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Last Updated: 9 March 2024
Joshua Williams Memorial Prize Essay 2021
365
Joshua Williams Memorial Prize Essay
How could the Application of Section 4 Employment Relations Act 2000 be Modified to give Effect to the Promise of Partnership under Te Tiriti o Waitangi?
Julia Fraser*
Māori culture is at the core of Aotearoa’s identity, it has influenced our cuisine, customs and way of life. Maori are the tangata whenua of Aotearoa. However, while we jump at the opportunity to showcase our indigenous culture on a world stage, there remains a significant racial imbalance within our legal system, which we are less willing to advertise. This imbalance is evident in Aotearoa’s employment law which reflects a monocultural system, based largely on Pākehā values. As a result it fails to fulfil the promise of partnership made in the Te Tiriti o Waitangi.1
This paper will focus on the nature of the good faith principle under section 4 of the Employment Relations Act 2000 (“Act”), its current application within the context of the disciplinary process, and how application of the duty can be modified to promote active consideration of tikanga Māori. Integration of tikanga within Aotearoa’s employment law will help to give recognition to the promise of partnership once made.
Tikanga Māori
Following Te Tiriti o Waitangi, Aotearoa became a British colony. The Treaty embodied a partnership in which the Crown and Māori would all have a place in shaping the legal system. Nevertheless, today Aotearoa follows a legal system modelled on the English common law system, which lacks any reference to tikanga Māori (Māori customs) and little effort has been taken by the Crown to modify the law to reflect the cultural values of Māori. To be able to truly fulfil the promise of partnership, there is a need to ensure Aotearoa is governed by socially inclusive laws and legal institutions. However, socially inclusive laws cannot be achieved without true comprehension of tikanga.Tikanga does not have a single definition and one’s understanding differs depending on their iwi, hapu and whānau. In a paper for the Law Commission, Joseph Williams identified five fundamental values of tikanga, these include:2
* Solicitor at Russell McVeagh.
The lack of tikanga and contemplation of Treaty principles is evident within Aotearoa’s employment law, despite tikanga reflecting critical components found within the Act.3 For example, the Act is largely focused on workplace relationships in the same way that Tikanga also places great value on inclusiveness and enhancing whanaungatanga. This resemblance has been recognised by Chief Judge Inglis who posed the question that given how strongly the objectives of the Act align with tikanga, why are Māori values given no recognition and omitted from the Act entirely?4In the early stages of the Employment Relations Bill multiple public submissions sought explicit commitment to Te Tiriti o Waitangi. In response, the Minister of Māori Affairs, Parekura Horomia, and the Minister in charge of Treaty Negotiations, Margaret Wilson, spoke of how Te Tiriti o Waitangi had been sufficiently considered by ensuring the Bill equally applied to Māori and all other citizens of Aotearoa.
We must ask ourselves: How can decisions under the Act be applied “equally” if considerations underpinning any decision, exclusively reflect Pākehā values?
In the absence of the Treaty and any promise of partnership, there still remains an obligation on Aotearoa’s government to outlaw discrimination against indigenous people, according to the United Nations Declaration on the Rights of Indigenous Peoples.5 This imposes a responsibility on Aotearoa to incorporate indigenous values in state-supported processes. Despite Aotearoa being a signatory to the Declaration as well as a party to Te Tiriti o Waitangi, there is an absence of consideration of indigenous values within the employment context.
Section 4 Employment Relations Act 2000
Good Faith Principle
The duty of good faith is principally defined in section 4 of the Act, where all parties to the employment relationship are required to deal with each other in good faith. Under section 4 (1A) good faith is to be interpreted “wider in scope than the implied mutual obligations of trust and confidence”.6 There is no exhaustive definition of what constitutes
an act of “good faith”, however Employment New Zealand provides a broad interpretation which includes the following:7
While I do not disagree that these practices are necessary to act in good faith, there is no express requirement to act with cultural competence.At the 2019 New Zealand Industrial Relations Conference, Chief Judge Inglis argued that cultural awareness can be read into the notion of “treating the other party with respect”, because a relationship based on respect is one which appreciates the cultural values of the other party. Chief Judge Inglis believed it is only a matter of time before tikanga principles are applied in employment cases as part of the good faith requirement, section 4 Employment Relations Act 2000. However, this development is slow.
To date, there has only been two cases, within the Employment Court, which gave consideration to Māori values held by employees. First, Good Health Wanganui v Burberry.8 This case followed an employee whose application for leave to attend a Kapa Haka festival was denied. Shaw J found the “onus should not have been on Mrs Burberry to assert her mana Māori or plead for her cultural identity to be recognised”.9 In doing so her Honour asserted a certain responsibility on the employer to acknowledge the cultural values of their employees and follow an appropriate procedure.10 This is one of the first cases in which Te Ao Māori has been a predominant topic of debate within Employment Court matters. The second case, Taiapa v Te Runanga O Turanganui A Kiwa Trust, (T/A Turanga Ararau Private Training Establishment), echoed a similar expectation on the employer.11
Both cases demonstrate that cultural values, while they ought to be considered, are not being adequately recognised by employers. Therefore, an express requirement of acting with cultural competence is necessary under the good faith principle. Not only will cultural awareness strengthen the relationship between employee and employer, it will also bring Aotearoa one step closer to fulfil the promise of partnership under the Treaty.
10 At [58].
The Disciplinary Process
Through the disciplinary process employees find themselves most vulnerable and it can have the greatest effect on their mana and whanaungatanga. It is therefore at this stage of employment that active consideration and integration of tikanga is most important under s 4 of the Act.Employment New Zealand set out the process which ought to be followed in disciplinary situations, including keeping the employee informed, investigating the issue and conducting meetings with both parties.12 While the Employee Assistance Programme is available for employees during this time, there is a responsibility on the employer to conduct the investigations in a fair manner.
