KEY POINTS:
Q. My wife was transferred to a different department from a job she enjoyed. Her former colleagues subsequently got a significant pay rise while my wife remained on a lower rate. She applied to rejoin the department when a vacancy was advertised but was not shortlisted for an
interview.
We cannot fathom why she has been knocked back from getting her old job back.
A. Your wife's employer could only move her out of her former position into another position with her consent.
Employment agreements often contain a clause that give the employer the flexibility to, for example, transfer an employee to another part of the organisation or into another position if and when the employer requires it.
By entering into an employment agreement containing such a clause, your wife may have consented to the transfer. But if your wife's new position is significantly different to her former position then it may be that her employer should have gone through a formal restructuring/redundancy process rather than simply transferring her to another position.
Even if your wife's employer had the right to move her out of her former position, it was still obliged to act in good faith. This means that her employer should have had a good reason for moving your wife from her position.
So, if, for example, there wasn't enough work for your wife in her former role and her skills could have been better used elsewhere in the organisation, the Employment Relations Authority/Employment Court might accept this as an acceptable reason for transferring her.
But if, on the other hand, your wife's employer had problems with her performance and transferred her into another position to avoid dealing with those issues, the Authority/Court would likely consider it breached its obligation to act in good faith.
Whether or not your wife's employer acted fairly in failing to give her a pay rise equal to her former colleagues and in failing to short-list her for the newly vacated position will depend on what her employer's policies are on internal appointments and pay reviews/increases.
But, in relation to your wife's recent unsuccessful job application, it's fair to expect her employer to provide her with clear reasons why she wasn't short-listed for the position.
As a first step, your wife should request an informal meeting with her managers to discuss the issues she has with her pay and unsuccessful job application. If she can't resolve her employment issues in this way, your wife should consult an employment lawyer/advocate or union representative to determine whether she has a claim worth pursuing against her employer. We don't have enough information to give you such an assessment at this stage.
* Kate Hoyle is a solicitor in the employment team of transtasman law firm, Phillips Fox
