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Sacked after 10 days: Kiwi How UK plumber’s dream went south

Unfairly dismissed, Scott Wells hasn’t worked since – and, reports Steve Kilgallon, his payout went in lawyers’ bills.

Scott Wells came to New Zealand excited about starting a new life. It lasted just 10 days. Unfairly dismissed by a Nelson plumbing firm, he was forced to fly home to England – and, five years on, remains medically unable to work.

He’s still fighting through the courts for the compensation he believes he’s owed for a nightmare experience that left his life in ruins.

While winning a substantial judgment in his favour, Wells’ costs have outweighed the penalties. ‘‘Where is the justice?’’ he says. ‘‘We won – but we’ve still lost.’’

For his former employer, Vicki Millson, the whole experience has been ‘‘absolutely devastating, and it’s taken a big toll on my mental health’’.

In April 2016, Wells saw an advertisement placed by Christchurch-based recruitment firm Canstaff for qualified plumbers to move to New Zealand. He was 29, had passed his British plumbing exams and had been on the tools in Essex, near London, for more than five years.

Wells passed Canstaff’s checks and by May recruitment agent Janine Dunbar had two opportunities – one was working for the Nelson franchise of Laser Plumbing, owned by Vicki and Stephen Millson.

Because Wells’ UK qualifications weren’t recognised here, he had to sit New Zealand exams within three months. Until then, he would technically be a skilled labourer, and need a certified plumber to sign off his work.

There were two possible red flags: First was the advice of Canstaff’s nominated immigration agent, Nils McFarlane, that to speed up Wells’ arrival in New Zealand, he should apply for a working holiday visa, not a skilled work visa.

The other was a contract that included a 90-day trial clause – something which would surely have alarmed someone relocating across the world.

The paperwork took some time, and Wells himself dragged his feet, but eventually left England on a plane to Christchurch on August 14, 2016. ‘‘He looked really happy to be embarking on a new and exciting adventure,’’ his mother, Amanda Wells, said in a brief of evidence to the Employment Relations Authority (ERA). ‘‘I took a photo of him when he left. He had a big smile on his face.’’

On arrival, Wells was welcomed by the Millsons, and put up in their spare room. Vicki Millson seems to have been a great host – she began showing him flats and helped him organise a New Zealand bank account. ‘‘We did everything we could to make him feel welcome and make his move to New Zealand as easy as possible,’’ she told the ERA.

Wells describes some minor teething problems: Because he didn’t know the roads, he relied on the company’s GPS system, which sent him to the wrong address a couple of times. There were some differences in measurements and working styles, but he felt like he was settling in well.

On the Friday morning of his second week at work, Wells said Vicki Millson said that if he wanted to go and sign the paperwork for his new flat during the day, he could.

So it was a surprise when, a few hours later, he was summoned to the office to meet Vicki and Stephen Millson. That’s where it all went wrong.

The theme of the meeting is undisputed: The Millsons wanted to tell Wells they weren’t happy with his work, and that a major client had said he never wanted Wells on his building sites again.

Stephen Millson told the ERA it was ‘‘clear to me pretty quickly’’ that Scott didn’t have the required skills, and differences between the two countries did not explain his lack of basic skills.

Wells says Stephen got aggressive and banged on the table, and he panicked, thinking he would be assaulted. Stephen denied that, writing: ‘‘I am unbelievably floored that Scott has described my manner as intimidating.’’ Vicki says now: ‘‘We both felt it was established [by the ERA] he was lying about that.’’

How it ended is pivotal: Wells left the room convinced he had been dismissed, saying the couple had said ‘‘that’s it, it’s not going to work out’’ and to contact Dunbar. He told the couple’s son, Sam, who was also his workmate, he’d been sacked, and phoned his family to share the bad news.

The Millsons admit telling Wells to ring Dunbar, but say they asked him to go away and think about the way forward. ‘‘We knew, and know, we didn’t dismiss Scott,’’ Vicki Millson’s witness statement said. ‘‘That was never our intention going into the meeting, and it didn’t change during the meeting. We would not leave him in the lurch like that.’’ Stephen Millson agreed, saying if they were sacking him, they would have discussed notice periods, final day of work, and when he would move out of their home.

Sam Millson told the ERA that he sat in Wells’ van with him, and Wells told him he’d been dismissed, but he tried to talk him around. ‘‘Anything I tried to say to Scott did not seem to sink in. Instead he was just saying he could not afford to live here, and he would have to go home.’’ But what was pivotal was Wells’ phone call to Dunbar that afternoon. He says she said ‘‘some awful things’’ and essentially told him he had failed and to go home.

Dunbar didn’t give evidence to the ERA, and she referred the Sunday Star-Times to Canstaff owner Matt Jones, writing in a series of texts that this reporter should be writing stories about Covid instead of ‘‘an old case closed’’.

