For years, tikanga Māori has increasingly been recognised by our courts and legislation. The most recent significant case was the Supreme Court decision on whether Peter Ellis, under tikanga, would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa, rather than an individual's life.

It now seems that other cultural values may have to be considered in employment relationships. This month the Employment Court found that Pasifika values had been breached when it found that two employees, Mr John Faitala and Mrs Vohanoa Vea, were unjustifiably dismissed for redundancy reasons in June 2023.

The Pacific Island Business Development Trust is a long-standing not-for-profit organisation. Its objectives are to support Pasifika people to thrive in business and employment. It considers itself a trusted partner of Pasifika communities.

The position descriptions for Mr Faitala and Ms Vea both referred to Pasifika culture and values in its workplace. It wanted successful applicants to be fluent in one Pacific language and/or have cultural capability and understanding. For values, it focussed on Respect, Community and Reciprocity as cornerstones.

In evidence the Trust accepted that these values were pillars of the Pasifika community and that they are intrinsically embedded in Pasifika individuals. Mr Faitala and Ms Vea also confirmed that Pasifika values and principles are deeply ingrained into who they are, and that it shapes the way they conduct themselves and interact with others. Mrs Vea spoke of the importance of treating others with respect and dignity, and that respect is reciprocated. Mr Faitala also testified to the shared and universal Pasifika values of treating others how you would want to be treated and how this shaped how he conducted himself in all his interactions with others.

In early 2023 Ms Los’e was appointed as the Trust’s new chief executive to lead changes within the organisation. To meet identified challenges the Trust proposed that five roles would be disestablished, including Mr Faitala and Mrs Vea’s roles. It also proposed that nine new roles be established – with the potential for affected staff to be redeployed into the new roles should the proposal go ahead.

When the Trust decided to go ahead with the restructure Mr Faitala and Mrs Vea claimed that there were numerous instances of unjustified disadvantage in the consultation process by the Trust, including the failure to observe Pasifika values. The Trust acknowledged that it fell short in regard to observing cultural values but aspects of the process exhibited cultural understanding and empathy. The Court agreed with Mr Faitala and Mrs Vea that the Trust failed to comply with its obligation to adhere to Pasifika values when conducting its restructuring process and that the values had been expressly incorporated into the parties’ employment agreement.

Mr Faitala spoke to the importance of his culture to him. He was raised in Niue and his Niuean culture is central to his identity. He is part of the Pasifika community in Aotearoa, he lives his life consistent with Niuean values and refers to carrying with him core values of “integrity, honesty, kindness, fairness, courage and strong work ethics”. Mrs Vea gave evidence that being born and raised in Tonga that Tongan culture and Pasifika values are woven into her life. She gave evidence of how proud she was of her senior position at the Trust and the respect she received in the community because of this role.

Tikanga has already been increasingly recognised in the employment jurisdiction. For example, in Pact Group v Robinson the employee said that as a Māori her mana was being impacted by the disciplinary process the employer was undertaking. The Judge agreed and referred to Utu “the action undertaken in reciprocity”, and its link to mana. To show and reciprocate generosity enhances mana and strengthens relationships, whereas the failure to give or receive utu diminishes the mana of both parties to the relationship. The Court said the company failed to reciprocate the care, empathy and consideration she was expected to bring to her own role as a community support worker for the company.

In GF v Comptroller of the New Zealand Customs Service the Employment Court found that because Customs had incorporated tikanga and tikanga values into its policies and employment relationships, they were relevant. The Court said “the tikanga/tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship-centric, based on mutual obligations of good faith, and focused (where possible) on maintaining and restoring productive employment relationships.”

Substantial awards were made by the Court to Mr Faitala and Ms Vea. Mr Faitala was awarded six months lost remuneration and $30,000 compensation. Mrs Vea was awarded one years lost remuneration and $45,000 compensation.

Diversity is often promoted and supported in the modern workplace. It is often said to focus on recognising, respecting, and valuing differences in background, gender, age, disability, and ethnicity to foster innovation and belonging. By positively promoting it in the businesses policies and recruitment processes employers should be aware that celebrating that difference may be used as a sword by the employee down the track. Conversely, not having a diversity policy may limit the pool of potential best talent for the employer to choose from. Read more....

