The Employment Relations Authority said in its recently released decision that there were gaps in information over how the worker’s role had been disestablished.
ERA member Antoinette Baker accepted it was likely deliberate rather than what the business said was the result of a wider team restructuring.
However, she did not consider it warranted a penalty award, as asked for by the applicant.
‘Passion for fashion’
The woman started as a marketing manager for the digital marketing company in 2022.
She had been approached the month before, while working for a large marketing media business, as well as running her own social media account as an influencer focusing on her “passion for fashion”, Baker said.
She was happy where she was, but open to “the right opportunity and salary package”.
She claimed she was “induced” by a co-director to leave her long-term secure employment to accept the role, including promises of “significant opportunities” to earn commission making the role a “$200,000 role” which did not happen.
The position had a base salary of $120,000 and a bonus structure related to bringing in leads, with the bonus amount linked to the value of the contract that resulted.
However, the role was later disestablished and her employment terminated, in2024, the ERA said.
She raised a disadvantage grievance, claiming loss of benefit.
Company claimed justified business decision
The company denied all the claims and said it made a justified business decision and consulted sufficiently about the redundancy proposal with the worker.
It said the bonus structure was contained in a letter of offer and was explained in the interview discussions for the role.
The company said the woman brought in one successful lead in the time she was employed and was paid the contracted bonus amount.
It denied there was any misrepresentation, which was not a subject raised by the woman until after she had learned of the proposal to disestablish the role.
Overall, it said the woman took an “unnecessarily aggressive and litigious approach” even before the company had made any decision to disestablish the role.
Baker said it was not disputed that soon after she started in the role it became apparent work was needed to update digital marketing material, and the woman was the best person to do this.
Performance review documentation about a year after she started showed she sought clarification of the role, Baker said.
Documentation also showed she had communications with key staff before leaving on an extended holiday in 2023, and that work on new KPIs would be looked at on her return.
Baker said this did not happen, with the company arguing overall concerns about the need to restructure had overtaken matters.
No misrepresentation but motive questioned
The proposal to disestablish the woman’s role started in early 2024, and ended with her being given notice of termination.
In assessing if there was any misrepresentation, Baker found none, particularly because of the contents of the individual employment agreement the woman had signed.
In determining if the company’s motives were that of a fair and reasonable employer, Baker said that, language used in the letter proposing to disestablish the role, showed a decision had already been made, at the very least, to not redeploy the woman to another role.
She also said there appeared to be no “reasonable rationale for the unseemly haste” which set alongside the predetermined language, supported the view a decision had already been made to select only the woman’s role for disestablishment, even after a stated “careful teams review” of all roles.
There was also little information in the redundancy proposal to provide feedback on, Baker said.
Proposal ‘more of a charade’
She said the woman was asked to consider other options or ideas within less than two days of receiving this information, or to have the option of accepting redundancy.
“This was unreasonable and lacked any form of genuine consultation as required,” Baker said.
Taking into account all matters, Baker concluded the proposal was not genuinely one of consultation but more of a “charade” with the goal of achieving an outcome.
She said the procedural faults were not “mainly minor” nor were they rectified during the process, and there was a significant deficiency in core information about how the employer reached the end result.
Even if the decision to disestablish the role was justified, the lack of opportunity for redeployment meant termination amounted to an unjustified dismissal, Baker said.
The worker was awarded $20,000 compensation for the effects of the dismissal and $27,962 in lost earnings, which was three months’ salary on an annual base salary of $120,000.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
