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