Complainant

Respondent

Parties

Hayley  Murphy

Hertz Europe Service Centre

Representatives

 Self-represented

Mr. Mr. Owen Keany, B.L., instructed by LK Shields Solicitors LLP.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052263-001

16/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00052263-002

16/08/2022

The complainant has presented a complaint that she was constructively dismissed on 27/5/2022 contrary to the provisions of the Unfair Dismissals Act 1977, as amended (the “1977 Act”) and a second complaint of a contravention of the provisions of the Redundancy Payments Act 1967, as amended (the “1967 Act”).

She commenced work as a HR Consultant in 2011, was promoted to a HR Business Partner in 2016 and remained in that role until she was constructively dismissed on 27/5/2022.

 Her salary was €5802 gross per month

She submitted her complaint to the WRC 16/8/2022.

CA-00052263-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant contends that she was constructively dismissed when she was compelled to submit her resignation on the 1/4/2022 due to the respondent’s treatment of her in the previous twelve months. Her resignation took effect on 27/5/2022.

Evidence of complainant given under affirmation.

The complainant commenced employment as a HR Consultant on 3/5/2011 in the respondent’s shared service centre which supported the respondent’s Car Hire company. In 2016 she was promoted to the role of HR Business Partner, (“HRBP”).

The essence of the complainant’s case was that the complainant lost trust in the respondent as her role was downgraded, her career progression, despite assurances to the contrary, failed to materialise, and the respondent failed to provide her with a salary commensurate with her responsibilities.

From February 2021 onwards, she was engaged in a consultation process with her manager who then occupied the role of Senior Director HR Shared Services and Site Lead. As her job had grown and evolved over time, she asked for a job description which was a true reflection of her increased responsibilities. Her manager gave her a draft Job Specification on 10/2/2021 and gave her the option of submitting changes. This job description reflected a more junior position than the one which she had previously exercised. She was now spending a lot of time on tasks that she had done 15 years previously. The role was more operational than strategic. This was not in line with her professional development plan or aims.

She gave her manager a revised job description on 12/2/21. He assured her in Feb 2021 that her revised job description would be accepted. She accepted the need for flexibility.

In June 2021 she felt that despite her recommendations, set out in her revised job description of February 2021, that her role should be more strategic than operational, her concerns were not being taken seriously. She began an informal grievance process and submitted a grievance on 19/7/2021. She told her manager that it was an informal grievance, notwithstanding that the document states ‘Formal Grievance’. The content of the grievance at that time was

•            the respondent to acknowledge that the role of HRBP was now redundant and to agree an exit package

•            If redundancy could not be awarded, the role of HRBP to be benchmarked and graded according to the job specification of February 2021.

•            the complainant to be given a career plan with a defined date for progression

 Her manager told her that he accepted the legitimacy of her Grievance.  He was pushing for her to be promoted to Director, but it was always up to the complainant to initiate progress and movement.

She found the whole process of trying to effect changes in the content of her role to be very stressful.  Her workload was colossal. With no progress in sight, she sought counselling in December 2021.

In Feb 2022, matters came to a head. The complainant telephoned the Vice President; she told the complainant that promotion to a directorship was not on the cards. It took from July 2021 - Feb 2022 to get this clarity. She now doubted her manager who had advised the opposite.

 The Vice President said she would come back to her with a proposal, but the complainant had to chase this too.

The complainant told the Vice President that she wanted a change in title, role, job description and salary increase in March 2022. In March 2022, the Vice President told the complainant that she had to be doing the job before she could be promoted, contrary to previous assurances.

In early March 2022, the complainant’s manager offered the complainant the role of Senior HR Business Partner and a salary increase from €69,630 to €81,5000, but she had to continue the same tasks and role. This increase was self-funded in that the company had to reach certain targets to enable them to pay her this increase. This was not a promotion but new terms for the same job. She was given 4 days to say yea or nay to the offer. She accepted the offer in a phone call with her manager but stated to him that she wanted further negotiation on the salary. She told her manager that an annual salary of €85-€90,000 would close the matter,

The respondent then made a revised offer of a base salary of €71, 370 and a temporary allowance of €18,000 bringing it up to €90,000, but she would have to agree to amend the terms of her contract to bring the notice period from 8 weeks up to 4 months as part of the deal. This alteration was unique and non -negotiable for her. She had seen other promotions and salary increases being approved within 2 weeks. The last straw was the change from a permanent to a temporary post. The allowance of €18,000 was not pensionable. It was not guaranteed to remain in place. Four months’ notice was a deterrent to exploring the jobs market.

