Increasing Importance of Tikanga in Employment Relationships10 November 2023
In two recent Employment Court decisions the application of tikanga was a significant aspect.
Tikanga, or societal lore within Māori culture, can best be described as behavioural guidelines for living and interacting with others. Tikanga tends to be based on experience and learning that has been handed down through generations, also deeply rooted in logic and common sense.
Tikanga helps to ensure processes and decisions are just and fair. Tikanga includes principles of consensus building, respect, care, balance, intergenerational equity and relationship building.
Tikanga was central to the Supreme’s Court’s decision to allow the late Peter Ellis’s appeal against his convictions in the Christchurch Creche case, to be heard after his death.
One of the factors which Counsel for Mr Ellis submitted the Court should take into account (and weighed in favour of continuation of the appeal) was the interests of the appellant's family in clearing his name. In the course of argument on that point, a question from the Court raised the issue of how tikanga might factor into this analysis. Glazebrook J's judgment sheds further light on the potential thought process behind that question, stating:
"It is true that the appeal concerns a Pākehā appellant and none of the complainants are Māori as far as we are aware. The principles developed on posthumous appeals must, however, be capable of meeting the needs of all New Zealanders, including Māori. … Further, and more generally, a consideration of tikanga may provide valuable insights into the appropriate test to apply when courts are faced with an application to continue an appeal despite the death of an appellant."
Following the Court's question on the relevance of tikanga, the hearing was adjourned to allow further submissions on tikanga.
A two-day wānanga was held involving nine tikanga experts to discuss whether tikanga was relevant; if so, which aspects; and how those aspects of tikanga ought to be taken into account.
The Court was unanimous that tikanga has been, and will continue to be, recognised in the development of the common law of New Zealand in cases where it is relevant. Notably, this was simply a confirmation by the Court, rather than a new development.
In terms of when tikanga may be relevant in a case, the Court recognised that, in addition to its inclusion in the common law, tikanga frequently now forms part of New Zealand law as a result of being incorporated into specific statutes and regulations.
The Court unanimously recognised that tikanga may be relevant in the exercise of judicial discretions.
The Court (by majority of Winkelmann CJ, Glazebrook and Williams JJ) held that the colonial tests for incorporation of tikanga in the common law should no longer apply. This is because the colonial tests import the (wrong) view that law inherited from the United Kingdom should be presumptively dominant and that tikanga can be "judged" by reference to its consistency with Western values. Rather, the relationship between tikanga and the common law will evolve over time and in context.
The majority also:
- Accepted that Tikanga was the first law of New Zealand and that it continues to shape and regulate the lives of Māori.
- Cautioned that the courts must not exceed their function when engaging with tikanga, so as to not impair the operation of tikanga as a system of law and custom in its own right. As Williams J noted, the courts do not have the mandate nor expertise to "declare" the content of tikanga in the way that they authoritatively declare the common law. In New Zealand's system where tikanga has force and integrity with or without the common law, he said, "judges must be comfortable engaging with tikanga principles yet understand that they cannot change tikanga. And while they may apply tikanga in appropriate cases they must also understand that they cannot authoritatively declare it for general purposes".
- Commented that the appropriate method of ascertaining tikanga (where it is relevant) will depend on the circumstances of the particular case.
Quite naturally, the impact of tikanga is now being felt in the employment jurisdiction, as evidenced by two recent cases.
GF v Comptroller of the New Zealand Customs Service  NZEmpC 101
This case relates to the dismissal of an employee who was employed as an Assistant Customs Officer Maritime Border on a fixed term contract who refused to be vaccinated against COVID-19.
The Employment Relations Authority initially held that no personal grievance for unjustified dismissal and disadvantage was established. It found that Customs had acted as a fair and reasonable employer in the circumstances. This decision was appealed, including on the basis that Customs had failed to act in accordance with tikanga principles.
The Employment Court found that GF was unjustifiably dismissed and suffered unjustified disadvantage. Customs was ordered to pay $25,000 compensation and three months’ lost wages.
