A recent case: The relevance of tikanga in the employment jurisdiction

In a recent judgement the Employment Court considered the relevance of tikanga/ tikanga values (Māori customary law or values) in the employment jurisdiction and the existence of heightened obligations on public service employers. 

The situation 

The applicant, GF (order prohibiting publication of any names), was hired as an Assistant Customers Officers Maritime Border. GF was dismissed due to not being vaccinated against Covid-19.  

Customs had ordered their work to be performed by a vaccinated person, but GF argued vaccination was not required to carry out their duties. GF and four other staff from the same port had their employment terminated. 

The decision 

GF unsuccessfully challenged their dismissal with the Employment Relations Authority, however the Employment Court overtuned that and awarded GF compensation for breach of good faith and lost wages. 

The dismissal was unjustified, as Customs failed to act as a fair and reasonable employer: 

• GF only became aware one day before it came into force that they were subject to a vaccination order.
• Customs did not provide an opportunity for GF to consider matters and make submissions.
• Customers did not evidence a genuine despite to engage with GF. It failed to adequately or appropriately communicate with GF in a respectful, considered, and individualised that respected their mana. 
• The conclusion that GF was a frontline worker was reached without going through a proper process which met its obligations as an employer.

Tikanga/ Tikanga values 

In addition to finding the dismissal unjustified, during the hearing, EC Chief Judge Christina Inglis heard submissions on whether tikanga should have relevance in her decision-making process. “The tikanga/tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship-centric, based on mutual obligations of good faith, and focused (where possible) on maintaining and restoring productive employment relationships.”, said Christina Inglis. 

As Customs had voluntarily incorporated tikanga/ tikanga values into its employment relationships with employees, the Chief Judge believed they could be relevant in this case. It was clear that as a good public service employer, Customs is required “to honour a commitment it has incorporated into its employment relationship with all employees to act consistently with applicable tikanga/ tikanga values”. 

It is seriously arguable that section 73 of the Public Service Act 2020 reinforced the relevance of tikanga/ tikanga values. 

Conclusion 

This case puts all public service organisations on notice that they will likely be held to a higher standard and that the “good employer” obligations factor into the s 103A fair and reasonable employer test. Further, where tikanga/tikanga values are incorporated into the employment relationship, this needs to be given more than lip-service and organisations need to ensure they are living by the values they espouse. 

It is critical to undertake an individualised approach when implementing these values, as “one-size-fits-all" will not be sufficient. 

For more information: 

• [2023] NZEmpCC101 EMPC 317/2021 
• Dundas Street Dispatch - Employment Court holds employer to tikanga values 
• NZ Herald – Judge rules tikanga relevant in case of Customs employee fired over vaccine refusal 

The importance of incorporating Te Ao Māori into HR practices 

We have an obligation as good treaty partners to uphold and uplift te reo Māori and te ao Māori in all spaces and in the workplace across Aotearoa, New Zealand, but this should not drive us, instead we should be driven by understanding that it is the right thing to do! By engaging with and living the values of Māori, everyone benefits.  

Showing your people that you understand, respect, and incorporate their culture and their cultural identity is proven to have massive positive effects: cultural satisfaction, job satisfaction, cultural safety, employees’ wellness, productivity, positive employer branding, and more. 

Te Ao Māori values are about people, and about doing the right things. Similarly, HR practices must be values-led, people led, and led by doing the right thing. HR professionals play a vital role in incorporating the principles into HR policies and practices, to make sure the mana (spiritual power that instils respect and reverence) of all employees is uplifted. 

HRNZ is committed to supporting the development of culturally responsive and equitable practices, tools, and resources that inspire better workplaces for Māori and ultimately better workplaces for all Aotearoa: 

• HRNZ The Basics – HR Guide to Te Ao Māori & Te Reo Māori in the Workplaces [members-only]
• HRNZ Professional Development – Transforming HRM in Aotearoa