EMPLOYMENT LAW ALICE ANDERSON
Authentically engaging with Māori The law has been telling us for decades that concepts of tikanga and te ao Māori can be relevant in the employment relationship. However, workplaces are still grappling with how to engage with Māori effectively and authentically, indicating this will remain a challenge for HR into the future. Alice Anderson, Associate at Dundas Street Employment Lawyers, explores case law that examines obligations on employers in this context.
Rā
esearch released in March this year indicates that 93 per cent of M ori experience racism every day.1 Behind these statistics are real people. Regardless of whether this racism is occurring in the workplace, employers should be looking to create safe spaces for their employees, and engage in ways that are mana enhancing, even during difficult times.
Recognising te ao Māori
Section 14 of the Public Service Act 2020 confirms the role of the public service includes supporting the Crown in its relationship with Māori under Te Tiriti o Waitangi. Section 73(3)(d) goes on to require the public service to act as a good employer, operating employment policies that recognise the aims and aspirations of Māori, the employment requirements of Māori and the need for greater involvement of Māori in the public service. Relevant to both the public and private sector, Chief Judge Inglis said in 2019 that employment law “must keep pace with society’s contemporary needs, standards and values as they evolve”.2 She says, “…there is now a growing recognition that tikanga Māori (and other aspects of the Māori world view) have a legitimate place in the law of New Zealand,” meaning that consideration of and engagement with cultural values and norms might be seen as part of the good faith duty.3
Assessing the fairness of actions Further to this, section 103A(2) of the Employment Relations Act 2000 confirms the test of justification is
“whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred”. There will be times when consideration of tikanga and te ao Māori will be relevant to the assessment of the fairness and reasonableness of an employer’s actions.
Understanding and respecting te ao Māori and tikanga-based concepts will be critical for engaging with Māori and adopting culturally appropriate processes. An examination of the case law reveals this is consistent with what the Employment Court has been telling us on the rare occasion it has been required to consider such issues. In 1996, the Court considered whether a kōhanga reo had unjustifiably dismissed two employees.4 The kōhanga operated a policy requiring decisions to be made by consensus of the whānau during wānanga (meetings). The
1 Dr Cherryl Smith, Dr Rāwiri Tinirau, Helena Rattray-Te Mana, Sr Makareta Tawaroa, Dr Helen Moewaka Barnes, Dr Donna Cormack, and Eljon Fitzgerald, Whakatika: A survey of Māori experiences of racism, Te Atawhai o Te Ao Charitable Trust, March 2021. 2 Chief Judge Inglis, Defining good faith (and Mona Lisa’s smile), To Work @ Law Conference, Wellington, 31 July 2019, p 9. 3 Chief Judge Inglis, Developing Themes in Employment Law: Placement of the Goalposts in a Changing World, New Zealand Industrial and Employment Relations Conference, Auckland, 5–6 March 2019, p 4. 4 Te Whānau a Takiwira Te Kohanga Reo v Tito 2 ERNZ 656.
20
HUMAN RESOURCES
SPRING 2021
