Tikanga and Employment Law: what’s new?

Recent cases have dealt with the role of tikanga in employment disputes, highlighting obligations which employers have to their employees.

What is tikanga?

Put simply, tikanga is a set of values, principles, and practices which people use to determine the right way of doing things in te ao Māori. Tikanga customs develop over time, and differ between hapū, iwi and communities.

What does this mean for employers?

Company policies on tikanga are relevant

The Employment Court has found that tikanga can be relevant in redundancy processes and employment disputes. If a company has policies which incorporate tikanga values, the Court has indicated that it will consider these when making its decisions.

Specifically, the extent to which tikanga values have been met are relevant in two assessments. The first is whether an employer has acted fairly and reasonably in a dismissal process. The second is whether employers have acted in good faith.

Employers should know whose tikanga they are incorporating, for example their own, or that of mana whenua (those with authority over the land – e.g. the hapū or iwi).

Tikanga does not replace obligations under Employment Relations Act

Using tikanga values should complement employers’ legal obligations. This is because the application of values such as good faith which are consistent with tikanga will benefit all parties.

The Court has also stated that the application of tikanga is not limited to Māori organisations or employees who whakapapa Māori.

Incorporating tikanga

Employers should consider what tikanga means for their organisation. This could include, for example:

• Conducting meetings kanohi ki te kanohi – face to face.
• Considering whether your approaches are mana-enhancing. For instance, a good-faith approach to a redundancy process should be consistent with tikanga.
• When consulting on a restructure or undertaking a dismissal process, recognising the wider impact these changes may have on your employees’ whānau.

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