You may have missed International Women's Day last week, but the day is celebrated annually on March 8th to honour the social, economic, cultural, and political achievements of women while advocating for gender parity. It is a global day of action aimed at accelerating gender equality.

In the United Kingdom, the Secretary of State for Education and Minister for Women and Equalities, Bridget Phillipson said “This International Women’s Day, we are celebrating all that women bring to our proud nation, as well as committing to giving back to them. That’s why I am delighted to formally launch employer action plans, which are part of our commitment to ensure women can thrive at work and tackle the gender pay gap.” 

Under the UK Government’s new Employment Rights Act large organisations with 250 or more employees will be required to introduce menopause action plans by 2027. Smaller firms will not be bound by law but will be encouraged to adopt similar measures. The action plans, which will be available to the public, are designed to help organisations make “meaningful and long-lasting change”. The action plans must take at least one action to address their gender pay gap and at least one action that supports employees experiencing menopause.

Why does it matter? Many women’s issues have received the spotlight over the last few years. Pay inequity, discrimination, sexual harassment at work and period poverty have all received attention. While awareness of the effect that menopause may have for women at work has been raised, nothing has been done to support women or workplaces deal with the issue in New Zealand.

The UK charity Wellbeing of Women – which focuses on women’s reproductive and gynaecological health – says research indicates that women find dealing with perimenopause and menopause symptoms most difficult in the workplace. Women often choose not to disclose their struggles to colleagues or bosses due to embarrassment, stigma and fear they may be discriminated against, and it is thought that around a quarter of menopausal women consider leaving their jobs due to symptoms. The charity describes awareness about menopause in workplaces as “shockingly low”.

This lack of understanding is so acute that the Royal College of Psychiatrists in the UK has recently launched its first targeted “position statement” to raise awareness about menopause and mental health. Dr Lade Smith, the president of the College, says “Menopause can have a significant yet often overlooked impact on women’s mental health and wellbeing. Women account for 51% of the population and all will experience menopause at some point. This is a societal issue for everyone. Simply put, we must do better.”

The report details the mental health impact during perimenopause, and the numbers are striking. Anxiety and low mood are relatively common side-effects of hormonal changes during menopause, but for some women menopause significantly increases the chance of developing serious mental illness. Perimenopausal women are more than twice as likely to develop bipolar disorder and 30% more likely to develop clinical depression, while hormonal and physical changes associated with menopause may lead to the relapse or trigger the development of eating disorders. Suicide rates are also higher among women of menopausal age.

It should come as no surprise that symptoms caused by menopause can affect people in the workplace. Improving support mechanisms can be beneficial not only for women but for organisations too. The charity Wellbeing of Women asserts that when menopausal women are supported at work, it can help increase staff retention, reduce recruitment costs, improve productivity and wellbeing, and lead to a more diverse workforce.

While the UK government has taken a small step to support women coping with the symptoms of menopause at work by requiring large employees to develop action, surely there is more that can be done?

Where symptoms are particularly severe, should greater leave entitlements be given to women to manage this? Businesses already shoulder the financial burden for sick leave and for employees dealing with domestic violence. But this could impose a significant burden on businesses given the potential duration of the symptoms of menopause.

Should the government pay for the leave then. The idea is not far-fetched in principle. The government already pays employees parental leave for up to 26 weeks. Employees are entitled to take this leave and there are protections to help ensure people taking parental leave do not lose their employment. ACC also supplements the income of a person who has been incapacitated. New Zealand pays a pension to retirees.

As a society, we have seen that there is merit in protecting the incomes of people in these circumstances. Why are we prepared to pay taxes to support people in the above circumstances but not for women suffering from symptoms of menopause?

The issues are not insurmountable. ACC and paid parental leave would have involved similar considerations. We take this support for granted, but they were once radical concepts. New Zealand once lead the world in supporting the rights of women. Maybe New Zealand can be aspirational again. Read more....

Changes to the pay equity laws that were passed under urgency just before the budget announcement last year have been described as a "flagrant and significant abuse of power" by a group of former female MPs from across the political spectrum. The group formed an unofficial “Select Committee” to scrutinise the controversial law change and the way it was undertaken. This finding should come as no surprise - the law change was clearly rushed through Parliament under urgency and without scrutiny with the object of freeing up “billions of dollars” for the 2025 Budget.

