Restructuring and Employee Rights in New Zealand

Has Your Employer Announced a Restructure?

If your employer has told you that your workplace is being restructured, you may be feeling uncertain about your job, your income and your future.

A workplace restructure can involve changes to positions, duties, reporting lines, working hours or the number of employees required. Sometimes a restructure may result in redundancy, but not every restructure should result in an employee losing their job.

Your employer has obligations when making changes that affect your employment.

If you believe your employer has treated you unfairly during a restructure, No Win No Fee NZ may be able to help you understand your rights and take action.

What Is a Workplace Restructure?

A workplace restructure occurs when an employer proposes changes to the way their business or workplace operates.

This may include:

• Changing or removing positions
• Combining two or more roles
• Changing an employee’s duties or responsibilities
• Changing reporting structures
• Reducing the number of employees
• Changing working hours or locations
• Introducing new positions
• Outsourcing work
• Selling or transferring part of a business
• Proposing redundancies

Employers may restructure their businesses for genuine commercial or operational reasons. However, having a business reason for a restructure does not mean an employer can ignore their obligations to affected employees.

What Are My Rights During a Restructure?

Employees affected by a proposed restructure have important employment rights.

Generally, your employer should act fairly and in good faith when proposing significant changes to your employment.

You should be given a genuine opportunity to understand the proposal, consider how it may affect you and provide feedback before a final decision is made.

Depending on the circumstances, this may mean your employer needs to provide you with relevant information about:

• The proposed changes
• Why the changes are being considered
• How your position may be affected
• Whether your role may be disestablished
• Whether there are alternative positions available
• How you can provide feedback on the proposal
• The proposed timeframe for making a decision

Your employer should genuinely consider your feedback before making a final decision.

Your Employer Should Consult With You

One of the most important parts of a workplace restructure is consultation.

Consultation should be genuine.

This means your employer should not simply tell you that your job is being removed and then describe the process as a “consultation”.

If the decision has already been made before you are given an opportunity to provide feedback, the consultation process may not be genuine.

A proper consultation process should generally give affected employees a meaningful opportunity to:

1. Understand the proposed changes
2. Ask questions
3. Obtain relevant information
4. Consider the impact on their employment
5. Provide feedback or suggestions
6. Have their feedback genuinely considered before a final decision is made

Every situation is different, and the obligations on an employer will depend on the particular circumstances.

Can My Employer Change My Job Without My Agreement?

In some situations, an employer may propose changes to your duties, hours, location or other aspects of your employment.

However, an employer cannot necessarily make significant changes to your employment simply because they have decided to restructure the business.

Your employment agreement may be relevant, particularly where the proposed changes affect:

• Your position
• Your duties
• Your hours of work
• Your pay
• Your place of work
• Your employment status

If you have been told that your job is changing and you are unsure whether you have to accept the changes, it is important to obtain advice before agreeing to anything.

What If My Position Is Being Disestablished?

During a restructure, an employer may propose that an existing position is no longer required.

This is often referred to as a position being disestablished.

However, the disestablishment of a position should be distinguished from the employer simply wanting to replace one employee with another person.

Questions may arise where:

• A position is said to be disestablished but substantially the same job still exists
• The employer creates a new role that is very similar to the old role
• An employee is not given a fair opportunity to apply for a new position
• The selection process appears unfair or predetermined
• The employer appears to be targeting a particular employee

If you believe the restructure has been used to remove you rather than genuinely change the business, you may have grounds to challenge the process.

Do I Have to Apply for My Own Job?

Sometimes, following a restructure, an employer may create new positions and ask existing employees to apply for them.

Whether this process is fair will depend on the circumstances.

You may be concerned if:

• Your new role is substantially the same as your old role
• You have been required to compete for a position you were already performing
• The selection criteria appear unfair
• Another employee has been favoured
• The outcome appears to have been decided in advance
• You have not been given a reasonable opportunity to apply

A restructuring process should be conducted fairly and in good faith.

Can I Be Made Redundant During a Restructure?

Yes. A genuine workplace restructure may result in redundancy if an employer no longer requires a particular position.

