New Zealand awaits the election outcome following the counting of special votes and the impact this may have on the formation of our new coalition government.
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 (the customary rules which govern Māori life), 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.
The Act Party, as part of its election policy platform, has said that it would hold a binding referendum on the introduction of a Treaty Principles Act. It says that this Act would affirm that the New Zealand Government has the right to govern New Zealand, and that all New Zealanders are equal under the law, with the same rights and duties. The Act Party says the referendum is a “bottom-line” for it.
The Employment Court has recently affirmed that tikanga is important when an employer is considering dismissing an employee.
Carey Robinson was employed by Pact Group as a community support worker for 15 years. Her role involved supporting clients to live as independently as possible within the community. The job was varied, as were the needs of each of the clients Ms Robinson worked with. Ms Robinson was well regarded and received positive performance reviews over the years. No issues had been raised in any aspect of her work.
In 2021 Pact Group embarked on a restructuring exercise which impacted on Ms Robinson. Ms Robinson was required to complete additional training in respect of the administration of medication. This required her to be in the office early and she had difficulty with this as she provided daily care for her elderly mother before she started work. She also reported experiencing a high workload as she had been trying to catch up with all of her clients since the most recent lockdown and had been attempting to complete the medication requirements outside her rostered hours. Ms Robinson reported that “this has been a huge juggle for myself and my clients.”
Unbeknown to Ms Robinson, this was reported up the line to Mr Cardy, the company’s General Manager based in Dunedin. Ms Robinson’s comment that “this has been a huge juggle” prompted him to look into Ms Robinson’s work, including the records from Ms Robinson’s work phone and the GPS records on her work vehicle.
Mr Cardy wrote to Ms Robinson explaining that he had undertaken a review of her current workload and that as a result he had concerns as to how she was spending her work hours. Mr Cardy advised Ms Robinson that if his suspicions were correct, it would lead to the conclusion that she was falsifying time records and making fraudulent claims for payment. He advised Ms Robinson that dismissal was a possible outcome. He required Ms Robinson to attend a meeting to be conducted virtually via Zoom.
Unsurprisingly Ms Robinson was shocked to receive Mr Cardy’s correspondence. She asked to meet with Mr Cardy in person to discuss matters. The request for an in-person meeting was refused.
At the Zoom meeting Ms Robinson reiterated that she had wanted to meet in person, and said that the way in which Mr Cardy had dealt with matters had left her feeling “stripped of her mana, culturally disadvantaged, and that this mishandling of her mana had resulted in feelings of shame.” She also touched on her personal circumstances, including that she was the carer of her mother and that she was herself suffering from a health condition.
Ms Robinson said that unfair made assumptions were being made that she was not working when she was not with a client or driving during the work day. She pointed out that there were numerous other tasks that she was required to attend to, including engaging with stakeholders and attending to arrangements to provide support to her clients in order to meet their complex needs.
The company dismissed Ms Robinson for serious misconduct, with immediate effect.
In reaching its decision that Ms Robinson was unjustifiably dismissed, the Employment Court also concluded that Ms Robinson’s personal circumstances and her cultural needs were relevant.
Ms Robinson alerted the company during the Zoom meeting that she had caregiver responsibilities to her mother (who suffered from dementia and required daily care). Ms Robinson also referred to being impacted by health issues of a personal nature which she felt embarrassed about discussing in the context of a disciplinary meeting conducted via Zoom.
Mr Cardy did not request further information as to the personal challenges Ms Robinson was evidently confronting, either during or following the meeting. Judge Inglis said that it was his obligation as a fair and reasonable employer to take steps to ensure he had the relevant information before reaching any concluded view.
Also relevant was the fact that Ms Robinson is Māori and had raised during the first Zoom meeting that her mana was being impacted by the process. The 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, Ms Robinson’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. Ms Robinson 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 within the company.
While there may have been legitimate reasons to discuss the perceived concerns with Ms Robinson, Ms Robinson was a long serving employee and was well regarded. It must have been shocking for her to receive the request to the disciplinary meeting from Mr Cardy and for the company to proceed as it did. Reciprocity is a good starting point; after fifteen years loyal service the company should have engaged in a process that maintained Ms Robinson’s mana.
It seems unlikely that such a concept under tikanga will have any traction under the Act Party’s platform to establish a Treaty Principles Act. It will be interesting to see to what extent this is explored in the National/Act coalition agreement coming up and whether a referendum will be agreed to. Read more....