In New Zealand, the select committee process is a key part of lawmaking where between five to twelve MPs from various parties scrutinise bills, examine policy, and hear public submissions, usually after a bill's first reading. Committees typically have six months to gather evidence, seek official advice, suggest amendments to the legislation, and report back to the House.

At the time the Prime Minister admitted that the changes to pay equity laws would save the government “billions of dollars” but he said that this was not the motivation for changing the legislation. "It's got nothing to do with the Budget, this is about making sure we have a piece of legislation that is incredibly workable, and not as complex as it has been" he said.

This is not supported by the background to the amendments. Back in 2017 the then National-led government passed a forerunner to the current legislation for the health sector only, the Care and Support Workers (Pay Equity) Settlement Act. In 2018, when it was in opposition, National supported the Labour government’s new Equal Pay Act, as well as the Equal Pay Amendment Act in 2020. Those changes were then said to be designed to extend a pay equity process to all occupations and create a clearer pathway for making pay equity claims.

Further, for the Prime Minister’s reasoning to have credibility, these significant changes to the law should have gone through the normal select committee process, without all the secrecy, and hopefully with a mandate from their party voters at the last election.

A major argument for the amendments was the use of comparisons used in pay-equity claims. Much misunderstanding was used to support this. Minister Brooke van Velden said "You have librarians who've been comparing themselves to transport engineers", We have admin and clerical staff at Health New Zealand comparing themselves to mechanical engineers", “Social workers had compared themselves to air traffic controllers”. These cherry picked sound bites are great to support the government’s contention that the comparators were distorting pay equity outcomes. These sound bites do not capture the deep analysis that goes into establishing suitable comparators to establish a pay equity claim.

Importantly, the Committee found no evidence to support the Government’s suggestion that ‘claims have been able to progress without strong evidence of undervaluation.’ The report said that prior to the amendments New Zealand had a world leading human rights vehicle, with a robust pay equity assessment methodology with incredible research integrity, ethical practice, detailed planning, and built as a cooperative inquiry - full of checks and balances. The Committee found that it could not be “gamed”.

So why does it matter? Clearly there has been an acceptance in the recent past from both major parties that pay equity issues are real and worth addressing. It is based on the worthwhile premise that there should be equal pay for equal work. To eliminate discrimination based on gender in the workplace, most New Zealanders would agree that a person working in the same role, with similar experience, and with similar performance should in principle be paid the same. Women in the role should not be discriminated against and paid a lower rate. 

The more insidious discrimination is harder to address. It has resulted in occupations that have been undervalued and underpaid based on whether they have been male or female dominated. Achieving pay equity is complex and needs to ensure that jobs that are different but of equal value are paid similarly, as a way to achieving gender equality. The recent legislation changes simply make it harder to establish pay inequity.

So what it has meant? Overnight the amendments cancelled 33 claims from female-dominated workforces which had been seeking to prove they were underpaid in comparison to similar male-dominated industries. The amendments also significantly raised the threshold for future claims. Female-dominated workforces which are generally considered to be underpaid in comparison to those dominated by men will continue to be undervalued. Those claims were in some of our most valued occupations - Plunket nurses, community midwives, hospice nurses and health care assistants, primary care nurses, nurses in residential care. In making the amendments the government also raised the bar for future claims to be successful.

The leader of the Act Party was more forthright in his thoughts on the amendments "I actually think that Brooke van Velden has saved the taxpayer billions, she's saved the Budget for the government and she has made pay equity workable for New Zealand women, men and everyone who wants a fair go in this country". Even if you strongly disagree with the Deputy Prime Minister, you may at least respect him for being upfront about his position.

But New Zealanders should be worried for two reasons. Firstly, some of our most valued occupations that have been historically dominated by women will continue to be underpaid for the work they do, compared to occupations that have historically been male dominated. Secondly, that previously hard won recognition by both major political parties of the importance of pay equity was stripped away by retrospective legislation, passed overnight under urgency, with no political mandate other than to save money. Read more.....