In March 2022, she embarked on a search for alternative employment. She was offered a job in March. She informed her manager, but he told her that her no improved offer was available. She was devastated that she had to leave Hertz in those circumstances.

She submitted her resignation on the 1/4/2022.

She stayed for the full notice period of eight week to assist with replacement of staff. Her replacement was offered €77,000- more than what she had been offered.

Re non- submission of formal grievance.

The complainant stated that she had zero trust in the company.

Her manager and the vice president could not have investigated her Grievance, although classified as informal.

She was denied an opportunity to progress.

Cross examination of complainant.

She confirmed that she was aware of the grievance procedure and that as HRBP she had previously conducted grievances.

She accepted that the lodgement of a formal grievance was necessary to trigger an investigation and an appeal.

She accepted that her contract of employment required flexibility but does not believe that it allows for a complete rewriting of terms.

The complainant accepts that Covid in 2020 impacted the company.

Hertz Dublin provides supports around Europe.

She accepts that the parent company had undergone a Chapter 11 Bankruptcy in the USA.

The complainant accepted that senior people had to take on more junior tasks due to massive redundancies.

She states she is unsure if her manager took on fewer senior tasks.

She stated that she did not want the more junior tasks to be the main focus of her role.

She accepted that her title, benefits, salary remained unchanged. but stated that it was the volume of tasks previously done by more junior staff and the shift in focus to more practical tasks that was the main difficulty for her.

She confirmed that the retention bonus of 75% of her salary was based on a performance metric and was unique to her and her manager. She accepted that the regular bonus was 10 % and that the bonus does not crystallise until you stay in job for the year

Concerning the future exiting of her manager from his role with the consequential opening up of that position for the complainant, she stated that she discussed this with her manager.

The complainant stated that her elevation to a more senior position was not dependant on her manager leaving the company but would be in tangent with him moving to a more senior role within the company.

The complainant responded to a query as to which role her manager had identified for her, by way of saying that he would move into an international role, and she would take charge of the HR function in Dublin.

She accepts that she classified the grievance as informal and that such a classification does not oblige the respondent to mount an investigation but states that it should have triggered dialogue.  She accepts that she could have formally invoked the grievance. She had to keep pushing for movement.

She accepts that steps were taken to address her concerns. The team commenced reporting into her from Sept 2021 as opposed to reporting into her manager. She accepts that she was invited to site management meetings from summer 2021.She welcomed this development but didn’t get a great amount of benefit from these meetings.

Concerning the outsourcing of recruitment, she still had to do the technological end of recruitment. The aforementioned steps did not redefine her role as she had requested.

In Feb 2022 the complainant stated that the call with the Vice President closed the door that her manager had opened concerning the possibility of promotion. That call made her doubt her manager and destroy trust in her future promotional prospects. The tipping point for her was negotiations in Feb- March 2022 about new role.

She confirmed that she told her manager in February 2022 that she was exploring job opportunities. She told him at the end of March 22 of a job offer. She never wanted to leave Hertz.

She accepted the offer of Senior HRBP role but still wanted to negotiate on salary. She stated that she verbally accepted €81,500.

She acknowledged that Central Control Cost Committee had to approve salary increases.

To the point that her manager came back to her with an improved offer of €90,000, she said that the allowance was temporary for six months. She also stated that the increase in notice requirements was utterly unreasonable.

Concerning the issue or employer’s desire for stability, the complainant stated that said other employees were not required to give four months’ notice.

Her request to have the notice period reviewed /reduced was rejected. So consequently, she rejected a job offer at that time from another company.

To the point that she was a permanent employee so there was no question of her being let go at end of the six-month period, she stated there was a risk that she would have to go back down to HR specialist role which she had left 6 years previously

She received her retention bonus on the 25 March 2022 and resigned 1/4/22.

Mitigation 

She took up new job on 30 May 2022 at a salary of €85,000 in Dublin.

CA-00052263-002. Complaint under Section 39 of the Redundancy Payments Act, 1967

The complainant stated that the company reduced the number of HR Business Partners from two to one in February 2021.

The complainant states that her role was made redundant in Spring 2021 when her role had ceased to exist. The respondent stripped it of its strategic functions and recreated it in to a different tactical role, entirely different to the role she had held up until that date.

Summing up.

The complainant had no choice other than resignation given the respondent’s treatment of her over the previous  12 months. There was nothing new or valuable for her in being invited to join the site management team. Managing an additional 2 HR staff did not amount to career progression.

The upgrade to senior HRBP resulted in the same terms and conditions.

