decision to outsource the milk tank drivers evolved from 2001 and had been followed by various redundancies.

He decided the redundancies of 2023, which were not limited to drivers, but had a 2022 gestation.

He confirmed that the company had not presented a specific report to staff to justify redundancies. He simply read out the announcement and had not anticipated ending up at the WRC.

He denied this was a collective redundancy. It cost 1million euro.

Mr OConnell described the model of 24/7 deliver and collect milk via haulage contractors / owner derivers or sole traders through Service Level Agreement. The Company owns 60 tankers and routes are now optimised and efficient.

In addressing the clams under Organisation of working Time Act. 1997, Mr OConnell relied on the collective agreement grounding Mr Cronin   continued employment as a Driver.

In clarification, Mr OConnell confirmed that the strike relied by the complainant on was a Protest.

In relation to the Tachograph classification of “other work “ 

I asked Mr OConnell if the untapped ex-gratia redundancy quantum was still there, or whether it had been a one-way journey back to its source.? He replied “It may not be one way “

He confirmed that the fleet of trucks operated by Mr Cronin and his colleagues had been sold.

He was not aware of a staff handbook.

Evidence of Ms Fiona OCarroll, Director of Human Resources

Ms O Carroll is HR Director in Kerry Dairy Ireland and Kerry Ingredients Irl ltd since 2013. Her career has spanned over 30 years in human resources.

The Human resource function has been restructured. Part of the HR    function has been disbanded in UK and Ireland. HR administration is provided from Kuala Lumpur with senior aspects retained.

She reports directly to CEO.

Ms O Carroll recalled the 16 August 2023 meeting where a commercial decision was made by Mr OConnell to restructure more than 20 roles through redundancy. She agreed with the plan and confirmed that this conversation commenced in 2020.

There was to be a reduction of 7 employees in Agribusiness, the homogenous group of drivers (2 of whom rip)

And 5 employees across the greater business.

She referred to the SIPTU generated letter of April 2022 where a company offer on annual leave and pay for the 7 drivers had been rejected in favour of awaiting the outcome of talks in Listowel.

1 a confirmation that contracted hours are in line with the average 48 hrs weekly in WTA/06/02, Collective Agreement.

2 hourly pays calculated on basic pay, sampling and gallonage allowances clarification.

3 clarifications on the hourly rate and its breakdown (what hours are flat rate, what (if any) hours are premium rate etc.

4 Clarification on Sunday pay within the agreement.

5 compensations for drivers who worked over and above contracted hours.

6 Agreement that working arrangements going forward will be 5 10 hr days in peak season with compensatory time off in off peak time. Compensation and overtime claimed.

Ms O Carroll confirmed that she had responded on 23 May 2023.

1 she made an error on standby time when she classed it as an exclusionary measurement.

2 Annualised hours arrangements prevailed.

3 Sunday addressed in the 2005 agreement.

4 Rejected 5-day week.

The announcement of redundancy followed in November, and a level of confusion followed over just who was representing the complainant. The first scheduled meeting of 31 October 2022 was not attended by SIPTU. Letters arrived from both Union and Solicitors.

The 3 rd. November meeting was introduced as an Individual consultation, but the 5 drivers came as a group and were represented by their Union. They asked to keep their roles but were informed their jobs were gone.

It became about “figures “after that and “heated meetings “followed.

Offers were made on foot of LCR   19437 and the respondent responded to the Union on 13 December 2023 through Ms OCarroll

“…. we note your reference to balloting your members for industrial action. While this is a matter for your members, we believe it unnecessary. However, before doing so it is important that hey fully understand as outlined 8in our correspondence to them that all ex gratia terms currently on offer will be forfeited on 31 December 2023 if we do not receive the signed redundancy agreements on the date specified i.e. on or before 14 December 2023.These amount will not be re-instated as they are only available to us until that date .

Should this arise, your members will be paid their statutory redundancy and notice only. It is therefore important that they make this decision with this knowledge and with a full understanding of its consequences.”

Ms OCarroll outlined that the waiver sought in the Agreement on leaving was “standard for Kerry “Mr Cronin and his colleagues did not sign the redundancy agreement, and a Trade Dispute followed. Nobody was compelled to sign the waiver.