However, redundancy should be the result of a genuine process.

The fact that an employer calls a dismissal a “redundancy” does not automatically mean the process was fair.

Issues can arise where:

• The consultation was not genuine
• The decision was made before employees were consulted
• Relevant information was withheld
• The employee’s feedback was not properly considered
• The selection process was unfair
• The redundancy was not genuinely required
• The employer failed to properly consider alternatives
• The employer acted in bad faith

If you have been made redundant and believe the process was unfair, you may have a personal grievance or other employment claim. See more about redundancy on our redundancy page: /redundancy/

What Does Good Faith Mean During a Restructure?

Employers and employees in New Zealand have obligations to deal with each other in good faith.

During a restructure, this generally means an employer should communicate openly and honestly and should not mislead employees about matters affecting their employment.

Good faith may be particularly important where an employer is proposing changes that could result in:

• Loss of employment
• Redundancy
• Reduced hours
• Significant changes to duties
• Changes to working arrangements
• Changes to employment conditions

Employees should not be kept in the dark about significant proposals affecting their employment where the employer is required to provide relevant information.

What If I Think the Restructure Is Unfair?

You may have concerns about the restructuring process if you believe:

• You were not genuinely consulted
• The decision had already been made
• Your employer ignored your feedback
• Important information was withheld
• You were unfairly selected for redundancy
• The restructure appears to be targeting you personally
• Your position was supposedly removed but someone else is doing substantially the same job
• You were pressured to resign
• You were treated differently from other employees without a fair reason
• Your employer failed to follow a fair process

You should obtain advice as soon as possible.

Employment disputes often have important time limits, and it can be more difficult to challenge a process after you have signed an agreement or accepted a settlement.

Don’t Resign Before Getting Advice

If you are unhappy with a proposed restructure, it may be tempting to resign immediately.

However, resigning can affect your employment rights and the options available to you.

Before resigning, signing a new agreement or accepting a settlement, consider obtaining employment advice about your situation.

You may have more options than you realise.

How No Win No Fee NZ Can Help

No Win No Fee NZ helps employees who believe they have been treated unfairly by their employer.

We can assess your situation and help you understand whether you may have grounds to take action.

Depending on your circumstances, we may be able to assist with issues involving:

• Unfair restructuring processes
• Redundancy
• Unfair dismissal
• Personal grievances
• Failure to consult
• Breaches of good faith
• Unfair selection processes
• Changes to employment terms
• Disadvantage in employment
• Pressure to resign
• Negotiating a settlement with your employer

No Win No Fee Employment Assistance

We understand that dealing with a workplace restructure can be stressful, particularly when your job and income may be at risk.

Our No Win No Fee model means eligible clients may be able to obtain assistance without paying upfront legal fees.

Contact us to discuss your situation and find out whether we may be able to help.

Frequently Asked Questions About Restructuring

Can my employer restructure my job in New Zealand?

Your employer may be able to restructure the business and make changes to positions. However, employers have obligations when making changes that affect employees and should follow a fair process.

Does my employer have to consult with me about a restructure?

Employees affected by significant proposed changes should generally be given a genuine opportunity to understand the proposal and provide feedback before a final decision is made.

Can my employer make me redundant during a restructure?

A genuine restructure may result in redundancy where a position is no longer required. However, the process leading to redundancy should be fair.

Can I challenge an unfair restructure?

Depending on the circumstances, you may be able to raise a personal grievance or take other action if your employer has acted unfairly or breached their employment obligations.

What if my employer says my job is gone but hires someone else?

This may raise questions about whether the position was genuinely disestablished. The circumstances should be carefully examined.

Should I resign if I don’t agree with the restructure?

It is usually sensible to obtain advice before resigning, as resigning may affect your rights and the options available to you.

Concerned About a Workplace Restructure?

If your employer has announced a restructure and you are worried about your job, you do not have to deal with the situation alone.

Contact No Win No Fee NZ today to discuss your employment situation and find out whether we can help.

We help employees throughout New Zealand with workplace disputes, unfair dismissal, restructuring issues and employment grievances.

No Win No Fee. No obligation to find out where you stand.