My husband held a position rostered as Mon-Fri. He had enjoyed this position for at least 12 months before he fractured his spine and is only just returning to his employment on a part time basis. The employer says that there are now no more Monday-Friday positions, and he must go on to a 4 on 2 off roster. I believe that they are bound to take him back under the same terms and conditions he was under at the time of his accident. They have acknowledged this, but they are wanting to "compromise". The compromise they are offering is nothing like a Mon-Fri position so effectively there is no compromise on their part. I'm looking for confirmation that they are indeed bound to either provide employment under his terms and conditions, or if (as they are saying) there are no Mon-Fri jobs any longer, we are facing a redundancy situation.
Early days yet - just a discussion with the managers involved.
Hi Welcome to JustAnswer. My first response will follow shortly. Please feel free to follow up if anything is not clear
His ACC case manager is meant to manage the return to work so that the transition to full time can be achieved. There should be a plan discussed with the employer-has this happened yet? This affects what tasks he does until he is fully fit.
Yes, we are at present going through the transition period with a plan that has been mutually agreed to in order for him to return to work. I might add, that we are dealing with Work Aon as the insurer, not ACC. At present, he is returning to duties as per plan, he has retained his status and rate of pay, but is not rostered, being "surplus" to requirements and operating on a "light duties" regime, and also on a Mon - Fri basis. His duties have increased gradually over the last couple of weeks, with the goal being for him to return to full duties next week. It was mutually agreed between Occupational Health & Safety, Work Aon and ourselves that, because of the nature of his employment, and the circumstances of his injury, returning to his previous position was not an option as the risk was too high. Accordingly, his previous position has been filled, and interestingly enough, his previous position has been filled, and the new employee has secured a Mon - Fri working week. . The employer acknowledges that he has been working Mon - Fri for 12 months prior to his injury, and as such, this constitutes his "normal working week". However, they are now saying that there are no Mon - Fri positions any longer, hence the "compromise". It appears that there is a move toward changing all positions to a 4 on 2 off roster, but obviously they can't change an agreement that is already in place, and I presume the Mon - Fri positions will change over through attrition. Our stance is that, had he not been injured, he would still be employed on that basis. So, for the employee to state that there are no Mon - Fri positions is incorrect: they have recently employed into two similar roles on a Mon - Fri basis.
It appears to us that, rather than wait for the natural attrition process, whereby once he had left the role, the new employee would be put on to a 4 on 2 off roster, they have used his absence due to injury as a basis for changing the terms and conditions of his employment. This is the crux of my question: are they able to do that? Our understanding is that the employer is bound to honour the terms and conditions of his employment contract, and as such provide a Mon - Fri position - which is what he held prior to his injury. Whilst unfortunate, the "compromise" they are offering is unacceptable - but we believe that fitting him back into work within the organisation under the previous (and I presume prevailing) terms and conditions is, quite frankly, not our problem. There is more to this issue Chris, but I'm interested in your reply to this situation to start with. If it helps, we're not dealing with a "Mom and Pop" business here, we're dealing with a District Hospital Board. Correction: Should have read "for the employer to state that there are no Mon - Fri positions is incorrect"
Ps: Because, as mentioned, there is more to this issue, I am more than happy to pay any additional amounts that may be incurred. First things first though..... I have decided to try your service here before engaging a local solicitor.
They cannot change the working hours without his consent unless this is required for reasonable requirements of the employer. A major change to the working week will need to be justified and if other workers have been employed Mon-Fri since tellling him this, they may have a credibility problem.
The problem will be to insist on the Mon-Fri and ask what they intend doing if he insists. They could not fire him for this. They will need to justify the change however. So he can stand firm,.
Thanks Chris.On another note, the position that was offered to my husband had a requirement that he have a certain qualification that he did not have. It was mutually agreed that he would work toward this qualification whilst he was actually doing the job, and a deadline was put in place of 31 December 2011. This was all set out in writing within the letter of confirmation of his employment from the Human Resources Department.There was a verbal agreement between my husband and his manager that the amount of study required and the constraints of the job itself would mean that he may require an extension to the deadline. In the meantime, my husband's manager is no longer working for the service.Similarly, because of the nature of the job (there are only 6 clients within NZ that require the level of resourcing needed by my husband's client), and also because of the undertaking to complete the necessary qualification, my husband's manager commenced his salary at Stage 2 of the salary scale. My husband's manager confirms that the terms and conditions of employment are discretionary from his level.We acknowledge that the qualification was not attained before the 31 December 2011 deadline. There are various reasons for this that were obviously recognised earlier when extension was considered. One of the major reasons was an acute staff shortage - which incidentally, played a major role in my husband's injury (but that's another story) lol - which meant my husband was unable to take leave in order to finish his study prior to the deadline. His injury occurred on 10 January 2012. Whilst he has been recuperating, and once he could actually sit, he was using every possible chance to work on his study, and this is evidenced by the number of assignments he has been able to hand in during this period.We have now been advised that, because he is "unqualified", as from 1 July 2012, his salary will be dropped back to Stage 1 of the salary scale, until such times as he reaches qualification. Human Resources have advised that any staff member who is "unqualified" - and once they have been identified - will be in the same position. We know of one other staff member so far who has had the same situation come to light. It is indeed going to open a can of worms, as there are many within the service who are "unqualified" - some have held their positions for some 30 odd years and are already at the top end of the salary scale - but HR advise that everyone will be in the same position.We acknowledge that the original deadline was not met. We also acknowledge that the agreement to an extension was made verbally, and that the manager with which this agreement was made is no longer there.It is hard to believe that a service who use terms freely such as fairness, supporting and encouraging a healthy workplace, healthy work/life balance, zero tolerance to workplace bullying, etc etc can be treating an employee in such a way. It has been hard enough coping with my husband's injury as it is: we have a severely disabled adult son who lives at home so this has had a major impact on our lives. After his injury, there was a serious injury investigation launched both in-house and through the Department of Labour. At the time, due to the shock and the many things we had to deal with, we elected to keep the circumstances of the injury simple - e.g. that it was an accident. When asked by the Dept of Labour what we thought should be done to prevent this happening in the future, we alluded to things such as normal safety practices, etc etc. The truth is, the injury was entirely preventable, and directly caused through lack of support from the powers that be. It is extremely frustrating that, given the way we have been treated, any attempt to revisit the causes and the actions taken as a result of the injury would be seen as some kind of "blackmail" on our part. This is not our intention - we are not vindictive people - but in hindsight and in view of the circumstances that have now evolved, it is something we now regret.Thanks again, Chris - I do realise that this whole situation may require engaging a local solicitor, and I'm happy to act on that if you advise this to be the best course of action. I thank you for your input anyway
I think you may need to get someone on the ground to run this. I suspect they are being bureaucratic rather than malicious, but in the end, they must act in good faith in any employment contract, and their actions in the proposed salary reduction appear unfair.
They may be lucky not have faced an OSH prosecution over this.
But the issues will need some advocay and perhaps the people affected will need to collectively protest the decision about qualifications
Thanks again, Chris.As I have been typing this, I've realised that the issues are getting quite complicated. We are lucky to have as our solicitor a guy who also has a severely disabled son within the service, so he is familiar with the bureaucratic workings of the hierarchy. Once again, I thank you for your time and your input.RegardsSharron
LLB MMgt FAMINZ 32 years qualified as lawyer
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