She lost all faith in the company; the respondent knew of her grievances and did little to resolve them. She did not formally invoke the grievance procedure – only informal because she did not trust that it would be done properly.

She asks that her complaints be upheld.

 CA-00052263-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The respondent denies that the complainant was dismissed. She left of her own volition.

Evidence of Vice President, HR, Europe given under affirmation

The witness addressed the complainant’s desire for a fixed set of functions, more strategic than operational.

In terms of the requirement for flexibility in how the HR function operated, the witness stated that pre- Covid 19, there were 40 staff employed in the HR function which encompassed the recruitment, learning and development and project management functions. With the onset of Covid-19 in 2020, the company lost 85% of its business. There was a complete travel shut down decimating the car hire industry. After March 2020 and the onset of Covid-19, the Shared Services Centre –was left with 6 people. They had to change their work to accommodate the huge reduction in staff.

From May- June 2020, the parent company in the USA was declared bankrupt. Its European arm continued to trade.

The function of the HR Business Partner was to work with business in terms of understanding strategy and the needs of organisation.

The complainant’s contract allows for flexibility.

In July 2021, the company recommenced hiring people. The respondent invested more in technology. They hired in Finance and Technology specifically. The impact for the complainant and HR was they had to bridge the gap, make up for the depleted staff cohort and engage in  recruitment and interviewing.

The Job Description.

The complainant requested a revised  job description in February 21. He provided her with one. The witness believed that this job description was the product of his discussions with the complainant and the second HRBP.

She thought it was too extensive and wanted to see more specifics. He accepted many of her amendments.

There were short term needs in HR. The witness stated that they had to adapt very quickly to meet these HR needs in the context of a depleted staff

Request for promotion.

The witness stated that he could not determine the date on which she would succeed to his post.

The effects of Covid-19 and a depleted staff on complainants’ assignments.

The witness stated that with a reduced team they all dug in and shared operational and tactical work without reference to their seniority /role. Whereas the complainant wanted a more strategic focus.

For example, he did tactical work assessing CV’S, making offers to candidates. He knew that It was a transitional phase.

On 19/7/21 the complainant submitted a grievance by email to state that it was not a formal grievance. He had told her previously to send him a grievance setting out her exact concerns. He acknowledged her right to do so and planned to see what he could do to resolve matters. He did not  perceive it as a formal grievance.

He did address her concerns by way of having more HR support specialists report to her. Their job was concerned with contracts / changes in work systems. The witness invited her to site meetings.

She stayed with the company until May 2022.

She never stated that she wanted to make a formal grievance.

In March 2022 when she expressed a desire to expand her role or be promoted, there was no more senior position available. In late February -early March she told the witness that she was looking for another job. The witness recalled the complainant telling him that she had been offered a position with another company. The complainant was upgraded to Senior HR Business Partner. This was a change of title.  She was offered a salary increase of €12,000 to bring her up to €81,000. On foot of her request for a further increase to bring her up to €90,000, the witness went to the Cost Control Committee who alone had authority to approve such a further increase- it wasn’t within his gift to do so, She was to be moved to a base salary of €71,370 plus €18,6300 in an allowance bringing her up to €90,000 – the salary  she had sought. The allowance was to be temporary for a six-month period.  He knew that this allowance would be solidified after six months. There was never any question as asserted by the complainant of changing the contract from permanent to temporary.

The Cost Control Committee CCC wanted to increase her notice period to four months because the respondent had experienced a lot of turnover in HR and they wanted consistency and stability. The same terms were applied to the SHRBP but there was a change in salary and notice requirements

The complainant was disappointed with the  four months’ notice requirement as well as the temporary nature of the allowance.

The witness stated that he was gutted by her resignation. It was a very big role to fill. He told her that he would accept a retraction of  her notice  up until the time of replacing her. She resigned after the retention bonus had been paid in March 22.

In terms of trying to meet her need for career progression he brought her onto site leadership team meetings where heads of all departments met. It gave her an opportunity to feed into issues affecting the entire site.

CA-00052263-002 . Complaint under Section 39 of the Redundancy Payments Act, 1967.

The respondent states that the redundancy which the complainant states to have arisen, occurred in March 2021. She lodged her complaint on the 16/8/2022 which is outside of the statutory time limit for lodgement of such claims and is therefore inadmissible.

Without prejudice to this point, the respondent denies that the complainant’s role was made redundant in Spring 2021. The respondent had to put staff on notice of redundancy. The respondent notified the complainant and the second HR Business Partner. The latter opted for redundancy whereas the complainant opted to remain with the respondent and was paid a retention bonus.

She was not dismissed.

Her replacement is doing the same job.

Cross examination of witness.

The witness confirmed that conversations about the complainant’s concerns with her role continued past the lodgement of her grievance in July 2021. Discussions continued about the complainant assuming the role of Director in advance of the witness vacating his role.

The witness accepts that the contract relied upon does not reflect her promoted role.

He disputes the complainant’s assertion that he told he her that might assume his boss’s role.

He knew that she wished to negotiate an improved salary/

Concerning her question about the temporary nature of the promoted role on offer to her and put to her in March 2022, he stated that the new role was not temporary but the allowance was and the company had every intention of making the allowance permanent.

The witness stated that he did discuss the four month notice requirement  with then complainant.

Concerning the requirement for a 4 months’ notice period and the temporary nature of the allowance and the reason why the Cost Control Committee were involved in her increase, this was due to instability in the HR function.  The witness accepted that there was some instability in the IT section also.

Summing Up.

A reduced head count and consequent redistribution of duties is not sufficient grounds for a complaint of constructive dismissal. Everyone had to roll up their sleeves and share the redistributed workload.

There was no repudiatory breach of a contract.

The respondent invited her to submit a grievance about the lack of progression and salary. She submitted that grievance under cover of an email classifying the lodgement of the grievance as informal. She was aware as HRBP of the formal grievance process. It was not a formal submission

Her manager took steps to address her concerns.

He brought her to site level meetings, the highest level of decision making within the company. He outsourced some recruitment which would have shifted that role away from her . The respondent accepts that she told him that she was seeking elevation.

She got an enhanced salary package with the tag of 4 months’ notice. She didn’t have to accept it

She resigned on 1/4/22, after she accepted another job, and thanked her manager for his support after she accepted another job,

Legal submission.

The respondent relies on the two tests set out in Office and Industrial Cleaners Limited v ConnollyUDD2015 drawn from the pre-eminent decision of Western Excavating (ECC) v Sharp (1978) IRL 332, they  being the “contract test” and the “reasonableness test.” The respondent also points to McCormack v Dunnes Stores UD 14 21/2008, which referred to the high burden resting with a complainant who advances a complaint of constructive dismissal, and which requires the complainant to demonstrate that the employer’s conduct

“was so unreasonable as to make the continuation of that employment with that particular employer to be intolerable”:

The needs of the respondent company for flexibility and adaptability following a downsizing in no way amounts to a repudiation of the contract or constitutes conduct so unreasonable as to compel the complainant her to resign.

A-00052263-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The dismissal is in dispute and therefore it is for the complainant to establish that in the circumstances of this case, the dismissal was unfair.

Relevant Law.

Constructive dismissal is defined in s 1. of the Unfair Dismissals Act, as 

“The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The uncontested evidence is that the complainant terminated her contract of employment on 27/5/2022.

 In light of the statutory definition contained in section 1 of the Act of 1977 as amended, the established principles adopted by the relevant fora and the courts, the onus lies with the complainant to demonstrate that her resignation was justified.

In justifying her decision to terminate her employment, the complainant will have to demonstrate that the circumstances of her dismissal met either or both of the two tests as set out by Lord Denning, MR in Western Excavating (ECC) v Sharp (1978) IRL 332, and described thus:

“Conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

and the reasonable test which was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving”

These tests were followed in a line of Irish authorities.

In Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. The Supreme Court stated:

“Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them”.

In the instant complaint the complaint contends that the circumstances obtaining in March 2022 were such that she had no option but to resign.

Application of the Law and Authorities.

Did a Breach of contract occur?

Her contract allowed for flexibility and movement between functions.

I do not find that there was a breach in terms of the salary provisions of her contract.

The proposal to extend her notice requirements from 8 weeks to four months, a curious development, was linked to a significant salary offer and was put to her in the context of her publicly declared plans to seek alternative employment. It was a non-binding offer. The complainant had the option of accepting the initial salary increase, and of forgoing the second salary offer of an additional allowance of €18,000 which brought with it the extended notice requirements and the respondent’s reassurance that the additional allowance of € 18,000 would become an almost certain permanent allowance.

The evidence tendered fails to point to a breach of any term of the complainant’s contract.

Was the respondent’s conduct so intolerable as to leave her with no option other than resignation.

The exact matters which impelled her to resign were the respondent’s  failure to allow her to shed some of the operational roles, and move her  into a more strategic role, the continuing absence of certainty on when she would step into a more senior role, once her manager vacated his role and  assumed a more senior position, the content of her job, the inadequacy of the salary increase, the temporary nature of an allowance and  the changed notice requirements.

