An assistant social
worker was made redundant after her workplace underwent significant
restructuring. The employee was appropriately consulted about the
disestablishment of her role, and was told to apply for the position of a youth
worker under the new structure. The employee was unsuccessful in regaining
employment.
The Employment
Relations Authority held that the employer did not breach any terms of
the employee’s collective agreement in regards to redeployment, and
reconfirmation. The ERA accepted that at the time of the employee’s dismissal
there were no other positions available into which she could have been
redeployed. The ERA noted that redeployment into the youth worker role was not
appropriate as it was significantly different from her previous position.
Likewise, reconfirmation was not offered for the same reason.
The ERA
therefore held that the employer was justified in carrying out an assessment
exercise to gauge whether the employee was suitable for the youth worker role.
The ERA held
that the selection process adopted was not one that a fair and reasonable
employer could have carried out in all the circumstances. The ERA held that the
employer did not undertake a thorough review of the employee’s attributes,
capabilities and work performance in her previous role, and did not interview
any of the employee’s previous managers or supervisors in relation to whether
she would be an appropriate person for the position. Instead, strong emphasis
was placed on her performance at the interviews. As a result, the employee was
unjustifiably disadvantaged.
The
obligations on the employer in this case are more onerous than when
interviewing a potential new employee as the employer owes a duty of good faith
to the employee already.
The ERA awarded
$5,000 compensation for humiliation, loss of dignity, and injury to
feelings.
Alan Knowsley
Employment Lawyer Wellington
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