I will consider any modifications within the disciplinary process which will shed light on tikanga, and help to satisfy the good faith principle.
(a) Disciplinary investigations
(i) Kanohi ki te kanohi
Mana is a core value which represents prestige, honour and pride. Any disciplinary process which undermines a person’s mana can be very detrimental to the identity of that employee within the workplace, their wider community and iwi. It is therefore important that reciprocity of kindness and respect is maintained throughout the disciplinary process.
A recent Employment Law Bulletin suggested that recognition of one’s mana in the process can be achieved by conducting disciplinary meetings kanohi ki te kanohi (face to face).13 Kanohi kit e kanohi allows for more open conversations and provides greater opportunity for the employee to share their thoughts and feel heard. In doing so, the employer is strengthening their whanaungatanga by demonstrating respect towards the preservation of their mana.
These meetings should focus on the mamae (hurt) the investigation may have caused to the employee and attempt to redress any risk of decreasing their mana as is appropriate. Recognition of the mamae is the first step in establishing a suitable disciplinary process, which takes into account tikanga, and subsequently will be a step closer to upholding the good faith principle through integration of culture.
Difficulties may arise where the whanaungatanga between employer and employee is beyond repair, and a party insists on keeping records of all conversations and interactions. This desire to keep written records is relatively common in disciplinary investigations because of the vulnerability and ongoing stress to employees. Although this will strain
the trust between the parties further and they may be less willing to have open conversations, and restoration of mana will prove more difficult.
(ii) Whānau-centred approach
When disciplinary investigations are carried out, it is kept between the employer and employee. While the employee is invited to bring a support person to meetings the presence of third party can be misconstrued as heightening the extremities of the situation. A suggested reform by Bennett and Kopu was for a whānau-centred approach to be introduced.14 This would involve an employer inviting the whānau to be involved in the process through, attending meetings and sharing concerns. The significance of doing so is that it demonstrates an acknowledgment by the employer towards whānau dignity, the value of accountability and removes the individual focus from the employee. All of which are significant to tikanga.15 To encourage the presence of whānau in the process will also aid employers to understand the wider impact which the process may have on an employee’s whānau.
This approach is likely to be well-received, based on a report by Te Puni Kōkiri which found a whānau-centred approach is highly effective in ensuring whānau wellbeing.16 This increased wellbeing will foster a stronger sense of whanaungatanga between employer and employee because whānau engagement shows a higher level of cultural appreciation which will help to build a strong professional partnership long term.
(b) Dismissal process
Myregel Carambas surveyed Employment Court decisions involving cultural matters and recognised a pattern of cultural misunderstanding where employees did not recognise that their actions are deemed ‘serious’ by their employer. This may lead to their dismissal.17 Certain cultural differences mean Māori can be more vulnerable to dismissal if they do not understand where their actions have been considered wrongful.
On the other hand, indigenous employees should not be forced to enter into a mono-cultural system based on Pākehā values.
When an employer seeks to dismiss an employee, a fair and reasonable process must be followed.18 Currently, determining what constitutes a ‘fair process’ does not involve any evaluation of engagement in tikanga practice. In Te Whanau a Takiwira Te Kohanga Reo v Tito, the issue in question
14 At 13.
One Whānau Ora research and monitoring results (September 2015).
was whether Māori values could be considered when assessing whether a dismissal was done in a fair manner.19 Finnigan J found that a process which followed Māori custom was “no more than a process, like any other process that an employer may choose when considering termination of employment”.20 This is a clear demonstration that tikanga practices are considered an “alternative” to the mainstream process. To deem tikanga as an “alternative” suggests it shall be considered when convenient to the employer, however acting with convenience is not fulfilling good faith per section 4, nor fair process.
Therefore, the option to bring a personal grievance claim against an employer when a dismissal process has not been carried out fairly should also be available when a culturally inappropriate process has been followed.
Initial Implementation
For the good faith principle to be truly appreciated, there is a need to have a deep understanding of tikanga values. Currently, there is no obligation for employers to undertake any government-run educational training about the significance of tikanga and how it can be incorporated into the workplace.In a 2021 report published in the Journal of Business and Psychology, it was held that targeting initial training towards the organisation’s senior members, will have a positive “trickle down” effect of educating those in lower-level positions.21 After the training, attendees will be better equipped to incorporate tikanga values into the workplace environment, which will encourage employers to engage in culturally inclusive processes under the Act.
Conclusion
The tikanga values this paper has highlighted are collectively underpinned by a common factor: whakamana tangata (putting people first). It is clear however that Aotearoa’s legal system does not “put people first” as its lack of diversity within the Pākehā-based legal system, is not a fair reflection of the values held by the indigenous people of Aotearoa. A failure within the employment law system to recognise and promote tikanga, is also a failure by Aotearoa to maintain their promise of “partnership” made in Te Tiriti o Waitangi.
21 Darryl B Rice, Nicole CJ Young and Sharon Sheridan “Improving employee emotional and behavioral investments through the trickle-down effect of organizational inclusiveness and the role of moral supervisors” (2021) 36 Journal of Business and Psychology 267.
Employment Relations Act 2000 does not expressly define the good faith principle. Rather it states that it is broader than any “implied mutual obligations of trust and confidence”. This allows room for interpretation, consideration and integration of tikanga within the employment context. This paper has identified ways in which the disciplinary process can consider tikanga within the realm of section 4. However, for any changes in the disciplinary processes to be achieved effectively the overarching requirement is for a change in leadership perspective and enhancement of workplace understanding. Without this, integration of tikanga will be flawed and possibly short-lived.
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URL: http://www.nzlii.org/nz/journals/OtaLawRw/2022/8.html