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Employment Law: 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.
Research released in March this year indicates that 93 per cent of Māori 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.
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 Court said the wānanga was no more than a process, like any other process an employer may choose when considering termination of employment. The Court said there was nothing to prevent it from giving recognition to concepts of tikanga and te ao Māori that may underpin the employer’s kaupapa and decision-making processes. The Court would, however, still assess whether that process was fair and reasonable, and found the kōhanga had not acted consistently with its own policy, rendering the dismissal of its employees unjustified.
In 2002, the Court in Good Health Wanganui v Burberry 5 considered whether Ms Burberry, a Māori woman working in Māori mental health services, had been unjustifiably dismissed after she allegedly took leave without approval. The Court found the decision to dismiss was substantively and procedurally unjustified but went further to say:
The fact an employee was Māori and working in a Māori setting should have been sufficient to have alerted them to a need for an appropriate procedure. The onus should not have been on the employee to have asserted her mana Māori or to plead for her cultural identity to be recognised.
Burberry indicates the responsibility to adopt culturally appropriate processes sits with the employer and that the failure to do so could, in and of itself, be enough to render a decision to dismiss unjustified.
In 2013, the Court contemplated whether the employer’s decision to dismiss Mr Taiapa for misusing his sick leave entitlement was justified. 6 Mr Taiapa argued his employer should have adopted a culturally appropriate approach to addressing his illness. The Court found, had Mr Taiapa raised his concerns at the time, it would not have been unreasonable to expect the employer to have treated his sickness accordingly and in a culturally appropriate manner, and concluded it may have acted unjustifiably if it had not. However, the critical factor was that Mr Taiapa had not raised the issues with his employer at the time, so his dismissal was found to be justified.
Step outside the ‘standard’
Engaging with Māori in the workplace is undoubtedly going to remain an ongoing challenge for workplaces into the future. Understanding and respecting te ao Māori and tikanga-based concepts will be critical for engaging with Māori and adopting culturally appropriate processes when needed. Employers will need to be prepared to step outside of what may be the ‘standard’ approach to employment issues and develop processes that work for the individual concerned. While this will require consultation and an open mind, it is wholly achievable, and the law is telling us that failing to do so may, in fact, create valid grounds for a personal grievance.
Alice Anderson (Kāi Tahu, Kāti Māmoe, Waitaha) is an active member of Te Hunga Rōia Māori o Aotearoa, the Māori Law Society, and is co-Editor-in-Chief of the (New Zealand Women's Law) Journal. She has a wealth of experience advising on a range of employment-related matters.
