Employment Court considers tikanga to be a relevant consideration in unjustified dismissal claim

In a recent decision, the Employment Court found in favour of an employee who was dismissed from their employment during the COVID-19 response. The employer, which was a government department, had dismissed the employee due to their decision not to receive the COVID-19 vaccination.

The employee argued, among other things, that this decision was in breach of the employer’s obligations to the employee by failing to comply with the tikanga (values) which had been incorporated into the employment relationship.

While the employee was not Māori, the employment agreement specifically referenced two strategy documents, which outlined the employer’s tikanga, values and the “foundations” of its operation. These “foundations” were expressed as kotahitanga (unity), kaitiakitanga (guardianship) and manaakitanga (respect). 

The employer argued that these strategy documents were a guide, rather than tikanga obligations that the employer was required to meet. Further, the employer argued that the approach it took toward vaccination did align with the tikanga expressed.

The employer also argued that tikanga was not relevant to the particular employee given they were not Māori, and they had not specifically requested tikanga apply to the dismissal process.

The Court found that the employer did have obligations under tikanga given this was expressly incorporated into the employment agreement. The employer could not decide that the tikanga it had expressed in the employment agreement could be applied as it saw fit. It was irrelevant that the employee was not Māori, as the employer had made a commitment to incorporate tikanga into the employment relationships of all staff, not just Māori.

The Court indicated that an employer should be expected to follow its own undertakings, including about tikanga, with or without the employee’s request to do so.  

The Court also noted that it was seriously arguable that the Public Service Act, which specifically outlines that a public service employer has obligations to Māori, may impose broad obligations on public service organisations to understand and act consistently with tikanga relevant to their role as a good employer.

Importantly, the Court found that the employer failed to meet its tikanga obligations by:

• Dismissing the employee in a way that damaged the relationship, and diminished the employee’s mana (prestige).
• Failing to engage with the employee in a way that was mana enhancing and sufficiently individualised.
• Unnecessarily rushing the process and taking inadequate steps to ensure the right information was considered when making the dismissal decision.

Ultimately, the Court found the employer had failed to act as a fair and reasonable employer, and these failures had led to the employee being unjustifiably disadvantaged and dismissed. The employee was awarded $25,000 and 3 months lost wages.