Significant Employment Court decision on tikanga obligations

24 July 2023

Significant Employment Court decision on tikanga obligations

Employers who voluntarily incorporate tikanga Māori in the employment relationship must act in accordance with this when taking steps under the Employment Relations Act 2000 (ERA), a key decision recently released by the Employment Court has confirmed.

The Employment Court’s decision in GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101 also confirms that for those public service employers covered by the good employer obligations under the Public Service Act 2020 (PSA)1 these obligations will be relevant to the test of justification and good faith obligations.

As a result, these public service employers are subject to heightened employer obligations, but the exact scope and nature of those obligations will vary depending on the context. Where tikanga Māori (referred to as ‘tikanga/tikanga values’ throughout the Court’s decision) is specifically incorporated into the employment relations framework, it will clearly be relevant in an assessment of whether a public service employer has acted consistently with its good employer obligations. However, this is not necessarily the only circumstance in which tikanga/tikanga values could be relevant to public service organisations’ good employer obligations.2

A SIGNIFICANT DECISION

We consider that the Court’s decision is significant in several respects. In particular, it indicates that:

 Where an employer operates an employment relations framework which purports to incorporate tikanga/tikanga values, the extent to which such commitments have been met will be relevant to considering the fairness and reasonableness of an employer’s actions in the Court’s assessment of whether or not a dismissal is justified under s 103A of the ERA.3 This applies whether or not the employee is Māori.4

 In addition, if an employer is a public service organisation, it will be subject to the good employer obligations under s 73 of the PSA. In particular circumstances, it is seriously arguable that an employer covered by this provision may also be

required to ensure that they understand and act consistently with tikanga/tikanga values relevant to their role as a good public service employer.5

 It is not, however, for the Court to decide what tikanga is or what tikanga values are. While the Court may consider tikanga, it will do so on the basis of evidence before it.6 But where the evidence demonstrates a commitment to act in accordance with tikanga, an employer should be obliged to do so.7

In this case, the Court concluded that the employer, the New Zealand Customs Service (Customs), had failed to act as a fair and reasonable employer and those failures led to the plaintiff (GF) being unjustifiably disadvantaged and dismissed.8

Of relevance to the matters covered by this article, if the Employment Relations Authority or the Employment Court finds that any workplaces’ conduct or practices are a significant factor in the personal grievance, the Court has the power under s 123(1)(ca) of the ERA to make recommendations to an employer concerning the action that they should take to prevent similar employment relationship problems from occurring. In the particular circumstances of this case, the Court recommended that:9

a) having committed to tikanga/tikanga values in its employment relationships, Customs take steps to engage pūkenga (see glossary) to ensure that it has in place capacity and capability to meet its obligations;

b) as a public service organisation subject to the heightened good employer obligations in s 73 of the PSA, Customs take steps to receive appropriate advice and training on the nature and scope of those obligations; and

c) Customs take steps to review its communications strategy to enable it to adequately and appropriately engage with the full range of employees in circumstances such as those which arose in this case.

Significant Employment Court decision on tikanga obligations

BACKGROUND

GF, the employee, was employed on a fixed term basis as an Assistant Customs Officer Maritime Border with Customs at a South Island port in October 2020 during the global COVID19 pandemic. At this point in time, the New Zealand Government had introduced a COVID-19 vaccination programme and eventually passed into law the COVID-19 Public Health Response (Vaccinations) Order 2021. This placed duties upon employers of “affected persons” to ensure work was done only by vaccinated people. GF did not want to be vaccinated and did not consider it necessary that their work be performed by a vaccinated worker. Customs, however, considered that GF’s work must be performed by a vaccinated worker, and GF was given notice of termination of their employment.

GF challenged that termination on the grounds of unjustifiable dismissal and was unsuccessful in the Employment Relations Authority. GF then appealed to the Employment Court.

We consider the key points of the appeal below.

THE PARTIES’ SUBMISSIONS

GF alleged that Customs failed to meet the standard required of a fair and reasonable employer by failing to engage with GF on matters that impacted their employment. GF’s allegations included (among others) that Customs failed to comply with the tikanga/tikanga values it had voluntarily imported into its employment relationships with staff.10 This argument was made despite the fact that GF was not Māori.

In response, Customs argued that it was entitled to take a cautious approach to health and safety within the context of the global COVID-19 pandemic, and that it acted fairly and reasonably by providing GF the opportunity for engagement. It denied that it was subject to a heightened standard in employment matters by virtue of having incorporated tikanga/tikanga values or by virtue of being a public service organisation.11

Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) was granted leave to intervene and be heard on the aspect of the case involving tikanga.12

HEIGHTENED EMPLOYER OBLIGATIONS

Section 73 of the PSA requires a chief executive of a public service organisation such as Customs to be a “good employer”, requiring (amongst other things) the chief executive, in employment policies and practices, to foster a workplace that is inclusive of all groups.13

A “good employer” is defined as an employer which operates an employment policy containing provisions generally accepted as necessary for the fair and proper treatment of

employees in all aspects of their employment.14 The PSA refers to a number of specified requirements that must be complied with to be a good employer.15

One of these specified requirements is s 73(3)(d) which requires a good employer to operate an employment policy which contains provisions that provide for the recognition of:

a) the aims and aspirations of Māori;

b) the employment requirements of Māori; and

c) the need for greater involvement of Māori in the public service.

