In the wake of the Employment Relations Amendment Bill passing into law, sweeping changes have been made to workers and employers rights.
A former manager of a tyre business has been awarded nearly $145,000 in lost wages and for hurt and humiliation after he was let get go and quickly replaced during a "restructuring process".
Bruce Campbell worked for Value Tyres Limited (VTL) as a marketing manager in Christchurch from June 2016 until his position was disestablished in August 2019.
The nationwide wholesale tyre business employed around 80 people at the time of the restructure.
Campbell took his case to the Employment Relations Authority claiming the restructuring was for the ulterior motive of removing him from his $170,000 a year position to replace him with someone else.
He told the ERA the tyre company had not acted in good faith and introduced a 10-years-plus experience clause to exclude him from a vacant sales and marketing position.
During evidence it was also heard that Campbell's boss, Bruce Donaldson, said Campbell was not "a tyre man" and didn't "bleed black".
Campbell told the ERA he believed the restructuring process was initiated to vacate his position for a "Mr X", a person returning to New Zealand with significant overseas tyre industry experience who Donaldson had known for years.
Subsequently disclosed email exchanges explicitly indicate an agenda to make way for a position for Mr X by removing Campbell.
Emails disclosed to the ERA show "the possible offer by Value Tyres and the possible acceptance by X of a position as an employee of Value Tyres".
Other emails talk of having "an awesome team" and then "as discussed we are reviewing our structure and we have a process to work through at this end before we can further our discussion in a more meaningful way."
Donaldson suggested they re-engage when the restructure was complete - around July 2019.
On 26 July 2019, Campbell met with Donaldson and VTL's chair Grant Stewart.
An invitation on the previous day had not indicated the purpose of the meeting or alerted Campbell to the need to have a support person present.
At the meeting, Stewart said there was the need for restructure alluding to the requirement to save costs because sales were not meeting expectations.
It was proposed that two roles, one occupied by Campbell would be disestablished and replaced by two new positions of general manager sales and marketing and a business development manager.
Campbell said he considered that he would be reassigned to the Sales and Marketing role and that he was supportive of combining the two responsibilities.
However, when scrutinising the skills and attributes needed Campbell realised there the role called for "10-years-plus experience in the tyre industry" which he did not have.
He immediately confronted Donaldson and asked if the "10-year industry experience" outlined was "negotiable". Campbell had worked in the industry for three years.
A marketing manager for a tyre business has been awarded more than $145,000 after his unfair dismissal. Photo / 123rf
Campbell was not happy with the response and commented that this was the sort of requirement businesses use to exclude applicants.
In evidence, Donaldson conceded that "Mr X" had 10 years plus industry experience.
He placed emphasis on Campbell's lack of tyre industry experience and product knowledge on his non-appointment.
Campbell believed the whole process was pre-determined and sought legal advice.
In August Campbell arrived at work and was ushered into the boardroom. He was told he was unsuccessful in his application for the role and that he would be made redundant.
Campbell asked why he was not appointed and was given various reasons including lack of insight into the market, grasp of the product, poor negotiating skills and lack of collaborative management practices.
Campbell said he was shocked by criticism of his performance and he did not respond.
He believed Donaldson had already made his mind up.
The vacant sales and marketing position was not advertised as indicated.
After obtaining board's permission Donaldson contacted Mr X on August 28.
By September 3 the company had secured an agreement that Mr X would commence working for VTL as a Sales and Marketing Manager commencing on September 16, 2019.
David Beck from the ERA found the restructuring process was enacted for "genuine reasons" but the decision to not redeploy Campbell was more likely than not, driven by an ulterior motive.
He said Donaldson compared Campbell with Mr X as if he was conducting a normal selection process for a vacant position where he could openly select.
The inclusion of the "10-years-plus industry experience" strongly points to an ulterior motive.
This was further reinforced by Donaldson's comment in evidence that he considered Campbell was not a "tyre man" and that he did not "bleed black".
It found Campbell's employment was ended in a manner that did not fall within the parameters of what a "notional, fair and reasonable employer could have done in all the circumstances at the time".
The ERA found Campbell was unjustifiably dismissed from his employment with Value Tyres Limited.
