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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 862
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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I was hired to undertake an HR Managers role with a team of

Customer Question

I was hired to undertake an HR Manager's role with a team of 9 people in January 2011. Recently as part of a restructure 6 of these resources was made redundant leaving me with 1 HR Coordinator, a Training & Development Manager and 1 x Training Coordinator. Both the training resources are due to report to another resource by the end of the calendar year leaving me with 1 HR Coordinator. I then also received a change in reporting line which means that my position now reports to a former peer level position with the same job title. At no point has any discussion been held with me about the substantive changes to my role. I have never been offered a redundancy. The expectation seems to be that I will be happy to be effectively demoted and just continue on as though nothing has happened. I have raised these issues verbally and in writing with a number of senior resources to no avail and there seems to be no appetitite to answer my questions or address my concerns. I have indicated I would happily leave via redundancy if that's what they want to achieve, but they seem to want me to stay on. I don't want to stay in such an untenable and unworkable situation. What can I do?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.


Are you saying that your position is no longer exists and that you have been redeployed in a lesser position and are still receiving the same income?


Customer: replied 1 year ago.


Hi


I am still technically employed with the same job title "Manager, People" on the same salary. However, when I commenced my role was as an HR Manager with a team of 9 individuals reporting directly to the Plant Manager in Victoria.


Currently I have 3 employees (2 of which will report elsewhere by year end) leaving me with 1 person.


They have also changed my reporting line to a former peer level position with the same job title. The position I report to is currently held by an Acting HR Manager who works p/t and resides in NSW. They are currently recruiting for her replacement.


Essentially in her organisational structure I am now at the same level with the same delegated authorities as her HR Advisor level positions.


So whilst they have not changed my job title, they have substantively altered what I do and don't have the authority to do, have removed 90% of my resources and have done so without conversation with me about the impact of these changes.


Even when the restructure of my team was taking place, I put to my then manager and to the GM of HR that they should remove my position (and me) and leave the existing 2 x HR Advisor positions in place if they wanted HR Advisors instead of an HR Manager. There was no response to this verbal conversation, nor subsequent e-mail.


My issue is that they continue to alter the position I took on originally without any consultation, and whilst they don't change my job title or salary, they have fundamentally altered the role they employed me to do.


Is that legal? What if any, options do I have? As an HR Manager myself I would advise my business that by making these substantive changes they've effectively demoted me and they should have offered me a redundancy. However I know that HR professionals don't have the same protections under the law as other industries and I earn $200K per annum so have no protection at FWC. I'm just wondering if there is anything else I can do?


 

Expert:  Leon replied 1 year ago.

Good Afternoon

Unfortunately it is legal. If your job has changed and the tasks are different you may be able to argue breach of contract.
They do not have to offer you redundancy. The law permits redeployment into lesser roles and this is legal.
The position though should be suitable.
Here is some information for you.
http://www.workplaceinfo.com.au/termination/redundancy/redeployment-issue-to-consider-when-redundancy
Are you paid under an award? If you are then you are covered irrespective of your level of income.
Customer: replied 1 year ago.


I would argue the tasks are very different - they now include all the tasks my former team completed and I don't have the delegated authority to even sign off paperwork like I did in my former role. Essentially I'm doing the tasks my former direct reports completed. Is that still not considered a substantive change to my position?

Expert:  Leon replied 1 year ago.
Good Afternoon,

If you believe that the position they are now putting you in is not suitable and your position is redundant, then you can argue that they must give you redundancy.

Bottom line is that the law has held that inferior position is given to people as a redeployment in lieu of redundancies have been held to be valid and that they cannot seek further compensation.

Here is an information That may assist in your case where they have failed to be consultative in their decisions.

http://blandslaw.com.au/articles/redeployment-options-for-redundancy/

http://www.mondaq.com/australia/x/152704/Redundancy+Layoff/Have+you+really+considered+redeployment

If you are not paid under award and your income is over $123,000 a year you are not entitled and fair dismissal applications and you would only be left with a breach of contract by the employer.

You would need to get further detailed advice from a solicitor the practices in employment and contract law to determine whether you have an action against your employer.

The fact that there is a substantive change in your position does not mean what they are doing is unlawful. If they are prepared to keep you on the position that is not lower paid then they are well within their rights rather than offering you redundancy.

If the aim is such where is a clear breach of the contract and designed to cause you to resign, your resignation would be a problem is you cannot bring an action for unfair dismissal.

Actions for breach of contract must be bought from the traditional civil courts which could be quite costly.

I know this is not a definitive answer but I hope it is giving you an idea of how the law operates.

Is there anything else I can assist you with?
Customer: replied 1 year ago.


No thank you.

Customer: replied 1 year ago.

FYI - I tried 2 of the websites you provided, one was for members only (Workplace Info) and the other could not be located (Blandslaw).


 


I could only access the Mondaq article.


 


HR professionals as I understand it are the only industry that are not covered by a modern award, is that true?


 


 

Expert:  Leon replied 1 year ago.
Good Evening

You need to copy the links and paste them into your address bar.

Sometimes they do not work just clicking on them.

I have tested them and they work if you copy and paste them.

http://blandslaw.com.au/articles/redeployment-options-for-redundancy/

http://www.mondaq.com/australia/x/152704/Redundancy+Layoff/Have+you+really+considered+redeployment

Try them again and let me know how you go.


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Deborah Awyzio
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Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience