If tikanga Māori values are incorporated into an employment relationship, they must be upheld by an employer when dealing with employment issues. That’s what the Employment Court held in a recent case GF v Comptroller of the New Zealand Customs Service [2023]. In the case it was determined that an employee, who refused to get vaccinated, was unjustifiably dismissed by their employer, New Zealand Customs Services (Customs).
Background
In October 2020, the New Zealand Government recognized the looming threat of Covid-19 and responded by hiring additional workers in various Government agencies, including Assistant Customs Officers Maritime Border (ACOMs) on fixed-term contracts – GF being one of these ACOMs. In February 2021, it was announced that ACOMs would need to be vaccinated to continue their roles. Five workers, including GF, chose not to get vaccinated and were subsequently invited to a meeting where they were given notice of termination of their employment.
Key Issue
The central questions for the Court to determine were whether GF’s dismissal was unjustified, and whether they suffered an unjustifiable disadvantage from their employer’s actions.
Unjustified Dismissal
Customs, as an employer, has a duty to act in good faith when dealing with employees. According to section 103A (2) of the Employment Relations Act 2000 (“the Act”), the Court must assess whether the employer’s actions (in this case, Customs) align with what a fair and reasonable employer could have done in all of the given circumstances.
Additionally, tikanga Māori values were incorporated into the employment relationship through schemes such as policy, induction processes, and organisation values. The Court emphasised that because tikanga has been introduced into the employment relationship, the extent to which these values are met should be considered when assessing the broader relevant circumstances of the fairness and reasonableness of the employer’s actions under section 103A.
Decision
The Court found that Customs fell short at a base-line standard in two distinct ways:
- Customs failed to meet the standard of a fair and reasonable employer under section 103A by having a predetermined view of the outcome, failing to adequately engage with GF, and neglecting to carry out an adequate and individualized health and safety assessment for GF’s role.
- Customs failed to fulfill its statutory obligation of good faith to GF, as outlined in section 4 of the Act. This included a lack of sufficient activity and communication with the affected employees.
Customs also failed to act as a fair and reasonable employer under both s 4 and s 103A of the Act regarding heightened obligations flowing from tikanga values which the organisation had incorporated into its employment relations framework. The Court was not persuaded by the submission that Customs were “on a journey” of adhering to tikanga.
Key Takeaway
Even in times of crisis like the Covid-19 pandemic, employers must uphold legal obligations. A crisis event does not justify ignoring obligations owed to the employee. Importantly, if tikanga values are incorporated into an employment relationship, an employer is expected to meet these standards when dealing with employees.
If you or you are unsure about the employment relationship obligations placed on your business, please get in touch with the Watermark Team directly. We are happy to assist you.
09 532 8211