But Dunbar did email the Millsons shortly after that phone call, writing that she’d told him he wasn’t meeting their needs, didn’t seem capable of doing so, and adding: ‘‘It was not until I said ‘look it’s not personal, they like you as a person, we all wanted it to work, however it is clear you are not working out, and you will no doubt have to return home’.

‘‘Then he said, ‘but I spent a lot of money to come out here’. I said ‘we have all invested a lot of time and money on you. However, if your [sic] not meeting the clients needs, it’s unfortunate, however that’s the problem’ . . . Anyways in the end I wished him all the best and the penny has dropped.’’

At 6.10pm that night, Dunbar wrote a note in her internal files: ‘‘Has not worked out at all with Laser Plumbing. He will be going home.’’

When the case did make it before the ERA, authority member Peter van Keulen essentially said that while the Millsons didn’t sack Wells, Dunbar, as their agent, did; a ‘‘process that was so flawed, there was no basis to decide that dismissal was appropriate’’.

Vicki Millson said she agreed with the ERA that they didn’t sack Wells; Dunbar did. She says they considered a civil case against Canstaff, but ‘‘it’s taken such a huge toll . . . we just wanted to move on.’’ She said she found Dunbar’s actions ‘‘unprofessional’’.

She says the couple wanted to try to get Wells’ work up to standard, ‘‘but we weren’t given the opportunity’’ – and after that, if they had to sack him, felt they had a backstop with Canstaff, whom they believed would offer him an alternative job.

‘‘I didn’t realise he didn’t see it that way, and of course his conversation with Janine didn’t give him those options. She was clear it was over, and he was on his own, and I didn’t know she had said that to him.’’

Wells – who says he was given no warning signs and felt he was working well and not underperforming – was distraught, and had to return to a house where he no longer felt welcome. The atmosphere was, of course, awkward.

There’s dispute about what was said at home,

I can’t move on with life. Can’t do anything. No hope of anything . . . Why should I have to foot the bill? They are the ones who made it happen.’’ Scott Wells British plumber

but Wells packed his bags and on Sunday accepted a lift into Nelson to go to Christchurch and fly home. As he left, says Wells, they wished him luck. He says he was placatory because he was frightened and wanted to leave. Vicki remembers: ‘‘He gave me a hug, shook Steve’s hand, and said ‘no hard feelings’ [Wells denies this]. We had no clue what was going on.’’

In Christchurch, Wells spent 10 days organising a flight home, paid for by an uncle, and consulting lawyers. Short of money, he says he lived off noodles and tinned tuna and was so worried he stayed almost entirely in his bedroom, with a chair wedged under the door handle in case someone tried to get in. He says hotel staff called to check on his welfare when he didn’t go outside for four days.

By the time he returned to England, he had been away for just under a month. ‘‘I got home and slept for two days. It felt surreal. And embarrassing.’’

His life was in ruins. It’s difficult to go into detail about the troubles that have befallen Wells since then, as they have been suppressed by the ERA, but he cannot work. He says: ‘‘I understand we are in 2021, but I am still trapped in 2016. Five years have gone by, but for me it’s like it happened a month ago’’.

In her evidence to the ERA, his mother, Amanda Wells, said: ‘‘Scott has been a completely different person since he came back from NZ. He has effectively lost four years of his life, and all his confidence.’’

That helps to explain why the events of two weeks in August 2016 are still being resolved in late 2021.

Wells initially raised an unfair dismissal claim before leaving New Zealand. The Millsons’ lawyers argued Wells had ‘‘abandoned’’ his employment and declined mediation. Vicki Millson says they felt they’d done nothing wrong, so decided not to engage. Short of money, Wells dropped the case.

He renewed it in August 2019, and after various delays – many, Wells argues, caused by the Millsons’ tardiness – the case made it before the ERA, where Wells claimed unfair dismissal. Van Keulen delivered his decision in January this year, awarding him $51,749.27.

Van Keulen said Wells had suffered an ‘‘extremely adverse reaction to his dismissal’’ but took the ‘‘unusual approach of not outlining my findings in terms of identifying the harm suffered’’ and suppressed details of his health issues. For that, the authority awarded Wells some $35,000 – far less than he had asked for.

Wells also applied for four years’ worth of lost wages, but van Keulen awarded him just three months, or $12,480, stating that there was no automatic entitlement to a full compensation award, and it was probable, given their misgivings, he would have left the Millsons within three months anyway.

Wells thinks that’s ‘‘absolutely ridiculous’’, and he was never given a cut-off date to pass the exam by, but the three-month clause seems to have hamstrung him. ‘‘How do they know I wouldn’t have passed the test? If I wasn’t going to pass it, surely I would never have got through their recruitment process.’’

But employment lawyer David Fleming – who wasn’t involved in the case – said it was standard for the ERA not to order lost wages be repaid if someone was out of work for a long time, and someone on a temporary visa – like Wells – would have a hard time arguing their job was likely to be long term and the authority’s decisions on lost wages were, by necessity, ‘‘speculative’’.

