Protecting the Rights of [Migrant] Workers - by Sharon Ritchie

New Zealand employers, the Employment Relations Authority and the Employment Court have a poor record in relation to migrant employees. Migrants from poor countries are denied basic rights such as the minimum wage. Migrants from First World countries have their careers "destroyed". Good faith went out of the window years ago.

It was good to see a different attitude from the Authority to its legal obligations in the case of Wells v Millson Plumbing and Draining Ltd.

Scott Wells, a UK qualified plumber, answered an agency ad for a job as a plumber by Millson in Nelson. New Zealand did not recognise his British qualifications so Mr Wells was to work in labouring jobs while he requalified in New Zealand.

MrWells came out from England at his own expense in mid-August 2016 but was almost immediately dismissed by Millson and left Nelson before the end of the month. He brought a claim for unjustified dismissal in the Employment Relations Authority.

Millson said they did not dismiss Mr Wells, but only started a performance review process.

Reading that in a case report from the Authority, usually the heart of any right-thinking Kiwi would sink. The employee would say the "review" was a sham or the "investigation" went hand in hand with increasing threats from the employer and MBIE that if the employee does not resign quietly, they will be "destroyed".

These cases often involve migrants from overseas. They do not realise how the New Zealand system works. They do not realise that if they do not do what the employer says, a mediator will call a meeting where they can be threatened in secret, and if they still don't agree to resign, all they can do is go to the Authority.

But Mr Wells' case was different.

Mr Wells claimed unjustified dismissal, and Member van Keulen considered what the law required for there to be a dismissal, and for it to be justified.

Within days of Mr Wells starting his job, Millson had decided to get rid of him. There was a 90-day trial period in his contract, which he signed without crossing that out although he had been told orally that it didn't apply to him.

Millson's claim was that Mr Wells did not appear to have the skills to requalify as a plumber in New Zealand. Mr Millson worked with him for a few days and then Mrs Millson called him in to meet with her and her husband on the Friday afternoon.

The versions of what was said in that meeting differed.

Mr Wells said that he was dismissed by Mrs Millson.

Mr and Mrs Millson said they said they did not think he would pass the New Zealand plumber qualifications. They asked him to contact Ms Dunbar at the agency.

Ms Dunbar said they would look for a replacement.

Member Peter van Keulen found that the evidence indicated that there had been no unequivocal "sending away" of Mr Wells by Millson that would amount to an unjustified dismissal. He found that Mr and Mrs Millson did however indicate that they were going to terminate his employment within the 90-day trial period.

The conversation with the agent, however, was found to amount to a "sending away", including a reference to him having to "return home*. Member van Keulen found evidence for that in an email from the agent to Millson, and also in evidence from Mr Wells' uncle and the Millions' son that Mr Wells had taken the conversation with the agent to be a dismissal.

Member van Keulen therefore found that Mr Wells had been dismissed.

On the question of whether the dismissal was justifiable, Member van Keulen said Millson should have explained its concerns to Mr Wells, given him a chance to respond and considered his explanations - before any decision to dismiss. Otherwise, the process was unfair, and could not justify dismissal.

What Millson actually did was, Member van Keulen said, "so flawed there was no basis to decide that dismissal was appropriate".

Like many people on the receiving end of New Zealand's employment practices, Mr Wells suffered badly from the trauma. Member van Keulen considered the medical evidence and awarded $35,000 for humiliation, loss of dignity and injury to feelings.

Member van Keulen decided that Mr Wells should be reimbursed for what he had lost in relation to his personal grievance, but that as he would probably have been dismissed under the 90-day period in any event, it was only the three months starting-point referred to in the legislation. Mr Wells was also awarded his relocation expenses. These together were about $17,000.

The determination of Member van Keulen is notable for his understanding and use of legal principles. It includes a non-publication order that is used to suppress information about matters that should be private and are not of public interest.

Millson could have avoided the successful claim by holding a proper investigation process, which is not very demanding. Member van Keulen's thoughtful and legally reasoned determination should also be a good example to other members and judges.

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