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307 posts

Ultimate Geek
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Topic # 182531 20-Oct-2015 08:52
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Hi all,
I'm wondering if you might be able to provide any advice on the following situation:

A friend of mine has been employed with a company for the past few years as a permanent, fulltime employee.  My friend works in two locations within Auckland - 3days a week at one site, 2 days at another.  Their employer wishes to split the job into two positions and have one part-time employee at each location.  (Same duties, same number of hours per week at each site, though the proposed working times at each site are different)  Their employer has stressed that it is not a "performance" issue.  They want my friend to chose one of the part time roles, and advertise to fill the other.

My (layman's) understanding of NZ employment law is as follows:
 * An person's employment contract cannot be altered unless both parties agree to the changes.
 * A redundancy must be for a genuine business reason.

Now, my friend does not wish to transition into a part time role.  This seems to suggest that their employer will need to make them redundant from their fulltime, permanent position in order to effect the change that they're looking for.

But if they do so, and then immediate seek to fill the vacancy created with two part time positions, is this still a "genuine" redundancy, or have they left themselves open for a personal grievance claim?

Thoughts?  Advice?

Thanks in advance :-)

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Ultimate Geek
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  Reply # 1409599 20-Oct-2015 08:59
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My Advice? Your friend needs to talk to a Lawyer.

Community Law is also a possibility depending on their financial situation.




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  Reply # 1409601 20-Oct-2015 09:03
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This is a serious issue and advise  should be sought from a professional. I am not sure an internet forum is a good place for livelihood advice no matter how good that advice may be.




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  Reply # 1409602 20-Oct-2015 09:04
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You will not get a proper answer here, only opinions as you have no idea of the credentials of people who give advice. 

My comment would be that you left out the employers reason for doing this.    You say it is not performance related so why are they doing this?

If out of malice or for business reasons? 



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  Reply # 1409603 20-Oct-2015 09:04
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Agreed, talk to a lawyer.

But, if their relationship with their boss is good, talk to them first. Let them know that they are not happy about the potential of cutting the job in half. If it is not performance based, why cant they keep on doing it as they are? Give the employer a chance to sort it out (they may have 5 days work at one site?). Employers will want to avoid the potential of any messy litigation.

What sort of job is it?

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  Reply # 1409609 20-Oct-2015 09:13
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If nothing else, talk to the MBIE labour inspector, they should be able to offer some guidance on this too 



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  Reply # 1409613 20-Oct-2015 09:20
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Thanks guys - I absolutely acknowledge your point that formally dealing with this is a matter for professionals.  However I'm still interested to hear a range of unqualified opinions and/or similar experiences.  (potentially both from employers and employees)

To answer the questions raised so far:

They type of work involved is PA / Office Admin.

The business reasons given for the change are:
 * To provide greater support to the Site Manager(s)
 * To provide greater support to the other site staff
 * To provide greater visibility to customers

Reasonably generic...   One of the key things I personally don't understand is how these perceived benefits might eventuate given that the duties and numbers of hours at each location remain the same.

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  Reply # 1409659 20-Oct-2015 09:44
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6FIEND: Thanks guys - I absolutely acknowledge your point that formally dealing with this is a matter for professionals.  However I'm still interested to hear a range of unqualified opinions and/or similar experiences.  (potentially both from employers and employees)

To answer the questions raised so far:

They type of work involved is PA / Office Admin.

The business reasons given for the change are:
 * To provide greater support to the Site Manager(s)
 * To provide greater support to the other site staff
 * To provide greater visibility to customers

Reasonably generic...   One of the key things I personally don't understand is how these perceived benefits might eventuate given that the duties and numbers of hours at each location remain the same.


It looks to me like your point "Same duties, same number of hours per week at each site, though the proposed working times at each site are different" is the key. If the employer is wanting an admin on site at each place at particular times of the day - eg between 8am and 11am each day, or just to have them on site every day, but part time, then one person can't do that. The work remains the same, but the required hours are probably enough of a change to justify.

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  Reply # 1409667 20-Oct-2015 10:01
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6FIEND:
(Same duties, same number of hours per week at each site, though the proposed working times at each site are different)


Same number of hours can differ from exactly the same hours. 4 hours a day 4 days a week is the same number of hours as 8 hours a day 2 days a week. If there is a change in when the hours are, even if the total number is the same, it's quite possible it isn't feasible to have the same person perform the role at both sites.

It's also possible, depending on the specifics of the role and relationship of the sites, there may be issues around conflict of interest in being involved in both sites.

Without a lot more detail, it's difficult to make a definitive judgement. As above, your friends needs to discuss it with his/her boss in the first instance to get a full understanding of why your friend can't do both still, and if that is not fruitful then consult an employment lawyer.






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  Reply # 1409708 20-Oct-2015 10:40
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First and last word will always be consulting a lawyer with expertise in the field. Employment law is pretty specialised.

