Managing change in challenging circumstances

David Burton, an Employment Law Barrister, looks at a recent personal grievance case involving a lack of clarity on behalf of the employer during a redundancy process.

Successful businesses and organisations tend to be agile and need to adapt to changing circumstances. Finding the right solution for the employer is as important as managing the change to resolve the situation.

Failing to manage that change may result in the employment relationship being terminated with the employer facing substantial claims, as the employer found in the recent case of LNF v Department of Corrections in the Employment Relations Authority.

Split Role

In 2019 the Department of Corrections advertised a role with a position description that was dated 2007. The intention was for the role to be split 80 per cent in one team and 20 per cent in another. While it required some administrative work in both teams, the work was at a more senior level. While the intention was to explain the position more thoroughly through the interview process, this was not successfully communicated.

Corrections has a complicated organisational structure, which was further complicated with managers and staff being seconded into alternative positions for periods of time. The situation became ‘messy’ within the first few weeks of LNF’s employment. LNF started raising issues with her managers about her role, including where she sat in the team structure. There was additional conflict with a colleague regarding boundaries between their two roles, with the colleague believing that LNF was stepping into her role.

The situation became ‘messy’ within the first few weeks of LNF’s employment.

Lack Of Clarity

LNF’s manager saw the situation as a personality conflict and suggested that LNF move into his team. LNF was not persuaded that the move would improve the situation. Matters came to a head and there was an altercation between LNF and her colleague. A mediation was proposed, but LNF was not prepared to attend this.

LNF was moved into her manager’s team on a full-time basis. Although her manager believed all the parties were content with the arrangement, LNF continued to have an issue with the lack of clarity she perceived in her role.

Variation Of Employment

LNF’s manager tried to define what work LNF had been doing and to find meaningful full-time work for her. He started discussions about “how do we fill in your day” and discussions regarding a job description. LNF began to look for other work at Corrections because she felt like she was still getting caught in the crossfire.

A formal letter was given to LNF offering her a variation of employment with a confirmation of duties. LNF did not agree and contacted her union. Numerous meetings were held with LNF and her representative. LNF received a pay rise, the explanation being that there were no performance issues because there was no job description to measure performance against. Mediation was again discussed.

Disestablishment

LNF’s managers then considered disestablishing the type of role LNF was employed to do, on the basis that the support in the region was more administrative than advisory. LNF was the only employee in that type of role in the region, so LNF was the only employee affected. LNF provided feedback that the current state was that the role she was employed to do did not exist; that she had worked in an undefined role; and that her manager had failed to actively and constructively remedy this for two years. She said the proposal had been specifically drafted to remove her from the organisation.

After a mediation was attended, LNF was advised that her role was disestablished and Corrections would work with her to explore alternatives. There was no discussion with LNF about redeployment, partly due to there being no agreement about her tasks. Months later LNF received a formal notice of severance.

Successful Personal Grievance Claim

LNF raised personal grievance claims and argued that Corrections used a restructuring process to terminate her employment, following a long-lasting and unresolved employment relationship problem.

The Employment Relations Authority agreed and found that the redundancy was not genuine and was used to justify the termination of LNF’s employment. LNF was awarded six months of lost remuneration and $23,000 compensation.

She said the proposal had been specifically drafted to remove her from the organisation.

As part of its reasoning, it appears the Authority thought that Corrections could have initiated a formal review of LNF’s role, and the basis of the review findings would have supported Corrections’ position. The Authority appears to have significantly downplayed the many discussions that were held with LNF regarding her role and attempts to find her meaningful alternative work.

LNF was awarded six months of lost remuneration and $23,000 compensation.

The decision demonstrates that it is essential in change management to clearly understand the issue, identify possible options and engage promptly with staff likely to be affected.

David Burton is an Employment Law Barrister. David has over 30 years of employment law experience in Aotearoa and overseas. His expertise is recognised by his peers. For six years, he was appointed to the Employment Law Committee of the New Zealand Law Society. Before that, he served on the Workplace Relations and Employment Law Sub-committee of the Law Institute of Victoria, Australia. For more information, visit www.burtonlaw.co.nz or email david.burton@burtonlaw.co.nz.