Concerning the content of her job and her desire to operate at a more strategic level, I find that her assignment to these operational functions was attributable to the much-depleted HR department, down from a complement of 43 to 5 personnel by August 2021. This, of necessity, resulted in the complainant having to assume more operational tasks than had been the position pre Covid – 19 - a pandemic which led to the near extinction of the car hire industry and led to the concomitant redundancies.

The complainant was in the process of negotiating terms and conditions beyond what lay in her contract.  Her functions had evolved from the original starting point, and she was seeking to have this development of her role formalised in a revised job description.

Career progression is a legitimate aspiration. The complainant believed that such progression and a salary increase was merited. The absence or slow pace of same was what impelled the complainant to resign.

All of these aspirations and objectives were put to the respondent both before and after the grievance lodged in July 2021. The respondent did not push back against her aspirations. He encouraged them. What the respondent failed to do was to keep pace with her need / requirement for clarification on progress. It was understandably disconcerting for the complainant to be told she was in line for a senior position, once vacant, only to have that suggestion debunked by the then occupant of that position who may have herself been unsettled at suggestions of her own departure.

The evidence demonstrates that the respondent was doing the groundwork to meet her demands. In early March 2022, the respondent offered her the upgraded position of Senior HR Business Partner with an increase in salary from €69,000 to €71,370. The complainant wished to continue negotiations on her salary to secure the figure of €90,000 which she believed was appropriate to her role and function and which she identified to her manager in mid-March 2022.The respondent  submitted a further increase to the Central  Cost Control Committee, the body authorised to approve salary increases,  and a further offer  was put to her of  a base salary of €71,370 and an  additional allowance of €18,630 ,bringing her salary up to the requested €90,000. The allowance was classified as a temporary allowance but envisaged as becoming a permanent allowance. The notice requirement was extended from 8 weeks to 4 months.

Her manager did include her in more managerial tasks, and ‘bulked up’ her engagement with the leadership of the company.  The evidence clearly indicates that the respondent did not want to lose her.

The complainant’s manager did indicate that he wished her to step up into a more senior role but not just yet especially as there was no vacancy. The vacancy only materialised in September 2022, three months after she had resigned.

I find that the respondent’s stop- start responses, unstructured, hinted at, while not sufficient to persuade this highly regarded employee that her objectives would be met, was not sufficient to reach the level of behaviour so intolerable as to leave the complainant with no choice but to resign.

I find that a failure to reach your desired outcome in a negotiation process on improved terms and conditions of employment, and within a self-determined timeline, does not meet the threshold of behaviour so intolerable as to leave you with no other choice but to resign your employment. In examining the respondent’s obligations under the “conduct test” the decision of Berber v Dunnes Stores Limited (2009) IESC 10 held that in order to satisfy this test, the conduct on which a complainant relies in a complaint of constructive dismissal must be “ such that an employee cannot be expected to put up with it”

The reasonableness of the employee’s conduct requires to be examined in a complaint of constructive dismissal. The bar in determining constructive dismissal is set very high. In McCormack v Dunnes Stores, UD1421/2008, the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she had acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his/her grievance with his/her employer”

The requirement to use the agreed procedures in cases of constructive was followed in Terminal Four Solutions v Rahman, UD 898/2011 and has been followed in many other decisions

The complainant did not activate the grievance procedure concerning what she believed to be an inadequate salary offer, in March 2022, or the linking of an extended notice period with the increased salary offer. Nor did she escalate the procedure in 2021 when the pace of meeting her then requirements was too slow or uncertain.

Applying the tenets of Western Excavating (ECC) v Sharp (1978) ICR 221 to the instant case, the complainant’s case rests on her characterisation of the respondent’s conduct as conduct so unreasonable “that the employee cannot fairly be expected to put up with it any longer.

Based on the evidence and authorities cited, I find that the complainant has failed to meet the tests set out in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

I do not find this complaint to be well founded.

CA-00052263-002 . Complaint under Section 39 of the Redundancy Payments Act, 1967

Relevant Law.

Time limits.

“24.—Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 week beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.”

Aside from the fact that the complainant resigned, was replaced, and was not dismissed, the complaint was lodged beyond the 52 weeks required by section 24 of the 1967 Act, as amended. The complainant stated that the redundancy arose in February 2021. Her complaint was lodged on 20/8/2022.

I therefore find that I do not have jurisdiction to hear this complaint.

CA-00052263-00.  Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded.

CA -00052263-002 . Complaint under Section 39 of the Redundancy Payments Act, 1967

 I do not have jurisdiction to hear this complaint.

Constructive dismissal; not upheld; threshold of intolerable conduct not reached.