She denied there was any issue with Mr Cronin’s complaint to the Inspectorate as collaboration had followed between HR and WRC “many times “.

During cross examination, Ms O Carroll worked with Mr Maier to delineate the emphasis placed on bringing together of Dairy and nutritional Agribusiness. she confirmed she was the most senior human resource manager and had been directly involved in the restructuring programme from August 16, 2023. There were 7 driver redundancies inclusive of the transport manager.

The issue in how milk collection was organised was under consideration since 2001. The final decision to exit milk collection was made on 16 August 2023 as one that was more cost effective in favour of external hauliers. Ms Carroll outlined that it was advantageous in terms of flexibility and cost and constituted an initiative engaged by all Dairy Processors over the past 10 years.

The 4 Pillars are not companies. There are 9 legal entities in Kerry dairy Ireland of which her employer Kerry Ingredients Irl ltd was a subsidiary.

In answer to who controlled OWT compliance, Ms OCarroll answered the Transport Manager, prior to his departure.

Contracts are now in place for all employees.

Ms O Carroll declared that Mr Cronin was an annualised hours employee paid the same throughout the year, similar to manufacturing at Charleville.

 The Agreements were not incorporated in a statement of terms and were expressed terms. The Union/ Management had not engaged further following the respondent letter of May 23, 2022.

Ms OCarroll clarified that “stand by “consisted of “waiting for milk to go in and out “and it was working time at 72 minutes.

Counsel had submitted on the papers; this time was paid but not calculable in the 48-hr average by Agreement.

Employees had access to “My Kerry “as an information tool.

Ms O Carroll had some knowledge of compulsory redundancies but there were not a high number at the business. She confirmed that Mr Cronin was offered the option of becoming a contractor during consultation. She recalled the 18 December 2023 letter of termination of employment on 29 December 2023.

Ms OCarroll wrote to SIPTU dated 5 January 2023 (sic)

“….. compulsory redundancies have nothing to do with the issue at hand. Despite Kerry complying with the terms of a previous Labour Court recommendation which resulted in your members being offered generous ex gratia redundancy payments way above the current Kerry Policy, we are aware that your members rejected this offer as they believe their current case before the Workplace Relations Commission (WRC) concerning working time are of greater value to the amount offered. These cases are assigned a hearing date of 31 January 2024 by the WRC but have since been cancelled. “

The Respondent recognised the complainants appointed Solicitors “to focus on the resolution of this claim “pre the protest in Tralee.

The Respondent had not hosted a localised procedural framework surrounding the myriads of claims from December 2022 as no request was made to process these complaints at base.

In clarifications, Ms Ocarroll confirmed that Sunday had not been recognised for pay purposes historically.

There was no push back from the Union on the error regarding the categorisation of stand by time in May 2022.

Pay slips were sent electronically and a 2009 staff handbook was available within the business. This was submitted to the WRC on 13 May 2025.

Ms O Carroll confirmed that a Protected Disclosure Policy was available at the business.

The alternatives to redundancy were set in the alternative roles discussed at the early meeting with the Union.

The business did not host a leaving party for Mr Cronin or his colleagues.

I have been requested to make a decision on whether a contravention of Section 9 on the obligation on the employer to consult employee representatives in proposing to create collective redundancies.

My jurisdiction is drawn from Section 11 A Protection of Employment Act 1977.

Section 6 on Collective Redundancies provides.

Meaning of collective redundancies.

6.— (1) For the purpose of this Act, "collective redundancies" means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is —

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

(b) at least 10 in an establishment normally employing at least 50 but less than 100 employees,

(c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and

(d) at least 30 in an establishment normally employing 300 or more employees.

(2) For the purpose of calculating the number of redundancies where the number of dismissals is at least 10 in an establishment normally employing more than 20 and less than 100 employees, terminations of a contract of employment which occur to the individual workers concerned shall be assimilated to redundancies provided there are at least 5 redundancies.

(3) In this section "establishment" means an employer or a company or a subsidiary company or a company within a group of companies which can independently effect redundancies.

