Plumber promised exemption from 90-day trial period, then sacked within it, awarded $14,300
Wednesday, 10 July 2019
A plumber who was promised exemption from the 90-day trial clause, but fired under it while on ACC leave, has been awarded $14,300 by the Employment Relations Authority.
Thomas Rutene, whom his employer, Watermart, described as a 'hardworker' worked for the Wairarapa-based construction and maintenance company for about three months last year.
Rutene had been working as an apprentice plumber in Wellington but decided to take up a job at Water Mark for the shorter commute.
On April 3, Watermart director Richard McNaughton emailed Rutene the employment agreement, which said he was not subjected to the 90-day trial because he had given up a good job in Wellington.
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'Given that you are giving up a good job we will delete the trial period from the contract so you will not be subject to a 90-day trial period to give you confidence that this is the right move for you and your family,' McNaughton's email said.
But McNaughton claimed Rutene was hesitant about approaching his current employer for a reference so he made other inquiries.
Those referees raised some concerns and he decided to re-enforce the 90 day trial period.
But Rutene denied this was discussed. Rutene signed his contract and began work on April 24.
McNaughton grew concerned about Rutene's relationship with other staff because he made comments that offended the conservative views of some of his colleagues.
On June 9, 2018, there was an altercation over comments Rutene's colleagues made about his personal life. During this shift he also suffered an injury at work.
He called McNaughton to inform him about the injury and altercation but ended up only talking about the latter.
Rutene said he was told not to confront the other employee and not to come in to work on Monday morning.
He interpreted this as an unjustified suspension.
But McNaughton denied this and said he told Rutene, who was 'extremely angry' over the phone, to not approach the colleague and he told the other colleague not to come to the firm's yard on Monday morning.
Rutene claims he woke up in extreme pain and an injured elbow he described as being like a softball.
Rutene was on ACC leave till late July.
On July 6, McNaughton dismissed Rutene under the 90-day trial clause while he was still on ACC.
The Employment Relations Authority said there was no evidence to prove that the 90-day trial clause had been inserted back into Rutene's employment agreement.
The authority said both the agreement and initial email stated Rutene was exempt from the 90-day trial clause.
'I conclude the 90-day trial was withdrawn and Watermart cannot rely upon it to justify the dismissal as it tries to do. It follows the dismissal is unjustified,' the authority said.
'I also note Watermart concedes Mr Rutene was a hard worker and its concerns revolved around his interaction with others. This might also have impeded or undermined a possible dismissal reliant on other grounds.'
Rutene supported his claim with evidence of the hurt he felt. Most came from financial pressure and the effect this had on his relationship with his family. There was also reference to a need for counselling.
Watermart Wairarapa has been ordered to pay Thomas Rutene $8000 as compensation for humiliation and injury to feelings and $6300 in lost wages.