by: Amanda Douglas - Partner, and Sarah Hood, Solicitor
In recent years, we have seen an increasing exploration of the role of tikanga Māori across all areas of our legal system.
The growing role that tikanga plays in employment law, specifically, has also been explored by the Employment Court, in a number of key cases in 2023, including GF v Comptroller of the New Zealand Customs Services and Pact Group v Robinson. Those cases provide employers with some helpful guidance on the role that tikanga plays in employment processes.
GF v Comptroller of the New Zealand Customs Service
At issue, in GF v Comptroller of the New Zealand Customs Service, was whether an employee (GF) was unjustifiably dismissed and / or disadvantaged, when her employment was terminated for failing to get vaccinated against COVID-19.
In addition to whether Customs met its general employment obligations, the Employment Court considered the tikanga values that Customs had incorporated into its employment relations framework. Customs’ Code of Conduct explicitly referenced “mana” as being an expected characteristic of the employment relationship. Similarly, Customs’ Whanonga Pono (Guiding Principles), included tikanga values, which were explicitly referenced in GF’s employment agreement.
As a result, the Court found that Customs had incorporated tikanga values into its employment relationships, meaning that they were relevant to all staff and not just its Māori employees. The Court further found that, where an employer incorporates tikanga into their employment relations framework, the extent to which these requirements are complied with, will be relevant to assessing whether the employer has acted fairly and reasonably, and / or in good faith.
The Court also concluded that Customs had heightened obligations to ensure that its employment process complied with tikanga, because of its obligations, as a government department, under the Public Service Act 2020.
Ultimately, the Court said that the way in which Customs dealt with GF was not mana-enhancing and that it had failed to comply with its tikanga obligations. It had as also failed in its general obligations to act as a fair and reasonable employer and in good faith. This included because Customs failed to engage with the GF in a sufficiently individualised manner and was pre-determined in its decision making.
Pact Group v Robinson
In Pact Group v Robinson, an employee (R) alleged that she had been unjustifiably dismissed after her employment was summarily terminated, at the end of a disciplinary process. The decision to terminate her employment was based on findings that she had falsified her timesheets and made fraudulent claims for payment.
Notably, during the disciplinary meeting, which occurred via Zoom, R:
The Employment Court carefully considered the points that R had raised, and how the employer had dealt with them, before concluding that R had been unjustifiably dismissed. The Court said that it was relevant that R is Māori and had raised concerns about the impact of the employment process on her mana. There was nothing to suggest that these cultural concerns were seriously considered or explored by the employer or factored into the way in which the employer responded. Rather, the Court said that “it is apparent that the process was hurried and conducted in a distanced, impersonal way that undermined, rather than maintained, [R]’s mana”.
The Court further noted that the employer did not request further information about R’s personal challenges and that, while there may be instances in which it is fair and reasonable to conduct a disciplinary meeting via Zoom, and to decline an in-person meeting request, this was not the case here.
Potential impacts of Coalition Agreements on Tikanga Māori in Employment
The new Government’s Coalition Agreements sets out National, ACT and New Zealand First’s commitment to progress a number of priority policies; these may have a significant impact on tikanga, if they eventuate. This, very broadly, includes an overhaul of any legislation containing the principles of Te Tiriti o Waitangi and clearly defining, in legislation, what those principles are.
What impact these measures are likely to have on employment law, should they be implemented, remains to be seen. However, if they are passed into legislation, they could, over time, filter down into the courts and influence the way in which tikanga is applied, including in the employment jurisdiction. So, watch this space.
What does this mean for Employers?
As it currently stands, and pending any potential law changes implemented under the new Government, the key things that employers need to keep in mind when it comes to tikanga Māori and employment processes are that:
If you or your entity have any questions in relation to how tikanga Māori or any of your current workplace policies may affect any processes that you are undertaking, please contact our specialist team for further information or advice.
 GF v Comptroller of the New Zealand Customs Services  NZEmpC 101
 Pact Group v Robinson  NZEmpC 173Disclaimer