With a huge degree of oversimplification, the majority of the rules in the area are more process than substantive. i.e. as long as the employer follows the right process, they're usually okay. It's not the law's role to interfere with legitimate business decisions (it's their business, after all), just the process that is followed. But again, this is hugely oversimplified.

There is some information on MBIE's website that may or may not be useful.

In addition to lawyers, your friend may have access to one of the employee support services like EAP.

Your friend should also have a think about what they want - do they want to keep their current job at all costs (including potentially alienating the current employer - and depending on just how far the relationship breaks down, maybe settling for a cash payment), or could this be an opportunity to move on to something new and interesting? References and reputations do count. 

But lawyer lawyer lawyer lawyer. The right one can add a huge amount of value.



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  Reply # 1409726 20-Oct-2015 11:15
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Thanks for all the feedback, insights and helpful links.
FWIW, my friend will likely look to move on to new opportunities.

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  Reply # 1409729 20-Oct-2015 11:21
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I'd personally start by reinforcing seeking professional advice. 

Secondly, I would STRONGLY recommend sitting down, in a reasonable, calm and assertive manner, and asking for a more detailed explanation of why the change might be occurring. It's entirely possible the reasons are perfectly legitimate and as an employer, I am happy to talk to my staff about potential changes that may affect them. Not all businesses are out to screw their staff. I don't think
it's healthy the number of people who assume such in this day and age.

Once the facts and proposal are in hand, then your friend can decide what they want out of the situation, and whether they can get it there, or not. 

I have found with employment matters, a reasonable approach from all parties, usually results in a reasonable outcome. 

I'd suggest your friend put aside any anxiety and approach this with an open mind.  Make sure they get a reasonable nights sleep the nights before the meeting. I do understand how scary these matters can be.

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  Reply # 1409756 20-Oct-2015 12:02
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Significant reduction in hours (which is what the employer is asking for, since only part of the existing job would remain available) is definitely a redundancy issue, where your friend should at least get paid out a partial redundancy based on the number of hours they're losing.

Whilst I agree with networkn, my experience has been that not everyone has a reasonable approach to an issue. Your friend needs to define for themselves what they think is reasonable, and, if the employer won't accept that, then go get a lawyer. NB: employment lawyers can work on contingency... no money is needed up front.



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  Reply # 1409764 20-Oct-2015 12:24
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frankv: Significant reduction in hours (which is what the employer is asking for, since only part of the existing job would remain available) is definitely a redundancy issue, where your friend should at least get paid out a partial redundancy based on the number of hours they're losing.

Whilst I agree with networkn, my experience has been that not everyone has a reasonable approach to an issue. Your friend needs to define for themselves what they think is reasonable, and, if the employer won't accept that, then go get a lawyer. NB: employment lawyers can work on contingency... no money is needed up front.




A lot of contracts have redundancy clauses which clearly state there is no redundancy pay out requirement. Typically only very large companies or industries who have a union have those. 

I didn't really state everyone has a reasonable approach, but at the least, for her sake she should approach it as such, clearly outlining her concerns and some idea of her ideal outcome. 

The big thing is to remove the emotion out of it. 


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  Reply # 1409874 20-Oct-2015 15:09
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6FIEND: Thanks guys - I absolutely acknowledge your point that formally dealing with this is a matter for professionals.  However I'm still interested to hear a range of unqualified opinions and/or similar experiences.  (potentially both from employers and employees)

To answer the questions raised so far:

They type of work involved is PA / Office Admin.

The business reasons given for the change are:
 * To provide greater support to the Site Manager(s)
 * To provide greater support to the other site staff
 * To provide greater visibility to customers

Reasonably generic...   One of the key things I personally don't understand is how these perceived benefits might eventuate given that the duties and numbers of hours at each location remain the same.

I'm guessing the employer's plan is to split what is currently (say) a 40 hour week for one person into two 20 hour weeks for two people, where those 20 hours worked are the same time at each site, e.g. 10:00am - 2:00pm every day, at both sites. This would preclude one person working both jobs as they can't be in two places at once.

I'm pretty sure the employer is entitled to do this if they can show that having no admin support for a whole day is ineffective or causing problems at either or both of the sites, and that there are reasons why that support has to be at the same time at both sites, e.g. why one person can't work mornings at one site and afternoons at the other (maybe alternating which site they start at), thereby providing support for four hours each day at each site. Of course your friend may not want to do this, depending on how far travel is between the two sites.

It's certainly worth talking to a specialist employment lawyer as it seems your friend's employment contract will need to be changed.

gzt

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  Reply # 1409880 20-Oct-2015 15:30
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6FIEND: Thanks for all the feedback, insights and helpful links.
FWIW, my friend will likely look to move on to new opportunities.

Yep. Thread subtitle: employer shoots self in both feet over two part time positions now in pain for months.

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