What are the risks?
There are of course risks to both changing and not changing. In the employment context, there are a number of common aspects that frequently arise for employers.
Key risks to employers from poor change or redundancy processes include:
- Unfair dismissal claims
- WorkCover claims
- General protections claims – adverse action and discrimination
- Equal Opportunity claims
- Disgruntled workforce
- Negative public image
While claims cannot be avoided, your chances of successfully defending them can be greatly increased by ensuring that you are familiar with your legislative obligations and that these are factored into your initial planning.
A clear planning process which ensures that you are fully aware of the legislative framework – which for example, could render a redundancy an ‘unfair dismissal’ if consultation is required and not undertaken – will ensure that you are well placed to proceed with your process.
Likewise, clearly articulating what you need in the business going forward, and putting in place a rigorous process to get there, should also hold you in good stead against claims of unfavourable or discriminatory conduct in selection procedures. This is a particular risk where two or more employees are vying for the same role.
How much change to a job role is ‘too much’?
A question that often comes up in the employment context is how much change can occur existing working conditions and roles before the employer is looking at a redundancy arises.
When you attempt to change staff duties, you will need to be aware of the limits of what may be considered a ‘reasonable’ change in relation to their position and conversely what level of change might trigger a redundancy or termination, if challenged.
Reasonable changes are generally those that do not fundamentally alter an existing position. In assessing this, the core elements of the role, or purpose of the position would be the key consideration. Adding administrative tasks to a receptionist role would be unlikely to fundamentally change the nature of the role. However, directing this same employee to undertake a sales role ‘out in the field’ is unlikely to be aligned with the original role. Likewise, a day worker being moved to a night shift could constitute a significant change.
It is imperative that you properly plan and consider such potential outcomes prior to proceeding. Unfortunately employers who do not plan in advance can find that they are better off not proceeding when faced with the costs of redundancies. This can lead to them abandoning the proposed change altogether, producing significant uncertainty and ill feeling in a workplace and leaving business in a worse position than when it started.
Where to from here?
Change is inevitable and can be challenging. Seeking professional advice where needed and appropriately early in the process can best prepare you for identifying and implementing changes successfully. Having a clear vision of where you want your business to be and a well thought out plan to take you there will underpin a successful process.
Lisa Burrell is the general manager of the Victorian Employers' Chamber of Commerce and Industry (VECCI). VEECI is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non-government body, VECCI was founded in 1851 by the business community to represent business.