Van Keulen also took what he said was the ‘‘unusual’’ step of ordering payment of $4269.27 towards Wells’ expenses – though, notably, not his medical expenses, saying they were a matter for a separate costs negotiation.

Wells says he was shocked by the award: ‘‘I never expected to get four years’ worth of wages, but whatever I got would’ve gone towards getting me better, that’s all I care about now. I can’t move on with life. Can’t do anything. No hope of anything.’’

He’d hoped for two years’ money to fund his medical treatment. ‘‘Why should I have to foot the bill?’’ he says. ‘‘They are the ones who made it happen.’’

Vicki Millson said they disagreed with the ruling, but ‘‘respected’’ it. After some delays, the Millsons have paid up in full, after saying immediate payment would push them into liquidation. Wells engaged specialist lawyers to threaten liquidation proceedings and issued a statutory demand. On April 1, the ERA added to the Millsons’ bill, awarding Wells costs of $8904 (he had asked for $21,967), an amount increased because of slow responses of the Millsons to the process and their rejection of an offer from Wells in August 2020 to settle the entire case for $30,000. Wells thought that amount ‘‘appalling . . . considering the amount of time the Millsons have taken to drag this out’’.

Both sides could have appealed to the Employment Court. Vicki Millson said they had decided not to as they ‘‘made a conscious decision to focus on the positive stuff in our lives’’. Wells wanted to, but was advised by lawyers not to proceed and is frustrated that there are few avenues left for him to pursue legally.

Wells also considered a complaint to Immigration New Zealand (INZ) and took advice from experienced immigration lawyer Alistair McClymont.

McClymont said if an accredited employer ‘‘encouraged an offshore applicant to use a different occupation and visa type in order to circumvent immigration requirements, it undermines the integrity of the immigration system’’.

In a statement, INZ general manager Nicola Hogg said working holiday visas were intended primarily for people on holiday here, and ‘‘individuals who are coming to New Zealand for the primary purpose of permanent employment should be applying for a work visa’’.

Wells’ immigration agent, Nils McFarlane, said his work with Wells was a long time ago, so he couldn’t comment specifically, but said it was ‘‘common practice’’ for those who qualified for a working holiday visa to arrive first on that visa, then transfer to a work visa once they were settled. He said the working holiday visa actually offered more security as it was not tied to an employer, and he would only apply for a visa that a client asked for.

Employment lawyer Fleming said the case was ‘‘an extreme example, but the issue it highlights is familiar’’. He said he believed it was ‘‘fundamentally unjust’’, but legal, to bring someone into New Zealand for work but still have a trial period.

Wells says he was assured by Dunbar there would be no trial period; the Millsons say as a small business they wouldn’t have hired anyone without that security.

What duty of care did Canstaff owe Scott Wells? Back in 2016, Canstaff operations manager Jim Henderson wrote him an email of apology. And Henderson had a candid conversation with Wells’ then-advocate, Peter Moore, in which he said the company would usually find another job for an unsuccessful client. It was ‘‘quite a concern’’ that didn’t happen, and if Dunbar had decided to simply move Wells on, ‘‘that was not her decision [to make]’’.

‘‘The thing that concerned me is that he may not have had the skills to fit them, but he may have had skills to fit somewhere else,’’ Henderson said. ‘‘I certainly had a robust conversation with her [Dunbar] around the fact that we don’t just give up on people.’’

Wells went to both the UK Information Commissioner’s Office and the NZ Privacy Commissioner to demand all Canstaff’s records referring to him, and the UK Commissioner formed a view that Canstaff had breached the UK Data Protection Act.

Asked if bringing staff in on working holiday visas was standard practice, or if the company had changed any processes since the Wells case, Canstaff owner Matt Jones said: ‘‘To be honest, I’d rather not comment on that case. It was a long time ago, we had nothing to do with it. And we’ve had nothing to do with it since that time, so we will leave it at that.’’

Wells says he’s spent about $45,000 on legal costs, is substantially in debt to his parents and uncle and feels he hasn’t cleared his name. ‘‘I wouldn’t wish this on anyone. If you could experience 10 minutes of what I suffer with every day, you would want to kill yourself. You cannot physically cope with it.’’

Vicki Millson hopes the saga is almost over. ‘‘We really want to move past it and want it to be over. Honestly, I do feel really sorry for him, and I understand this now is all he has in his life, this fight.’’

Because of the suppression order, the Sunday Star-Times cannot traverse Wells’ medical issues, but they are serious and genuine, and backed up by multiple medical professionals. He lives off $480 a fortnight in sickness benefit.

‘‘I’ve got nothing. I am struggling from week to week to survive. Where is the justice?’’

Focus

en-nz

2021-11-21T08:00:00.0000000Z

2021-11-21T08:00:00.0000000Z

https://stuff.pressreader.com/article/281981790847370

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