But ERA says her role was not misrepresented
A former marketing manager at a digital marketing agency has won her unjustified dismissal claim after the Employment Relations Authority (ERA) found the company’s redundancy process was predetermined and failed to provide sufficient information for meaningful consultation.
The ERA ruled that the employer’s decision to disestablish the role of “Marketing Manager – Australia New Zealand” and terminate the employment of the employee, anonymised as KMW, did not meet the standards of a fair and reasonable employer under employment law.
The $200k role
KMW began working for the company in June 2022 in a permanent full-time role. She was first approached in May 2022 by a co-director from the digital marketing agency, who told her that the company was “in serious growth mode” and looking for marketing talent.
In an email, the co-director said that “the scale we will achieve across the globe this becomes a $200k role.”
KMW said she was induced to leave secure employment by promises of “regular opportunities to earn commission” and significant career growth.
But after less than two years in the role, her employer proposed disestablishing her position in January 2024, citing restructuring and a plan to absorb her duties into an Australian-based production team.
In February 2024, the firm disestablished her position and terminated her employment on four weeks’ paid notice.
KMW challenged the proposal, alleging lack of information, predetermination, and failure to consider redeployment, and ultimately took the dispute to the ERA.
The former marketing manager lodged personal grievances alleging unjustified dismissal, breach of good faith, and misrepresentation of the role before she was hired.
She argued she had been misled about the nature and remuneration of the role, including that it was effectively a sales and marketing position with commission opportunities making it a “$200,000.00 role.”
Was the role misrepresented?
The ERA rejected the misrepresentation claims, finding that the “$200k role” statement was not a contractual promise.
“I do not accept the above was a misrepresentation to the effect that it meant a $200,000.00 per annum salary was guaranteed as is effectively claimed by KMW,” the ERA ruled.
The Authority also held that the bonus/commission expectations KMW formed were not borne out by the written documents:
“Most particularly KMW signed an IEA (Individual Employment Agreement) that had not inclusion of a bonus scheme that related to what she considered was a commission on sales.”
Redundancy process criticised
Where the employer did fall short was in the way it handled the proposed redundancy, according to the ruling.
The ERA accepted KMW’s argument that the process was effectively predetermined and overly rapid. At the first meeting in January 2024, the language used by management signalled that the decision had already been made:
The Authority found that, despite references to a “proposal,” the wording and approach indicated a decision in substance had already been taken.
“The rapid timeframe set alongside the predetermined language supports that a decision had already been made at this stage to select only KMW’s role to disestablish,” the ERA ruled.
The Authority was also critical of the lack of substantive information given to KMW about the reasons for the restructure.
The initial proposal letter referred broadly to “current business needs, market dynamics, and operational efficiency” and “cross-functional collaboration,” but did not explain what specific problems the company was trying to solve.
It further noted that even if the redundancy was justified, the ERA found the employer’s failure to explore redeployment options rendered the dismissal unjustified.
At least one digital sales role in Christchurch was available at the time, and the Authority accepted that KMW, who had prior sales experience, should have been consulted about redeployment rather than excluded on the basis of management assumptions.
“With KMW’s past employment in sales they reasonably missed out on the opportunity to retain their employment based on ZIB forming its own views about their skills and experience without any consultation at all,” the ERA stated.
The Authority awarded the former marketing manager $20,000 as compensation for hurt, humiliation, and injury to feelings, as well as $27,692.30 for lost wages.
