Complainant

Respondent

Parties

John  O'Connor

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-00061320-003

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 on consent in November 2024.

1 CA-00061320 -001   claim for unfair dismissal was withdrawn at hearing (remedy of compensation)

2 CA-00061320 -002   claims for Victimisation / Employment Equality Act 1998 was withdrawn at hearing.

This left CA-61320 -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-00061313-003

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 Foleys 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

Evidence of Mr OConnor

Mr O Connor commenced work with the Respondent on 7 March 1991. Prior to this, he held a variety of jobs, including Mechanical Engineering, but came to work with the Kerry Group as wages were higher than where he was.

He acknowledged that he held a timecard but was “was never told anything “. He received pay for over time worked. He submitted that his pay stayed unaltered for 15 years.

The recalled that “getting milk in as soon as possible “was the overarching goal in an area of high activity.

He recalled a Rationalisation in 1992.

He undertook relief cover for six drivers and accepted direction from the Transport Manager.

Smaller creameries closed. He secured a full time Drivers role in 2000. He recalled sporadic pay rises 2001-2002 and acknowledged that he trusted the Union.

Further Rationalisation occurred around 2005, where Drivers departed the business. Hauliers came on the pitch and “they got the bigger farms “and had a head start, whereas the directly employed drivers got smaller farms and fell behind. Additional hours began to creep up.

High speed pumps were introduced and tankers changed to a larger capacity for gallonage, up to 6,000.

By 2022/2023, he was starting work at 5.30 -6am and finishing between 7.00 to 8 pm as he covered his Listowel area. Sometimes he was diverted from Listowel at beginning or end of day. He submitted that he worked a 73-hr week or at least 10–11-hour days.

Mr O Connor submitted that 15-minute walk about and 1.5 hrs standby was not included in the company calculations on time.

He recalled that Donie Foley had raised the issue of breaks during 2023, but it remained unresolved.

Mr O Connor submitted “I had a quick break if I was in the factory “It was fast.” Some farmers milked earlier, and canteen staff did their best to facilitate but the tanker activity was constant and did not allow for rest during the day. Eddie Fitzgerald had told him about the legal requirement for breaks, and he always took 2x15 minutes when he was in the factory.

He was off work for 6 weeks in 2022.

He received flat pay for Sundays, 30 in Collective Agreement.

Mr O Connor confirmed that he had been paid for his annual leave. He worked public holidays on direction of Mr Dineen, Area Manager and received leave.

Mr O Connor submitted that the excessive hours in driving had greatly affected his life, and he had to forfeit opportunities to tend to his own farm. He feared for his health and struggled with the increased responsibility the job asked of him.

Mr O Connor reflected on the level of cooperation which existed between the Transport Manager and him.

If he were requested to go to a different dept, he was assured that it could be a once off by agreement. He was troubled as he observed other workers going home earlier when he was compelled to hang around for two-thirds additional hours past 4pm regularly.

He was not notified of these additional hours when he started work.

The Complainant framed the context of his protected disclosure as 20 October 2022 when he raised the issue of working hours with the General Manager and when he had made the complaint to the WRC Inspectorate.

“This was the first time an Inspector had been brought in to go over the record of hours which would be damaging to the company.”

Mr O Connor recalled the end of November 2023 when he learned that his employment was to be made redundant and his job was gone. He did not accept the redundancy.

“They said that they were outsourcing all the milk to existing hauliers “

He did not pick up his letter of notification as he wanted to see what the figures for redundancy amounted to.

Solicitors took over the case.

He was offered €222,000 but lost out on €20,000 in pension for 2023 and €12,000 potential in lunch money. He received 8-week notice pay.

Mr OConnor gave evidence of finding s9ome new work in September 2024 and described how his confidence was affected by the dismissal.

Mr O Connor submitted there were issues regarding seniority between drivers and hauliers.

He recalled that fifty drivers had departed in 1992, 6 in 2008 and 9 in 2009, when he, himself had successfully fought a threatened redundancy.

He said he was the last driver hired in direct employment at the respondent.

In redirect, the complainant expanded on the interface between driver and haulier. He needed his job to support his own business. His route was taken over by a haulier on hourly pay.

