KEY POINTS:
Q: I have been told today that my current position in the office has now changed from a part-time position to a full-time position. I was not offered the full-time position, but another person in the same office was going to be doing this job. Have I any rights as an employee in regards to redundancy if I do not like the new position offered? I have not been advised of the date in writing regarding this change, nor has a position been offered either in writing. I would like to know if I have any rights at all.
A: Employers must have genuine reasons for making employees redundant (ie, genuine business reasons) and follow a fair process for making an employee redundant.
From what you have told me it appears that you have not been given reasons by your employer as to why it has changed your part-time position to a full-time position. In actual fact, your employer has disestablished your part-time position without consulting you.
I am not clear from the information you have given me whether you have in fact been offered the new full-time position, or your employer would like you to apply for the full-time position.
The Employment Relations Act requires that an employer deal in good faith with an employee regarding any proposals it that might impact on the employee, including a proposal to make the employee redundant.
The Act requires an employer who is proposing to make a decision that will, or is likely, to have an adverse effect on the continuation of employment of one or more employees, to provide to the employees affected access to information relevant to the continuation of the employees' employment, information about the decision, and an opportunity to submit any comments on the information to the employer before the decision is made.
It appears that your employer has not implemented a consultation process and as a result has breached its obligations to deal with your employment relationship in good faith.
Your employer is not obliged to give the new position to you unless there is a provision in your employment agreement which provides for this. However, an employer is obliged to consider alternatives to redundancy, including redeployment. But, in any case, the fact that your position has been disestablished without consultation and without a fair process being followed, means that you have been unjustifiably dismissed.
Unjustified dismissal arises when an employee's employment is terminated involuntarily without proper justification. The most common cause is an unfair disciplinary process, but a sham redundancy, or a redundancy where an unfair process has been followed or in your case, where no process has been implemented are also legally regarded as unjustified dismissals.
* Recommendations
You should inform your employer that you are not happy about the current situation because it has not followed fair process in making you redundant. Your employer may be willing to rectify the situation and may give you the new full time position. But if you do not want to work in the full time role then you are in a strong position to raise a personal grievance on the basis of unjustified dismissal.
If your employer does offer the new position to you and you accept it and then later on decide that you do not like the new position, this may weaken any claim you may have on the basis of unjustified disadvantage in employment and unjustified dismissal.
Unjustified disadvantage arises when an employer unreasonably or unfairly does something or fails to do something that results in the employee's employment or conditions of employment being unjustifiably affected to their detriment.
If you are not offered the position and want to apply for the full-time position, then to safeguard your interests, you should separately raise a personal grievance on the grounds of unjustified disadvantage and unjustified dismissal, and state that you are unhappy about the employer's lack of consultation and failure to follow fair process in implementing the redundancy. You may also question the genuineness of the redundancy.
Your employer has breached its obligations that it owes you in this situation and I recommend that you seek assistance and representation before taking any action.