The Court rejected Customs’ submission that this provision did not apply in GF’s individual circumstances because GF was not Māori. In that regard, it observed that GF’s individual employment agreement made express reference to the statutory good employer obligations, which include s 73(3)(d). Further, the Court also considered s 14 of the PSA (which addresses the Crown’s relationship with Māori) to be a relevant part of the statutory context and provide an indication that the intention was that Te Ao Māori would “be baked into public service operations, and not something which was only engaged with when interacting with Māori.”16

The Court then held that, in the particular circumstances of this case, it was clear that s 73 required Customs, as a good (public service) employer, to honour a commitment that it had incorporated into its employment relationship with all employees (Māori and non-Māori) to act consistently with applicable tikanga/tikanga values.17

TIKANGA AND THE EMPLOYMENT RELATIONSHIP

While the ERA does not expressly incorporate tikanga/tikanga values, the Court held that this did not preclude their incorporation, and said that certain values, such as mana, whanaungatanga, and kaitiakitanga, sit comfortably with concepts such as good faith and the restoration of employment relationships.18 The Court considered that tikanga/tikanga values were a particularly relevant consideration in this case given that Customs incorporated tikanga/tikanga values into documents relevant to the employment relationship with its employees. It did not consider this to be contrary to statute or binding precedent.19

Examples of such documents which were considered to be relevant to the employment relationship in this case (in addition to GF’s individual employment agreement), include Customs’ 2019–2023 Statement of Intent and Customs’ Code of Conduct. Both of these documents expressly refer to tikanga values such as kotahitanga, kaitiakitanga, manaakitanga and mana, and were accepted as forming part of the expectations of Customs’ employees.20

Te Hunga Rōia Māori o Aotearoa argued that it was not for the Court to decide what tikanga is or what tikanga values are. The Court accepted this. It said that it would consider tikanga on the basis of the evidence before it, and in certain circumstances may request expert evidence (for example, by way of a pūkenga).21 In this case, the plaintiff called a pūkenga, Mr Mair, to give evidence and Customs did not call

Significant Employment Court decision on tikanga obligations

its own expert evidence or seek to question or cross-examine Mr Mair.22

Ultimately, the Court acknowledged that it must take a cautious approach to cases involving complex tikanga evidence, creating a need for appropriate mechanisms and processes to safeguard tikanga and ensure it is properly considered.23

HOW CAN EMPLOYERS UPHOLD TIKANGA/TIKANGA VALUES IN THE WORKPLACE?

Expert evidence of tikanga in this particular case placed emphasis on the maintenance of relationships from the beginning to end of any process. This included “mana enhancing (not diminishing) conduct.”24

It is important to note that tikanga is highly context dependent and its application depends on the circumstances. In a case such as this, it was said that tikanga would involve (but is not limited to):25

a) face-to-face discussions with the affected employee with a view to reaching consensus;

b) ensuring that the right people were present at such discussions, including those who were

professionally close to the affected person;

c) designing and implementing an individualised process for the affected employee; and

d) ensuing minimal damage to the relationship, including post-employment if a continuing employment relationship was not possible.

This is the first case following the Supreme Court decision in Ellis v R,26 which discusses the role of tikanga in New Zealand law, where the Employment Court has clarified how tikanga/tikanga values apply in an employment law context, and how they apply to public service employers subject to the good employer obligations under the PSA.

Significant Employment Court decision on tikanga obligations

GLOSSARY OF M Ā ORI TERMS

Kaitiakitanga guardianship/stewardship

Kotahitanga unity

Mana spiritually sanctioned authority

Manaakitanga nurturing relationships

Pūkenga an expert who has knowledge and experience of tikanga

Te Ao Māori Māori world/worldview

Tikanga Māori

the customary system of values and practices that have developed over time that encompasses Māori law

Whanaungatanga relationships

[1] See s 73 of the PSA.

[2] See the discussion at [29] – [32] and [34].

[3] See generally at [35] and at [147].

[4] See generally at [23] and at [134].

[5] At [32].

[6] At [131].

[7] At [137].

[8] At [146].

[9] At [187]

[10] See generally at [7].

[11] See generally at [8].

[12] GF v Comptroller of the New Zealand Customs Service [2022] NZEmpC 41.

[13] Section 75(1)(b), referred to in s 73(2).

[14] Section 73(3).

[15] Section 73(3)(a)-(j).

[16] At [31].

[17] At [32].

[18] At [16].

[19] At [19].

[20] At [129]-[130].

[21] At [131].

[22] At [132].

[23] At [131].

[24] At [135]-[136].

[25] At [136].

[26] [2022] NZSC 114, [2022] 1 NZLR 239.

Significant Employment Court decision on tikanga obligations

This is a developing area of law. If you have any questions or would like to discuss this further, please get in touch with the contacts listed, or your usual Bell Gully adviser.

Disclaimer: This publication is necessarily brief and general in nature. You should seek professional advice before taking any further action in relation to the matters dealt with in this publication.