He looked back at the optimal working of having a truck and driver in each area and described it was a dream arrangement. He did not have cause to make complaints on working time before 2022. His tacho was out of date 24 to 28 October 2022

During cross examination,

Mr O Connor confirmed his absence from the business April/ May 2022, occurred against his wishes and where he felt he did not get the help he needed. He was stressed.

He submitted the Respondent was a “great Company “and he had bought shares to have a say. There was no trail of a raised share holder concern on any of the matters before me.

He submitted a discord existed with his transport manager and indicated that he was the reason he arrived at the WRC. I did not establish a live grievance in that regard.

He accepted that he had not received payment for over time since 1992. He had not been directly involved in the negotiations which led to the Collective Agreements, but in recent years as things changed, he had woken up and began studying them. He accepted that he did not have a claim for annual leave as this was covered by a haulier.

He maintained that he had seen rationalisation programmes in the past but disputed the commercial imperative relied on by the respondent. He countered that he was the man on the ground, every load was full, and he travelled further out than any hauliers and was more competitive than that model.

When questioned on the absence of a connection between the complaints made to WRC Inspectorate and redundancy, Mr O Connor replied that the process involving the Inspectorate endured and other employees were interviewed, while they were still employed. He had hoped for earlier feedback.

He countered that he offers of redundancy was not conclusive and was insufficient in the modern age. He was not interested in redundancy. He denied that the respondent offered continued employment. The waiver in full and final settlement was not acceptable.

He re-affirmed that the internal staff relations problems reflected co-workers with longer service claiming seniority.

He had recorded breaks under protest from 2022and ceased in 2023. When Mr Ryan questioned him if it was his evidence that he did not take breaks? The complainant answered, “you had to go to tachograph to get breaks, and I never touched the tachograph” He confirmed that he had set the spare truck on the wrong mode in error.

He confirmed that he knew he was tachograph exempt but did not know organisation of working time act. It was not mentioned at CPC.

He disputed that his records “my figures “were wrong.

He disagreed with Mr Ryan on mitigation of loss as argued that he had bought his farm in 2013, 90 acres and had obligations there.

In clarifications, Mr OConnor confirmed his shareholder status. He said that he was paid a day in lieu when he worked on a bank holiday.

He had no knowledge of who else was made redundant in December 2023.

His work started 2-3 minutes from home and there was a 30-home journey. He did not work anywhere else. He directed the 6am start time himself, which was agreed with the Transport Manager. He was his own boss.

He did not benefit from any incentive for taking on the tachograph and denied getting any time in lieu.

He clarified that he had not been given alternatives to redundancy in factory stores or fertiliser area. He said it quiet at the meeting, but those options would not have suited him anyway He added that he had thought out some counter proposals but did not articulate them. He did not revert to the General Manager.

He confirmed that he was holding out for figures to justify redundancy but “they never came “He disputed the redundancy was genuine.

Mr OConnor asked if I could “Bolster up the Redundancy “? as that is what he wants. I explained that was an IR domain.

He was unable to quantify the quantum claimed in payment of wages claim. He confirmed that Pay Agreements had populated his tenure, but there was always a long lead into retrospection.

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 5 April 1988.

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 foley 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 er 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 Foley 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 foley 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.

He knew that Mr Foley was refusing to record breaks but had not discussed this with him. He did not accept the pattern relied on by the complainant as “he could take his breaks when and where he wanted “He was not limited to farm or factory. The tachograph provided a log on, log off mechanism.

In addressing the clams under Organisation of working Time Act. 1997, Mr OConnell relied on the collective agreement grounding Mr foleys employment.

He was aware that Mr Foley had raised the topic of his claim that he worked in excess of OWT in August 2023, but HR normally issue a written statement.

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

He offered a clarification on  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 OConnor  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 Foley and his colleagues did not sign the redundancy agreement, and a Trade Dispute followed.

She denied there was any issue with Mr OConnor  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 OConnor  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.

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 OConnor  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 OConnor  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 OConnor outline that he didn’t agree with the Redundancy.

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 case of 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 OConnor 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 O Connor 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.

Nobody called this a Collective Redundancy and sought further protections before mid-January 2024. Nobody called on a Ministerial notification.

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