答: 雇佣合同确定后岗位变动原则上应当员工同意，但是有两种例外：一是雇佣合同约定了雇主的管理自主权（management prerogative）；另外一种是有真实的经营需要（genuine business reasons），例如发生裁员或重组的情况。有时候雇佣合同也会规定裁员相关的调岗规则，所以应当结合雇佣合同和公司具体情况判断。雇主应负责举证证明调整的合理性（1991新西兰雇佣法庭Cameron案）。1 Cameron v Manawatu-Wanganui Area Health Board [1991] 2 ERNZ 886 and Niao v Tasman Pulp & Paper Company Ltd [1999] 2 ERNZ 805 both of which dealt with changes to employees’ work hours . From these, and the cases referred to in them, the principles to be applied are: The terms of the employment agreement are important in determining whether the employer’s actions are justifiable. Relevant matters are whether the hours which are sought to be changed are a term of the contract and whether changes to those hours come within the scope of the redundancy provisions. Where the hours of work are a term of an agreement, unilateral change will amount to a breach of the agreement which may only be justified if the change is technical or inconsequential. Where an employment agreement permits the exercise of management prerogative to alter an employee’s working conditions or job description, the employer must act reasonably and fairly before making such changes [Niao at 813] and the employee may not unreasonably withhold their agreement. If a dismissal or disadvantage occurs as a result of the failure of an employee to accept changes to work patterns, the onus is on the employer to justify the dismissal or disadvantage.(Cameron at 897)
判断雇主调岗的正当性，应根据《雇佣关系法》第103A的标准，全面审查雇主的行为，是不是一个在当时具体情况下一个公平及合理的雇主本应当做的。这包括程序和实体的合理性两部分。
雇主在实施调岗时，首先程序上应当先做善意协商（good faith consultation）。这意味着雇主应当通知员工对其调岗的充分意图，给充分时间让员工表达意见，并认真考虑员工的意见。协商的目的在于寻求共识（2006年新西兰雇佣法庭Simpsons Farms一案）。
雇主在实施调岗时，实体上应当有真实的经营需要，而不是解雇其不满意员工的借口（2014新西兰上诉法院Grace Team Accounting一案）。2 Where questions are raised about the commercial rationale for the employer’s decision, or ulterior motives are alleged for the selection of a position and an employee for redundancy, the Authority’s evaluation may consider whether the employer’s decisions were made for genuine business reasons and not as a pretext for dismissing a disliked employee., Grace Team Accounting Ltd v Brake [2014] NZCA 541 at [85]. 雇佣法庭会充分考虑雇主所处的具体商业环境，结合雇主的决定做出是否有真实经营需要的判断。
需要注意的是，即使雇佣合同约定了调整权，但实际会造成对员工不公时，员工也有权要求雇主在实施调岗时做到公平合理。 另外，对怀孕员工不能胜任工作时，雇主有权安排员工做其他更轻量性质的工作并保持待遇不变，雇主也可要求提早休产假，雇主也应当保留职位。3 https://communitylaw.org.nz/community-law-manual/chapter-21-employment-conditions-and-protections/parental-leave/how-youre-protected-while-pregnant-or-on-parental-leave/, If your pregnancy prevents you doing your job properly or adequately, your employer can transfer you temporarily to another job. You can’t be fired for being pregnant. If no other suitable work is found, your employer can require you to start your parental leave early. Even if this is more than six weeks before your baby’s expected due date, you’ll still be entitled to 12 weeks’ primary carer’s leave after your baby is born, and your entitlement to extended parental leave also won’t be reduced.
雇主违反程序和实体规则对员工进行调岗，可能产生两种后果，一种是认定为推定解雇，即雇主调岗的行为使员工无法忍受只好辞职，并且是违法解雇unjustified dismissal；另一种如该不公平不至于到推定解雇，则构成对员工的违法损害unjustified disadvantage. 这两种情形除了雇主要承担改正的责任外，还可能要承担损害补偿金。
注释
- 1Cameron v Manawatu-Wanganui Area Health Board [1991] 2 ERNZ 886 and Niao v Tasman Pulp & Paper Company Ltd [1999] 2 ERNZ 805 both of which dealt with changes to employees’ work hours . From these, and the cases referred to in them, the principles to be applied are: The terms of the employment agreement are important in determining whether the employer’s actions are justifiable. Relevant matters are whether the hours which are sought to be changed are a term of the contract and whether changes to those hours come within the scope of the redundancy provisions. Where the hours of work are a term of an agreement, unilateral change will amount to a breach of the agreement which may only be justified if the change is technical or inconsequential. Where an employment agreement permits the exercise of management prerogative to alter an employee’s working conditions or job description, the employer must act reasonably and fairly before making such changes [Niao at 813] and the employee may not unreasonably withhold their agreement. If a dismissal or disadvantage occurs as a result of the failure of an employee to accept changes to work patterns, the onus is on the employer to justify the dismissal or disadvantage.(Cameron at 897)
- 2Where questions are raised about the commercial rationale for the employer’s decision, or ulterior motives are alleged for the selection of a position and an employee for redundancy, the Authority’s evaluation may consider whether the employer’s decisions were made for genuine business reasons and not as a pretext for dismissing a disliked employee., Grace Team Accounting Ltd v Brake [2014] NZCA 541 at [85].
- 3https://communitylaw.org.nz/community-law-manual/chapter-21-employment-conditions-and-protections/parental-leave/how-youre-protected-while-pregnant-or-on-parental-leave/, If your pregnancy prevents you doing your job properly or adequately, your employer can transfer you temporarily to another job. You can’t be fired for being pregnant. If no other suitable work is found, your employer can require you to start your parental leave early. Even if this is more than six weeks before your baby’s expected due date, you’ll still be entitled to 12 weeks’ primary carer’s leave after your baby is born, and your entitlement to extended parental leave also won’t be reduced.