Bungled restructure: Thermo Fisher NZ ordered to pay 27-year veteran $150,000

An Auckland company has been ordered to pay a former employee more than $150,000 after a bungled restructure.

Rachel Dimoline had worked for Thermo Fisher New Zealand Ltd for 27 years and took exception to the company suddenly redeploying her into another role which had fewer benefits.

She claimed her employment ended by way of redundancy, or that she was constructively dismissed, and therefore was entitled to redundancyunder the terms of her individual employment agreement.

However, the company argued that as she was offered redeployment she was not entitled to redundancy as she turned the alternative job offer down.

She began working for the company in 1992 and up until August last year had risen to a “Product Manager – microbiology and diagnostic”.

Leading up to August, the company had indicated it would be restructuring its business and on August 22 her manager contacted her saying that her role would be disestablished and if the new proposal went ahead she would be “appointed” to a new role.

The letter made it clear that if this occurred it would not be “a redundancy situation”.

The new role was Product Specialist, microbiology, which was basically a sales role, a change from her current desk-based role.

While she met her managers on a couple of occasions in quick succession, she said she was never given a job description about the new role.

She told her bosses she knew change was coming and could understand the reasons for the restructure and she understood their verbal explanation of the new role.

However, in a letter handed to her at the next meeting a week later it made mention of two changes to her employment agreement, namely, a restriction of employment for 6 months, and no allowance for redundancy should she be made redundant in the new role.

The authority said Thermo Fisher appeared to believe Dimoline had accepted the offer prior to presentation of the employment documents and she was therefore bound to accept any downgrade in terms and conditions contained therein or, in the alternative, that these matters could have been negotiated between the parties.

However, Dimoline disputed that at no point did she agree to taking the role or receive a job description.

The authority said it was “difficult to understand how Thermo Fisher could claim Ms Dimoline had agreed to be bound by an agreement the terms of which she did not know”.

“I do not accept there was a reasonable basis for Thermo Fisher to believe Ms Dimoline had accepted the product specialist role at the 29 August meeting.”

On September 3, Dimoline was then emailed and asked to sign “employment documents” of which none were a job description.

Dimoline again asked for the document.

On September 6, Dimoline contacted human resources and explained she intended to seek advice that the restructure was a “non-redundancy situation”.

After a hearing before the authority, it sided with Dimoline and believed a redundancy situation did arise.

The authority found that while the restructure was a genuine one,there was no agreement between the parties that she would be redeployed into the new role.

Thermo Fisher was critical of Dimoline’s persistence for a disestablishment date and stated she was “transfixed on orchestrating her own redundancy”, that she tried to “trap the Respondent into terminating her employment by way of redundancy” and that “Her
focus was instead, to try to trick the Respondent”.

However, the Authority disagreed.

“There is no reasonable basis for these claims … there is little wonder she would ask for the time frames her employer was working to and insist on receiving and having time to review the correct employment documentation.

“There is no reasonable basis on the evidence before the Authority to find Ms Dimoline acted unreasonably or in a deceitful or underhand manner as invited by Thermo Fisher.

“Given the considerable professional resources Thermo Fisher had access to, the clear and obvious failings in the restructuring process cannot be levelled at Ms Dimoline.”

The authority agreed to Dimoline’s request for 58 weeks’ redundancy pay, including interest, of $122,659.16, as well as $25,000 for compensation for humiliation and loss of dignity, as well as $3000 towards her lawyer fees of $4522.88.

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