Tikanga and employment relationships
The recent Employment Court case GF v Comptroller of the New Zealand Customs Service[1] (GF v Customs) has provided key insight into the significance of tikanga/tikanga values in employment relationships.
While the core issue of the case concerned an employee alleging they had been unjustifiably dismissed after being unwilling to receive the COVID-19 vaccination, the Court’s comments around tikanga/tikanga values and its interaction with employment law is of particular significance.
Tikanga in the law
The Employment Court’s judgment follows on from the 2022 case of Ellis v R[2] (Ellis) in which the Supreme Court unanimously observed tikanga has been and will continue to be recognised in the development of the common law in Aotearoa in cases where it is relevant. Ellis established tikanga/tikanga values may be the determining factor in the outcome of a case. The Supreme Court also observed tikanga/tikanga values may be a relevant consideration in the exercise of judicial discretions. Tikanga also forms part of New Zealand law through its incorporation in legislation and regulations (for example in the Resource Management Act 1991).
Tikanga and employment relationships
More employers have been incorporating tikanga/tikanga-based principles into their policies, procedures and values. However, up until now it has been unclear what, if any, employment law obligations sit with employers after making these inclusions.
In GF v Customs the Employment Court found tikanga/tikanga values were relevant to the case because the employer, the New Zealand Customs Service (Customs), had incorporated tikanga/tikanga values into its employment relationship. Customs incorporated tikanga in the organisation’s values, statement of intent, and employee induction materials.
Chief Judge Inglis noted the alignment between tikanga/tikanga values and positive employment relationships:[3]
‘Indeed 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 focussed (where possible) on maintaining and restoring productive employment relationships.’
The Court said the extent to which employers have met their commitments to tikanga/tikanga values was found to be relevant in assessing whether the employer has acted as a fair and reasonable employer in all the circumstances.[4] The Court also stated the extent to which tikanga/tikanga values commitments have been met was also relevant in assessing whether the employer has complied with its good faith obligations under the Employment Relations Act 2000 (the Act).[5]
Customs is a public sector employer. Therefore, as well as being obligated to act as a fair and reasonable employer under the Act, Customs is also required to uphold the ‘heightened’ obligation to act as a ‘good employer’ under the Public Service Act 2020.[6]
Ultimately the Court held Customs failed to act as a fair and reasonable employer and did not meet its obligations under the Public Service Act 2020 to act as a good employer as it failed to comply with tikanga/tikanga values it had incorporated into its employment relationship, breaching its obligations to the employee.
The Employment Court’s recommendations
The Court in this case had the power under s 123(1)(ca) of the Act to make recommendations to Customs as to the actions it should take to prevent similar employment relationship problems arising.
The Court recommended Customs engage pūkenga (tikanga experts) to ensure it has the capacity and capability to meet its obligations and commitments to tikanga/tikanga values. The Court also recommended Customs take steps to receive appropriate advice and training on the nature and scope of those obligations.
What does this mean for employers?
This case is significant for the many employers that have incorporated tikanga/tikanga values into their policies and procedures. The case indicates employers cannot blindly include such values into their policies and procedures without first understanding what those values mean and how the inclusion could create obligations under employment law. Employers might wish to consider receiving appropriate advice and training on tikanga/tikanga values to better understand their obligations.
The Court made no comment or consideration on tikanga as a freestanding body of law and the way in which it sits within the common law obligations that apply to employment relationships in Aotearoa. This is an emerging area of employment law and we will watch with interest to see how courts in the future will consider tikanga obligations in the employment relationship.
Paddy Miller, Associate and Imke Kitchin, Lawyer
[1] GF v Comptroller of the New Zealand Customs Service [2023] NZEmpC 101.
[2] Ellis v R [2022] NZSC 114.
[3] At [16].
[4] The Employment Relations Act 2000, s 103A.
[5] The Employment Relations Act 2000, s 4.
[6] Public Service Act 2020, s 73.
