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....