Worker wins case after employer bound themselves to redundancy outcome during first phase of restructure
A seasonal field technician faced redundancy during a nationwide restructuring that identified 25 positions for disestablishment across the employer's livestock business group.
The worker raised concerns about procedural deficiencies and suggested her selection involved an ulterior motive, while the employer maintained the redundancy was enacted for genuine reasons following extensive consultation.
The worker claimed she was misled during the consultation after her colleagues received letters confirming their positions were safe while her consultation was ongoing.
The dispute centered on whether the employer followed proper consultation processes, provided genuine opportunities for input, and met its contractual obligations regarding reassignment before proceeding with redundancy.
Employment background and restructuring
The worker was employed by a Crown-owned entity as a field technician from October 2021 until her employment terminated in June 2023.
Her position was an ongoing seasonal position working 10 months of the year and was subject to a collective agreement between the employer and the union. The worker was a union member.
The employer started a nationwide restructuring process by distributing a change proposal "consultation pack" accompanying an audio-visual meeting for 150 potentially impacted workers.
The worker and three other West Coast technicians received an individual letter commencing consultation on three broad organizational changes as part of a review of livestock services.
The letter stated the worker's role was at risk of being selected for reduction, but noted the reduction was "provisional" and "this may change as feedback and information is gathered during the consultation process."
The consultation pack stated, "redundancy and redeployment processes are detailed in our Collective and Individual Employment Agreements, and these processes will be followed at all times." However, the term "redeployment" was absent from the actual collective agreement's relevant provision.
The collective agreement stated that following consultation, if an employee's position was declared surplus, the employer would "explore the possibility of reassignment of the employee elsewhere" within the organization.
Selection criteria and colleague confirmation letters
Despite assurances of provisional decision-making, the consultation pack contained selection criteria based on the location of the role, specialist positions, TB-critical roles, and dairy assessor positions.
After reviewing feedback, the employer accepted 19 applications for voluntary redundancy. This left four technician roles in the 'at risk' group.
At a subsequent presentation, the employer outlined that 25 positions would be disestablished. As 19 workers had accepted voluntary redundancy and two had resigned, four positions remained to be disestablished from the "at risk" pool.
The group services manager met with the worker in early May and the employer identified that the worker's role was proposed to be disestablished mainly due to a reduction in movement control testing.
The manager referred to the worker's role being centrally located and amenable to "be split with other roles around it more easily." The manager confirmed "it wouldn't necessarily be ideal, but the surrounding regions would all encroach into your area more to cover it."
The manager confirmed that technicians in roles not being considered for disestablishment, including the worker's adjacent colleagues, would receive comforting letters by the end of the week.
Ongoing consultation despite predetermined outcome
Despite inviting the worker to comment on their selection process and commencing ongoing consultation on disestablishing her position, the manager shortly afterward emailed the three other West Coast technicians a "Consultation Outcome Letter."
This letter unconditionally confirmed them into their positions as field technicians. The colleague's evidence was that she could not recall any discussion prior to receiving the letter assuring her that her position was secure.
The manager met with the worker again in mid-May, referencing a detailed overview paper with maps showing area coverage changes. The manager explained that the proposal had not been confirmed as definitely going ahead and suggested they could be persuaded otherwise.
The manager also tentatively suggested some new positions may be established and that the employer needed to make sure the worker had an opportunity to apply for those.
At another meeting later in May, the worker vigorously contested the data provided to support the disestablishment of her position. The worker asked how individual "skills and attributes" fit into the decision-making.
The manager somewhat confused the issue by expressing acceptance that all technicians had the same skills without making clear that skill set had no bearing on the decision.
Predetermination concerns and misleading responses
At this point in the meeting, the worker indicated a concern that the decision had been "already pre-determined by you sending the letters to the other staff."
The manager's response suggested that the letters contained only conditional assurance of ongoing employment that may change if there was a "significant shift."
