KEY POINTS:
The company I work for is introducing a new computer system which will effectively make my role disappear (affecting a large number of mainly part-time staff in the same role throughout the country). We have been assigned an alternative role which is very different in job function; to date nothing has been put in writing.
What are our choices?
1. Are we obliged to accept the new role? If not, does redundancy apply?
2. What happens if we accept the new role and then find for whatever reason that we are unable to perform that job function?
Many employees find the situation you are in perplexing because there is no magic formula for determining these situations. The fact that you have been offered an alternative role at first seems like good news. But you have said that this one is very different to your current role. Your employer may be offering you an alternative role to avoid paying redundancy compensation.
Usually redundancy compensation is only available if it is a term of your employment agreement.
Generally, the test for whether a new position creates a redundancy is this: Would a reasonable person, taking into account the nature, terms and conditions of the new position consider there was sufficient difference between the former role and the alternative role offered by the employer? The answer to this question is often not obvious because it depends on the particular situation.
If the alternative role is substantially similar then you are obliged to accept it. If the role is not substantially similar to your current role, then a situation of redundancy may apply. It all depends on the terms and conditions in your employment agreement.
Substantially similar means more than reasonably compatible. A job with the same duties but a different title is likely to be substantially similar. A new job that is the same but with a different focus or emphasis could also be substantially similar.
As to jobs that are not substantially similar, there is no set rule about the amount of difference required for this. Each situation depends on its facts. The nature and extent of each difference is relevant. Some differences are:
* Level of responsibilities.
* Change in seniority - is this a demotion?
* Changes to salary and other benefits.
* Reduced or increased hours of work.
* Different type of employment, eg fixed term instead of permanent.
* Reduced leave entitlements or other benefits.
* Reduced/removed to redundancy compensation.
* Failure to recognise prior service.
If the differences between your current job and the new role are fundamental then the new role is not substantially similar. If the differences are more subtle, the question is more difficult to determine.
If you accept the new role and then find for whatever reason that you are unable to perform the job function you should approach your employer. Your employer should assist you to upskill in order for you to perform the new role. Of course there will be a limitation on just how much assistance is required.
It would be prudent for you to discuss these issues with your employer before accepting the new position.
If you think the new job is not substantially similar, you should consult an employment law specialist and fully explain the nature of your current job and the new terms offered so the differences can be assessed for the purpose of determining whether this is a redundancy situation.
* Lyndal Yaqub is a lawyer in the employment team with transtasman law firm DLA Phillips Fox. Email your employment law questions in 200 words or less to careers@nzherald.co.nz with "Your Rights" in the subject line. Questions are not usually acknowledged on receipt and will be answered only in this column.
