OPINION: Ms C began working at Christchurch Casinos in September 2003 and by October 2007 had worked her way up to the role of service shift manager, writes Mary-Jane Thomas in Work to Rule.

On February 9, 2009, Ms C was granted parental leave. She was told her position as shift manager would be kept open for the one year of her parental leave.

Ms C left for her parental leave on May 17, 2009.

In June 2009, Mr M started as the new Food and Beverage Services Manager.

Mr M reviewed the management structure for the casino's restaurants and bars, and subsequently proposed a restructure of the whole department - which included Ms C's position being disestablished.

The starting point in a restructure is that the employer is obligated to re-deploy an employee to a position that is substantially similar to the role they held prior to the restructure, even where that new role may require some training.

Section 51 of the Parental Leave and Employment Protection Act 1987 legislates this requirement for those on parental leave.

Under this section an employer's only defence, where they terminate an employee's position for redundancy while they are on parental leave, is that the employer does not have a vacant position that is substantially similar to the one that the employee performed before going on parental leave.

Ms C opened an email in late June from Mr M seeking final input and thoughts on the proposed new structure, including the new management positions, some days after the time for final input had expired.

Effectively she was not consulted.

It was not until late July 2009 that Ms C met with Mr M and she was then given the job descriptions for the new positions. Ms C applied for and was interviewed for several of the new positions but was unsuccessful.

She was, however, offered a supervisor role and told she would receive her shift manager pay rate for six months before it was reduced to the supervisor pay rate (a drop of about $10,000). She declined the position.

Ms C raised personal grievances including that she had been unjustifiably dismissed by the casino as a result of an unfair restructuring process. She also claimed that the casino had breached the Act.

The casino argued that Ms C's position as shift manager was disestablished in a genuine restructure, which took place while Ms C was on parental leave. It did not accept that she was dismissed but rather that she had resigned by not returning to the supervisor position at the end of her parental leave.

The Employment Relations Authority firstly considered whether there was a genuine restructure.

The starting point was to compare the particulars of Ms C's original shift manager role with the newly created gallery manager role (which Ms C had applied for).

When the authority compared the two roles they found many similarities.

They were both management roles at the same level, managing the same outlet and reporting to the food and beverage manager. Finally, both roles had similar accountabilities and performance measures.

The authority considered that the gallery manager position was substantially similar to the position that Ms C held at the beginning of her parental leave and it was not satisfied that the casino should not have appointed Ms C to that position.

Accordingly the Authority was not satisfied that the redundancy of Ms C was genuine and it followed therefore that the casino had dismissed Ms C before the end of her parental leave.

The authority found the restructure had progressed substantially before Ms C was contacted about it.

It was held that any consultation with Ms C at that point was insincere and that the process adopted by the casino was unfair to a vulnerable employee on parental leave.

Lost wages and compensation of $12,000 was awarded.

» Mary-Jane Thomas is a partner at Preston Russell Law. E-mail questions to mary-jane.thomas@prlaw.co.nz.

- © Fairfax NZ News

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