Move was 'within the worker's terms and conditions of employment,' says employer
The Employment Relations Authority (ERA) recently dealt with a case involving an employee who claimed she was unjustifiably constructively dismissed by her employer due to its actions in changing the location of her employment.
The worker, who was employed as a support worker, initially raised claims that she had been unjustifiably disadvantaged and then unjustifiably constructively dismissed by the employer.
The worker argued that the employer's actions in requiring her to move from the house where she had performed the majority of her work to another location were unfair and breached its duty to her.
The employer, on the other hand, maintained that it had the contractual ability to change the location that the worker worked, followed a fair and reasonable process in doing so, and that the worker retired of her own choice.
The worker was employed by the employer from March 2008 until she resigned on 12 January 2023. She was employed as a support worker based in the Wairarapa region, with the majority of her work performed at a residential care facility providing care to several people supported by the employer (known as “persons we support” or PWS) at a specific address, although she also worked at other locations in the region.
The case revolved around a series of incidents that occurred over the course of 2022, which led to the employer initiating the process of proposing changes to the worker's schedule of work on 25 November 2022.
The proposal involved a change to the location where the worker would perform work. The context for these incidents included complaints from a family member of a PWS to the area manager in January and March 2022, and a subsequent complaint from the same family member in July 2022.
The worker objected to the proposed change, stating that she would not be moving house and that she had not been given sufficient reasons to warrant a move.
The employer, however, maintained that sufficient reasons had been disclosed at a meeting on 30 November 2022 and that the move was not punitive but rather to ensure the worker had a safe working environment and considered, balancing the interests between the worker and the PWS, that rescheduling the worker's working arrangements, particularly the place of work, was the better option.
The worker argued that her transfer to another site, which she did not agree with and considered involved punishment from an incomplete investigation into a complaint or other undisclosed reasons, was procedurally unfair and therefore not the actions of a fair and reasonable employer.
The employer submitted that its actions "why, how, and what it decided, were all within the scope of [the worker's] terms and conditions of employment".
It also argued that the worker's choice to move to another location "extinguished, or broke the chain of causation in relation to, her claim of (alleged) breach of duty".
The employer said the worker resigned as she was close to retirement and wished to "drop the grievances she had and just move on".
The ERA found that the worker's resignation was due to the employer's actions in transferring her to another work location. It stated:
"Where I consider [the employer's] actions fall short is in proceeding to utilise the provisions of the [collective agreement] against a background of unsubstantiated complaints and a live complaint involving [the worker]. I do not consider that a fair and reasonable employer would have utilised this ability in the way [the employer] did, particularly where [the worker] was saying she considered broader issues involving [the PWS] and [their family member] needed to be addressed."
The ERA also found that the employer's actions were a breach of duty to the worker and that it was reasonably foreseeable that the worker would resign in response. It noted:
"I accept the submissions for [the worker]. She had clearly and vociferously objected to the proposal to change her work location and while the unjustified disadvantage raised on her behalf did not expressly signal that resignation was being considered by her, it sought 'withdrawal of the requirement for her to transfer to an alternative house' and suggested mediation. When this was rejected, I find it was reasonably foreseeable that [the worker] would resign."
In conclusion, the ERA determined that the worker was unjustifiably constructively dismissed by the employer. It ordered the employer to pay the worker compensation for lost wages for a period of three months and any associated benefits, as well as compensation under s 123(1)(c)(i) of the Employment Relations Act 2000 in the amount of $15,000 without deduction.
The ERA emphasised that "Having been told she was not at fault, I consider she was reasonable in vociferously holding her ground and rejecting [the employer's] proposal she change her work location."
It also noted that "I do not consider that [the worker] has materially contributed to the actions of [the employer] which I have found to be unfair and unreasonable, leading to her resignation and claim of unjustified constructive dismissal."
The decision serves as a reminder to employers to act fairly and reasonably in their dealings with employees, particularly when proposing changes to their terms and conditions of employment.
It also highlights the importance of properly investigating and resolving complaints before taking any action that could be perceived as punitive or unfair by the employee.