Sleep is increasingly being considered essential to physical and mental health, brain function, and overall well-being, acting as a vital period for body repair, memory consolidation, and toxin removal. However, day to day life may intervene and interfere with the recommended 7 to 9 hours of sleep each day. The causes are numerous; sleep deprived parents coping with a young child, a stressful period at work or at home, a sleep disorder, and nightshifts are a notorious disrupter of sleep. What if it impacts our work?

Recent Employment Relations Authority decisions highlight how difficult it can be for employers to make the right call.

The Waiheke Island Supported Home Trust provides government funded care services for up to ten residents who live at the Trust’s Waiheke Island premises. Ms Shorter had been employed by the Trust for 18 years, and was 70 years old, when she was dismissed for sleeping on the job. She worked 12-hour shifts from 8pm to 8am on Thursday, Friday and Saturday evenings. In 2025, after Ms Shorter’s new manager noticed her shopping during the day between her shifts (it being expected that she would need to sleep during the day), a video camera was installed. During her shifts for the week, the video footage showed Ms Shorter appearing to sleep on three consecutive nights, 3 hours and 5 minutes the first shift, 1 hour and 50 minutes on the second and 3 hours on the third.

A disciplinary process was undertaken and the Trust summarily dismissed Ms Shorter for serious misconduct for “deliberate avoidance of duties”. In finding that Ms Shorter was unjustifiably dismissed, the Authority Member concluded that night staff had an understanding from a meeting in 2021 with a previous manager that they were able to sleep during their breaks; “They had a legitimate expectation of it even though there is insufficient [sic] to establish a contractual entitlement to sleep.”

Ms Shorter was awarded $25,000 compensation, plus six months of lost wages. For reasons that are not entirely clear in the determination, these remedies were then reduced by 25% for Ms Shorter’s contribution to the situation.

Another case last year involved the Inland Revenue dismissing an employee who kept falling asleep at work. The employee, whose name cannot be published, wanted to be reinstated to her job. Apart from falling asleep, the employee was repeatedly late, wore inappropriate attire, spent time on personal calls, had trouble completing tasks and abused her colleagues.

Although Inland Revenue’s efforts were recognised in managing the employee, the Authority concluded that while “there were considerable difficulties in the employment relationship between [the employee] and Inland Revenue, I do not accept it was at the point that a fair and reasonable employer could justifiably dismiss [the employee].

The Authority Member concluded that Inland Revenue had acted prematurely and without justification by dismissing the woman, that it had not followed a fair process and that the failures were more than minor. The employee was awarded $30,000 compensation, but her application for reinstatement was declined.

It is not just in New Zealand that the issue has been recently addressed. Shannon Burns was a highly paid vice-president of a soft-ware company in the United Kingdom on a salary of £220,000 with £78,000 bonus per annum. She was sacked after spending the night sleeping in a sauna when she lost her room keys during a team-building event in Austria.

On the final night of the event Ms Burns was observed to be “slurring her words” after drinking alcohol. Ms Burns explained that when she went back to her room she found it locked and that she did not have her key. She said that there was no receptionist on duty and that her roommate had fallen asleep and was not answering her phone. She explained that she eventually gave up and went to sleep in the sauna.

In the Employment Tribunal she won her disability discrimination case after arguing the company she worked for had not done enough to help her perform well taking into account her ADHD. The Tribunal heard evidence that Ms Burns’ ADHD meant she was forgetful and often lost her phone and keys. After she started work, she had asked the company for a coach to help her with ADHD as she was feeling “deeply overwhelmed” at her workload, which she did not receive.

And of course there is the landmark case of Idea Services v Dixon where the Supreme Court confirmed that employees may be “working” even when they may be permitted to sleep on the job. It effects employees who may be required to stay on-site, are restricted from leaving, and are required to be available to respond to incidents. Depending on the restrictions on the arrangement, such employees may be entitled to the minimum wage for "sleepover" hours under the Minimum Wage Act.

Those of us who may enjoy a quick “power nap” from time to time should remain cautious of succumbing to that urge in the workplace. Conversely, our employers may need to dig a lot further into why an employee may have fallen asleep on the job before jumping to the conclusion that the employee should be sacked. Read more...