How to incorporate tikanga in employment relationships

Published 7 November 2023 | 2 min read

Employment court case highlights tikanga's importance

Kia ora, let's delve into the world of employment relationships and how tikanga, the Māori customary law and values, can play a pivotal role in shaping them. We've got an intriguing story to share, featuring a recent Employment Court decision that highlights the importance of tikanga in the workplace.

Let's start with a scenario that caught our attention. In the case of GF v Comptroller of the New Zealand Customs Service, an unvaccinated employee was terminated from their position due to the COVID-19 Public Health Response (Vaccinations) Order 2021. However, what makes this case particularly interesting is the role that tikanga played in the employee's dismissal.

ERA decision

The Employment Relations Authority initially ruled against the employee's grievance, stating no personal grievance for unjustified dismissal had been established. However, the case was appealed, with one of the key arguments being that Customs had failed to adhere to tikanga principles. This led us to wonder about the relevance of tikanga in the employment jurisdiction.

The Employment Court's decision brought some intriguing insights. It found that Customs had not acted as a fair and reasonable employer. Despite having voluntarily incorporated tikanga principles into its employment documentation, the organisation failed to follow the tikanga it had embraced. The breach of obligations of good faith was evident in several areas:

• Failure to follow a fair and reasonable process.
• Inadequate engagement.
• A predetermined and flawed decision to terminate.

It's not every day you see a court ruling as a "positive failure," but in this context, it's indeed a step forward. The Court's decision affirmed the importance of tikanga in employment relationships. While the Employment Relations Act 2000 doesn't explicitly mention tikanga, it doesn't prevent its incorporation either. If an employer, like Customs, introduces tikanga into the relationship, they're obligated to follow through on it.

Act consistently with tikanga values

The Court's ruling highlighted several areas where Customs failed to meet its tikanga obligations. Among them were the failure to approach the issue on an individualised basis, inadequate engagement that didn't enhance mana, and rushing the process. The Court emphasised that when an employer incorporates tikanga into its framework, it must adhere to it actively. This is particularly relevant in the public service sector, where the heightened good employer standard applies.

Observations concerning tikanga and the "good employer" standard were also made. Section 73 of the Public Service Act 2020 requires a good employer to recognise and act consistently with applicable tikanga/tikanga values. This extends the obligations of public service employers to understand and align with tikanga in their role as good employers.

This decision has broad implications. While currently limited to cases where tikanga is expressly incorporated into the employment relationship, it's an emerging and vital area of law. As an employer or employee, staying informed and seeking guidance in this evolving landscape is crucial.

In this case, the dismissal was unjustified due to Customs' failure to act as a fair and reasonable employer by largely failing to uphold tikanga throughout all aspects of the employment relationship.

How you can embrace tikanga in your workplace

When incorporating tikanga values into employment relationships, a one-size-fits-all approach won't cut it. Instead, organisations need to embrace an individualised approach, living by the values they espouse.

Incorporating Te Ao Māori into HR practices is not just about compliance; it's about doing the right thing. By understanding and respecting the culture and identity of your employees, you can create a more positive and productive workplace. It's about embracing values that uplift the mana of all employees.

In Aotearoa, New Zealand, tikanga and tikanga values are more than just legal concepts. They're a part of our cultural fabric, and as responsible employers, we must ensure that they are woven into the tapestry of our employment relationships. Let's all take inspiration from this case and strive to do the right thing by embracing tikanga in our workplaces. After all, it's the Kiwi way, and it's good for everyone.