On consideration of the evidence, I heard Mr Cronin outline that he was disregarded at the conclusion of his employment.

I did not have the benefit of hearing from the Union Official involved for the complainant. It is of note that the Complainants legal reps wrote to the Company on November 30, 2023, seeking terms for the declared redundancy.

The complainant submitted that the complainant was denied consultation from his “establishment “of Kerry creameries ltd and this satisfied the meaning of a collective redundancy.

The Respondent denied that the redundancy constituted a collective redundancy.

In a post hearing submission, Counsel for the Complainant raised the recent CJEU USDAW v WW Realisation 1 ltd C 80/14 at the fifth chamber CJEU as clarifying the term establishment as autonomous unit of which Kerry creameries could be correctly recognised as an establishment.

I did not receive a responding submission to this from the respondent.

I have considered Mr O’Connell’s evidence where he was unsure just how many employees comprised Kerry Creameries ltd. I found Ms O’Carroll more succinct on this topic when she described:

. There are 9 legal entities in Kerry dairy Ireland of which her employer Kerry Ingredients Irl ltd was a subsidiary.

I read the Woolworth case and see that it was remitted back to the Court of Appeal UK. CJEU stated that if a company has several entities, then establishment is the entity to which those made redundant were assigned to carry out their duties. It is not mandatory that the entity have an autonomous management power to affect redundancies.

In that case 4500 employees based in shops of less than 20 employees had been denied a protective payment on consultation prior to widespread redundancies in insolvency.

For my part, I revert to the CFO, Mr Chutes letter to the WRC dated 26 November 2024. Both Parties accepted the contents of this letter as a way forward in agreeing the legal entity, which was described as Kerry creameries ltd, part of the larger Kerry Dairy Ireland Business of 1,500 employees, 40 of whom were Agribusiness. Kerry Co – operative Creameries is currently engaged in a takeover of Kerry Dairy Ireland. The letter, which went undisputed placed Kerry Group Services ltd as the universal paymaster of all employees.

For my part and in drawing from Debenhams Retail Ireland ltd (in liquidation) and Jane Crowe [2025] IEHC] 14 where Barr J was influenced by the organisation knowledge of imminent redundancies in setting the time clock for consultation in collective redundancy much earlier than the union contended on 14 April 2020.

The law has expanded on this topic Employment Collective Redundancies and Miscellaneous provisions and companies’ amendment Act 2024.

I can see that this claim has come forward as a disputed redundancy which I will address in ADJ  50360. However, the circumstances are distinct from the UK Woolworths case in Administration and Crowe, in liquidation.

Mr Chute gave an undertaking that Kerry Dairy Ireland would honour any award made at WRC.

I cannot establish that Mr Cronin as one of 7 certain redundancies which occurred on 31 December 2023 was dismissed as part of a Collective Redundancy as provided for in Section 6 of that Act.

I accept that there were others placed at risk of redundancy in November 2023, but I have been provided with 7 milk tank drivers names whose employment ended in redundancy on 31 December 2023, 2 have passed away, 2 have settled their cases and 3 remain in these decisions.

I have not been able to apply the meaning of a collective redundancy to Mr Cronin as the number is insufficient for that purpose.

I have found the claim is not well founded. The Parties will recall the triggering of the bid to consult occurred in October 2023 when both the Union and Legal Reps were active in these cases. By his own evidence, Mr Cronin confirmed that he had not sought detail on redundancy, preferring to leave it to the Union. This is contrary to the wording of his complaint. He accepted the paid balance of his contract. He was not forced to sign the waiver and has not signed it. He was offered €25,000 ex gratia which remains untapped.

Nobody called this a Collective Redundancy and sought further protections before mid-January 2024. The Kerry Group funded the Redundancy process.

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

Section 11 A of the Protection of Employment Act, 1977 requires that I make a decision in relation to the complaint in accordance with section 6 and 9 under that Act.

I find that the evidence adduced in addition to the written assurances provided by Kerry Dairy Ireland/ Kerry creameries ltd does not meet the test for meaning of Collective Redundancy in accordance with Section 6 of the Act

Collective Redundancy -Consultation