The Employment Court held in a recent case GF v Comptroller of the New Zealand Customs Service [2023] that if tikanga Māori values are incorporated into an employment relationship, they must be upheld by an employer when dealing with employment issues. In the case it was determined that an employee, who refused to get vaccinated, was unjustifiably dismissed by their employer, New Zealand Customs Services (Customs).
Background
In October 2020, the New Zealand Government responded to the imminent threat of Covid-19 by hiring additional workers in various Government agencies, including Assistant Customs Officers Maritime Border (ACOMs) on fixed-term contracts.GF was one of these ACOMs. In February 2021, it was announced that ACOMs would need to be vaccinated to continue their roles. Five workers, including GF, chose not to get vaccinated and were subsequently invited to a meeting where they were given notice of termination of their employment.
Unjustified Dismissal
The central questions for the Court to determine were whether GF’s dismissal was unjustified, and whether they suffered an unjustifiable disadvantage from their employer’s actions.
Customs, as an employer, had a duty to act in good faith when dealing with employees. According to section 103A (2) of the Employment Relations Act 2000 (“the Act”), the Court must assess whether the employer’s actions aligned with what a fair and reasonable employer could have done in all of the given circumstances.
Additionally, tikanga Māori values were incorporated into the employment relationship through schemes such as policy, induction processes, and organisation values. The Court emphasised that because tikanga has been introduced into the employment relationship, the extent to which these values are met should be considered when assessing the broader relevant circumstances of the fairness and reasonableness of the employer’s actions under section 103A.
Decision
The Court found that Customs fell short at a base-line standard in two distinct ways:
1. Customs failed to meet the standard of a fair and reasonable employer under section 103A by having a predetermined view of the outcome, failing to adequately engage with GF, and neglecting to carry out an adequate and individualized health and safety assessment for GF’s role.
2. Customs failed to fulfill its statutory obligation of good faith to GF, as outlined in section 4 of the Act. This included a lack of sufficient activity and communication with the affected employees.
3. Customs also failed to act as a fair and reasonable employer under both s 4 and s 103A of the Act regarding heightened obligations flowing from tikanga values which the organisation had incorporated into its employment relations framework. The Court was not persuaded by the submission that Customs were “on a journey” of adhering to tikanga.
What does this mean for employers?
In 2012, the Supreme Court accepted in Takamore v Clarke that “Māori custom according to tikanga is therefore part of the values of the New Zealand common law.”
The case of Takamore v Clarke concerned the sensitive issue of where and how a loved one should be buried. The lack of consensus among immediate family and wider whanau and hapti meant that Takamore engaged several issues regarding the intersection of tikanga Maori, burial customs and the Common Law of New Zealand.
The very next year, Justice Sir Joe Williams noted that “Lex Aotearoa is very much alive. It is still fragile, but its survival is more certain now than in the past. It is demanding that we change to address its challenges. I hope we Aotearoans are up for it.”
New Zealand is in a period of transformative recognition of tikanga Māori in the law, now more prevalent in legislation and increasingly being recognised by the courts as an integral part of decision-making. This trend will only continue and eventually employers will need to consider tikanga-based interests. It is becoming important that if tikanga values are incorporated into an employment relationship, an employer is expected to meet these standards when dealing with employees.
Tikanga is going to longer be just a ‘nice to have’ in our employment agreements, Policies and workplaces. Straighttalk Law is with my clients every step of this journey. It is setting our next generation of employers and business owners up with the tools and the knowledge to be able to navigate the changing landscape of our employment system.
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