In a recent landmark decision, the Employment Court has considered the relevance of tikanga/tikanga values in an employment law context. This is the first case of its kind within the employment jurisdiction but follows the Supreme Court’s decision in the Peter Ellis case in which it was confirmed that tikanga has been, and will continue to be, recognised in the development of the common law of Aotearoa/New Zealand.
The case was brought by an employee (“GF”) of Customs who was dismissed from their employment as an Assistant Customs Officer Maritime Border due to their decision not to be vaccinated against COVID-19. Customs had initially advised employees that vaccination was not compulsory but took the approach of encouraging staff to be vaccinated. Having been advised that it was not required, GF did not read the communications subsequently issued by Customs relating to this. They gave evidence that they felt marginalised and disengaged due to Custom’s communications strategy of seeking to laud employees who were vaccinated.
As things developed within the COVID-19 environment, Customs undertook a health and safety risk assessment of all roles and determined that GF’s role did require vaccination. Separately, GF’s role also came within the definition of an “affected person” under the Government issued Vaccination Order, which passed into law on the day that GF’s employment was terminated.
Customs dismissed GF based on both the health and safety risk assessment and the Vaccination Order.
The Court held that Customs failed to genuinely engage with GF and to communicate with them in a respectful, considered, individualised manner which respected their mana. Instead, the approach taken by Customs was found to be a box ticking one, and consequently the dismissal was found to be unjustified.
Of particular interest in the case was how the Court approached the role of tikanga in employment law. Customs had incorporated tikanga/tikanga values into its employment relationships by referring to them in its Organisational Principles. Although the Employment Relations Act does not expressly refer to tikanga, the Chief Judge found that these values “sit entirely comfortably with an area of law which is relationship-centric” and based on mutual obligations of good faith.
The Chief Judge also considered the Public Service Act and the specific obligations it imposes on public sector employers to recognise the aims and aspirations and employment requirements of Māori. Based on this, she found that te ao Māori, the Māori world view, were “baked into public service operations”.
Interestingly, the employee in this case was not Māori and nor did they seek that a tikanga based approach be taken during the employment process. However, the Court rejected the submission that tikanga was relevant only to Māori employees, finding that “It cannot be right that, after having incorporated a commitment to certain values into the employment relationship with staff, Customs can then say they are only relevant to some staff”.
The Court further found that it is not up to employees to have to request that the employer act in accordance with its own values - an employer should be expected to do this regardless.
In relation to public sector employers, the Chief Judge further found that the obligations imposed under the Public Service Act mean that it is not sufficient simply to “tweak job advertisements and existing recruitment policies to encourage Māori to apply, and then to create a Māori-friendly working environment”. Rather, the Chief Judge found that it was seriously arguable that these obligations required public service organisations to “understand and act consistently with tikanga/tikanga values relevant to their role as a good (public service) employer”.
Ultimately the Court rejected Custom’s claim that the reference to tikanga/tikanga values in its Organisational Principles were intended to reflect broad aspirational principles and that they were on a “journey of understanding”. She found that the employer was obliged, as a minimum, to consider how these values should inform its conduct in dealing with employment relationship issues and act accordingly.
It is clear from this decision that employers who do incorporate tikanga/tikanga values into their employment framework will be held to these values and that paying lip service will not be enough.
originally published in thepost.co.nz 12 July 2023