The loss of someone close to you can be a very difficult and traumatic event. Many people will be feeling the full effects of this in light of the recent tragic events that have taken place in New Zealand.

A bereavement can mean very different things from culture to culture. This includes the who (the proximity of the relationship with the deceased) and the how (what the cultural customs and traditions around death are). These differences can be hard to understand for people who are not accustomed to them and can also create issues within workplaces where people may have differing expectations.

Employers need to balance the multitude of cultural considerations with the practicalities of the workplace and their legal obligations. This is all made particularly difficult in a context where someone is grieving the loss of a loved one.

Currently the Holidays Act 2003 provides up to 3 days bereavement leave if an employee suffers the loss of a spouse, parent, child, brother, sister, grandparent, grandchild or spouse’s parent. For the death of any other person, it is for the employer to accept whether the employee has suffered a bereavement.

In this context employers must consider a number of factors, including the closeness of the association, whether the employee has to take significant responsibility for all or any of the arrangements for the ceremonies, or any cultural responsibilities of the employee in relation to the death. If the employer is satisfied the employee has suffered a bereavement, then the employee is entitled to one day of bereavement leave.

The requirement that employers determine whether someone has suffered a bereavement can pose a problem where they are asked to take into account any cultural responsibilities that they may not be familiar with.

This was highlighted in the case of Minhinnick v New Zealand Steel Ltd where NZ Steel was confronted with cultural considerations that they were not familiar with. In that case, Mr Minhinnick was employed by NZ Steel. Minhinnick’s parents had raised Mr K who came to live with their family even before Mr M was born. He was raised as a son, and a brother to Minhinnick, from that point on. For all intents and purposes, he was family. Mr K was in actuality Minhinnick’s cousin, being the son of his mother’s brother and therefore a blood-relative.

This is an example of whangai, or a Māori customary adoption. While not recognised as a legally enforceable form of adoption, it is still practiced by many Māori today. An important element to whangai is the blood connection between the individual and the ‘adoptive’ parents.

Mr K passed away in 2016 and Minhinnick applied for three days bereavement leave, in accordance with the Holidays Act, for the bereavement suffered at the loss of his brother. This was declined by NZ Steel, who believed that, in law, Mr K was not Minhinnick’s brother. Instead Minhinnick received one day bereavement leave and had to take the other two days as paid annual leave.

The case was taken to the Employment Relations Authority which had to determine whether a whangai relationship qualified as an immediate relative for the purposes of the relevant collective agreement.  Neither the Holidays Act nor the collective agreement defined “brother”.

The Authority considered that in light of the collective agreement, and the broad approach NZ Steel had taken to their leave entitlement policy, that “brother” should be interpreted in a way that recognised a whangai relationship. As such, Minhinnick was rightfully entitled to 3 days bereavement leave. The Authority also found that each application in relation to bereavement leave should be decided on its own merits.

This case highlights how bereavements can be different depending on custom and culture, which is not (and probably could not be) recognised by the legislation. To prevent situations like the Minhinnick case from arising, employers should create clear and concise leave policies and importantly, when considering bereavement leave, have due regard to cultural sensitivities.

The best course of action is always to have a discussion, if possible, with the affected individual to gauge the appropriate response. The Holidays Act provides a bare entitlement to bereavement leave.  Within certain cultures longer mourning periods are customary than what is offered in legislation, particularly if the deceased falls outside the category of an immediate relative.

Employers can always exercise their discretion to provide entitlements over and above the statutory minimum. In light of the shocking events in Christchurch, employers are likely to willingly do their bit to support the families who are affected by the tragedy.

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