Waitangi Day marks the signing of New Zealand's Treaty of Waitangi or Te Tiriti o Waitangi in Māori between the British Crown and Māori chiefs. Now that Waitangi Day has passed for another year, and the celebrations, demonstrations and political grandstanding are over, it may come as a surprise to many New Zealander’s that tikanga Māori (the customary rules which govern Māori life) has quietly gained recognition in employment law in New Zealand.
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.
There have now been a number of decisions of the Employment Court affirming that tikanga may be an important consideration when an employer is considering dismissing an employee. 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. In reaching her decision that Ms Robinson was unjustifiably dismissed the Chief Judge said that there was nothing to suggest that these concerns were seriously considered or factored into the way in which the company proceeded. The Judge said that the process was hurried and conducted in a distanced, impersonal way that undermined, rather than maintained, the employee’s mana.
The Judge also 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 employee gave evidence that she felt as though her treatment by 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 Chief Judge also concluded that the employee was unjustifiably dismissed. In addition to finding the dismissal unjustified, during the hearing the Chief Judge heard submissions on whether tikanga should have relevance in her decision-making process. She found that because Customs had incorporated tikanga and tikanga values into its policies and employment relationships, they were relevant. She 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.”
The Chief Judge also concluded that Customs failed to meet what she referred to as heightened good employer obligations imposed on Customs, as a good public service employer under the Public Service Act “to honour a commitment it has incorporated into its employment relationship with all employees (Māori and non-Māori) to act consistently with applicable tikanga/tikanga values”. That Act requires government departments to operate a “good employer policy” which amongst many things requires the recognition of the aims and aspirations of Māori and the employment requirements of Māori.
The contentious Treaty Principles Bill is an ACT Party policy, to enshrine what it says the Treaty means into law. The Act Party says that the Treaty has been interpreted by the courts, the Waitangi Tribunal and successive governments in a way that has gone beyond its original intent. Many New Zealanders disagree. Thankfully, the Act Party’s coalition partners have already doomed the Treaty Principles Bill. Both the New Zealand First and National Party leaders confirmed that recently during speeches at Rātana. The Treaty Principles Bill is "dead in the water", New Zealand First leader Winston Peters said. The bill is "never going to go past the first reading". Likewise, the Prime Minister again confirmed that "National won't support the bill - it will be voted down and it won't become law."
Unlike the Treaty Principles Bill, the intentions of the Employment Relations Act are well meaning - to build productive employment relationships; to acknowledge and address inherent inequality of power in employment relationships; to protect the integrity of individual choice; and to promote the effective enforcement of employment standards. Read more...