The Court found that Customs failed to follow a fair and reasonable process, failed to adequately engage with GF, failed to carry out adequate and individualised health and safety assessment, failed to engage with GF in a way that was mana enhancing and the decision to terminate was predetermined and fatally flawed.
The Court also concluded that Customs had “heightened good employer obligations” under s 73 of the Public Service Act 2020 and had incorporated tikanga values into its employment relationship and then failed to comply with them, thereby breaching its obligations to GF.
Note that GF was not Māori; however, the application of tikanga values was not limited to those of Māori descent, given tikanga was incorporated generally into Customs’ relationships with all staff as a result of its policy statement.
To see the full case, click HERE.
Pact Group v Carey Robinson  NZ EmpC 173.
This case involved a disciplinary process of an employee who was employed by Pact Group as a community support worker. The employee had approximately 15 years’ service and was dismissed for serious misconduct for failing to complete stipulated hours of work and claiming for hours that were not actually worked.
The Employment Relations Authority found that Ms Robinson has been unjustifiably dismissed and Pact Group was ordered to pay her $20,000 compensation.
Pact Group unsuccessfully challenged that determination in the Employment Court, which increased the hurt and humiliation award to $31,000. It also awarded three months’ lost wages and payment equivalent to three weeks long service leave.
- Pact Group sought to conduct a disciplinary process with Ms Robinson via a virtual meeting, and refused her request to meet in-person.
- At the meeting Ms Robinson reiterated that she had wanted to meet in-person and said that the way in which Pact Group had dealt with matters had left her feeling “stripped of her mana, culturally disadvantaged, and that this mishandling of [her] mana had resulted in feelings of shame.” She also touched on her personal circumstances, including that she was the carer of her mother and that she was suffering herself from a health condition.
- She said she did not feel that the way the meeting was conducted enabled her to talk to the manager in a direct and personal way; she formed the impression that he was not listening to her; and she struggled to hear what he was saying.
- Ms Robinson expressed the view that the manager had unfairly made assumptions that when she was not with a client or driving during the workday, she was not working. She pointed out there were numerous other tasks that she was required to attend to, including engaging with stakeholders and attending to arrangements to provide support to her clients in order to meet their complex needs.
- The next day the manager wrote to Ms Robinson stating his decision was that she had failed to provide a reasonable explanation for her actions, and as a result she was dismissed for serious misconduct with immediate effect.
The Court commented that the fact that Ms Robinson is Māori and raised concerns about the impact of the process on her mana, was relevant, and said that there was nothing to suggest that these concerns were seriously considered, explored or factored into the way in which the company responded. It said “indeed it is apparent that the process was hurried and conducted in distanced, impersonal way that was undermined, rather than maintained, Ms Robinson’s mana”.
The Court also commented that there may be associated risks with conducting disciplinary processes via Zoom, and while there may be circumstances in which it is fair and reasonable to conduct a disciplinary meeting via Zoom, and to decline a request from an affected employee for an in-person meeting, this was not the case here.
No medical evidence (e.g specialist report) was provided to support compensation for hurt and humiliation, but the court ruled Ms Robinson’s sister gave evidence of Ms Robinson being substantially impacted by feelings of whakamā, which she described as deep shame, hurt and embarrassment; and her evidence was persuasive of the impact of the dismissal on her wellbeing.
For a more comprehensive commentary of this matter click HERE
- In both cases, as the organisations had incorporated tikanga into the workplace via company policies, the Court held that tikanga principles should have been applied in both cases.
- Even in the absence of tikanga principles being embodied in company policies, great care must be taken when dealing with employment relationship issues to ensure tikanga is applied where warranted in the circumstances.
- As the Supreme Court noted, tikanga was the first law of New Zealand and it continues to shape and regulate the lives of Māori. The English common law does not dominate tikanga.
- In New Zealand's system where tikanga has force and integrity with or without the common law, judges must be comfortable engaging with tikanga principles yet understand that they cannot change tikanga.
- The appropriate method of ascertaining tikanga (where it is relevant) will depend on the circumstances of the particular case.