The ERA observed that, given the manager was the author of the letters that were in unambiguous terms affirming ongoing employment, the Authority objectively considered these comments to be misleading and confusing.
At subsequent meetings, the worker contested testing figures and suggested alternative coverage scenarios. At one meeting, the worker identified a concern that a technician in an area south of her area appeared underutilized and suggested alternative coverage scenarios, including an adjacent position being reduced or disestablished, with the worker picking up their testing responsibilities. The worker also raised the utilization of contractors.
The head of people and culture operations pointed out that re-jigging their proposal may require disestablishing another role. The worker pointed out that this may prove problematic, given the letters issued indicating their jobs were safe.
At this point in the meeting, the worker expressed a view that it looked like she was being targeted for redundancy rather than her role and that some of her work was being given to another technician who was underutilized.
Final decision and reassignment failures
At a final meeting in early June, the manager indicated an outcome that the employer had decided on. After assuring the worker her submissions had been considered, the manager indicated they still needed to go ahead to disestablish the worker's role, predominantly based on an assessment that there was not enough ongoing work.
An effective disestablishment date was set, marking the commencement of the worker's four-week notice period.
The manager discussed the worker working with the employer's contracted outplacement service and noted some new roles within the employer. Reassignment was not specifically alluded to, and no specific roles were identified as potential ongoing employment.
The "Proposal Outcome" letter confirmed the worker's role was disestablished, with the final working day to be agreed separately.
The letter indicated further options may be explored, including "transfer to a suitable alternative position" or potentially redundancy. The latter options were described as a last resort and "all alternatives to termination will be considered before redundancy arises."
The worker said no contact was made to explore any reassignment options, and shortly afterward, she discovered she was locked out of the employer's job vacancy portal.
Authority's assessment of redundancy genuineness
The ERA found the redundancy was for a genuine reason without an ulterior motive. The restructuring was nationwide and conducted comprehensively, with significant information shared with impacted workers and consultation engaged with their collective representative.
The consultation and engagement with the worker up to the point her job was disestablished was extensive, sensitive, and involved significant information sharing.
However, the ERA was not convinced the consultation was genuine as the employer had, during the first phase, unwittingly bound themselves to an outcome by selecting the role the worker occupied to be disestablished by virtue of its location.
This rendered the consultation meaningless, and it was effectively curtailed once the employer confirmed to the worker's adjacent colleagues that their jobs were safe. From this point, the worker was misled into thinking any input she had or alternatives she identified would be considered with an open mind.
The Authority found the employer's witnesses did not appear to understand the distinction between reassignment and redeployment. There was no provision in the employment agreement covering redeployment obligations, but there was a positively expressed duty to explore the possibility of reassignment.
The employer took no positive steps to formally meet with the worker after making her redundant to construct reassignment options, despite conceding such opportunities existed.
Remedy determination without lost wages
The ERA found this was a flawed and muddled redundancy process with 'surface' consultation and insufficient focus upon reassigning the worker. These procedural defects were not minor and resulted in the worker being treated unfairly.
The respondent also failed to meet obligations under the Employment Relations Act by failing to avoid engaging in misleading behavior and not being constructive in maintaining the employment relationship.
The procedural defects and breaches of good faith ended the worker's employment relationship prematurely in a manner that did not fall within the parameters of what a notional, fair, and reasonable employer could have done.
The worker was entitled to remedies, but the Authority declined to make orders for lost wages as it found substantively that the redundancy was genuine.
In addition, the lengthy consultation period prolonged the worker's employment, and the worker chose to leave early during her notice period when additional remuneration was on offer.
The worker gave compelling evidence of the significant impact of her dismissal and the uncertainty it created at a difficult time to find alternative employment.
The worker explained how her employment ended left her confused and hurt, and had a major impact on her mental well-being, confidence, and sense of self-worth.
The worker felt committed to her role and the local farming community and had a belief that her failure to complete testing work would damage her local reputation for reliability.
