By CHRIS PATTERSON
Q. I have been in a senior position with an Auckland-based company for about 20 years. It was taken over by an Australian company five years ago.
A year ago my immediate managers told me Australia was concerned about the age of the division I managed (we are all over 50, and I am now over 60). Neither manager would confirm that my job was on the line but encouraged me to consider what I might do should my position become redundant.
Within the week the Australian director said my position as divisional manager had been disestablished. He suggested that I come up with proposals for improving the profitability of the division, which I duly did.
After several months with no advice as to what my role might be - yet still performing all my previous functions - I told my immediate manager that I wanted an immediate decision. He said the best I could hope for would be a 12-month contract as a business development manager and again encouraged me to come up with ways I could work with the company.
I suggested that I work on contract and outlined a number of areas where I could be of use. At the end of December we agreed that I stay on the payroll with all existing benefits, working two days a week until the end of March. After that I would work on contract, carrying out work as and when required and this would be reviewed after six months.
Within an hour of my leaving the company at the end of March a junior member of my division was effectively given my job - same responsibilities, different title.
Since April, the expected work from my previous employer has dried up and a friend still within the organisation told me that the work I had been expecting to do will be carried out inhouse. I cannot use this information without severely jeopardising my friend's position.
Early on a lawyer discouraged me from taking legal steps, saying that by keeping matters amicable I stood to gain more advantages.
I feel betrayed and believe my departure from the company has been orchestrated. However, I understand that any legal steps I could have taken should have been within six months of the original disestablishment.
Is this the case? Should I write it off to experience, and accept that three months' part-time work with fulltime pay was the best severance package I could have expected?
A. The age of your division is not a legitimate or lawful concern. An employer is entitled to raise legitimate and lawful concerns relating to your division, but your employer is breaching the provisions relating to age discrimination in the Human Rights Act by even suggesting that the age of your division is a concern.
The Australian director was not entitled to make a decision to disestablish your position without ensuring that you were involved in the decision-making process. Employers are obliged to engage in meaningful consultation in any redundancy situation. You should not have been left hanging for several months.
It appears that your position is not genuinely redundant if your duties and responsibilities have been given to another employee. An employer is entitled to declare a position redundant for genuine commercial reasons, but they cannot then simply have someone else doing your job. There is one possible exception to this rule which might apply in relation to an employee's style being redundant.
I disagree with the advice that your lawyer gave you. It is quite possible to keep "matters amicable" while protecting your interests at the same time.
You may still be within time to protect your interests. However, the passage of time can prejudice your ability to obtain an acceptable resolution of your employment relationship problem. You may want to raise this matter with the relevant District Law Society.
You should not write your situation off to experience without first obtaining some specific advice from an employment law professional.
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