Court decisions emphasise role of Tikanga in employment relationship
Tikanga Māori is inherently difficult to precisely define and interpret; yet it is increasingly relevant to the way in which the Employment Relations Authority and Employment Court are approaching employment relationships.
The relational framework of “equity and good conscience” that underpins New Zealand employment law is, in many ways, a natural fit with Tikanga concepts. Recent case law suggests an increasing focus on Tikanga principles across a broad range of employment issues.
In this article, we explore how Tikanga is currently applied in the employment law context, what the future might hold, and how employers can apply Tikanga values appropriately.
Tikanga (derived from what is Tika or “right, correct, proper”) is a source of customary law. It is the framework for how people should behave and interact in te ao Māori - the Māori world - and encompasses a broad range of values, traditions, practices, customs, and ethics.
Notably, it applies universally to Māori and non-Māori alike. The Supreme Court in Ellis v. R, [2022] NZSC 114, described tikanga as being part of the fabric of New Zealand’s law and public institutions. It is a direct source of legal rights that can be, and has been, enforced by the courts. In short, it forms an important contextual framework to how our laws ought to be interpreted and applied.
Tikanga and employment law
There is a number of parallels between tikanga and established employment law principles, particularly in relation to how the duty of good faith is intended to operate in the employment relationship, and in the application of the values of equity, good conscience and fair treatment.
This overlap was recognised by the Chief Judge of the Employment Court in GF v. the Customs Comptroller, [2023] NZEmpC 101, who noted that tikanga sits comfortably in employment law. The employment law framework emphasises dispute resolution, mediation before litigation, collective bargaining, worker protections, and relationship-centred values, all of which reflect key Māori concepts. While by no means exhaustive, some concepts of Tikanga that are of particular relevance in the employment relationship include:
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Manaakitanga – hospitality, kindness, and respect for others.
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Whanaungatanga – strong relationships, collectivism, and community cohesion.
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Kotahitanga – unity, working together for a common purpose, solidarity.
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Kanohi ki te kanohi – face-to-face, or in-person discussions.
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Hera, loss of mana – can be likened with humiliation, loss of dignity, and injury to feelings under s 123(1)(c)(i).
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Mōhiotanga – sharing of information, such as the principle of employees having a right to access their own private information.
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Wairua – health and well-being.
Initially, references to Tikanga in the employment relationship were largely aimed at providing for particular cultural needs for Māori employees. In the 2002 case of Burberry v. Good Health Wanganui, [2003] AUIndigLawRpr 10, the court found the employer should have made cultural accommodations for a Māori employee working in a Māori setting. The onus should not have been on Mrs Burberry to have asserted her mana Māori or to plead for her cultural identity to be recognised, and the employer should have taken proactive steps to integrate bicultural practices.
Since the Ellis case, which applied Tikanga principles universally (notably, Peter Ellis was Pākehā), and recognising the greater integration of Tikanga principles and references in workplaces over the past 20 years, the Employment Court is increasingly discussing Tikanga as an underpinning of employment relationships generally. This is particularly the case where the employer seeks to introduce Māori / Tikanga values into its corporate identity or culture.
In the Customs case, the Customs Service had included within its institutional framework a commitment to act in accordance with tikanga. The court cited Ellis, in that tikanga has been and will continue to be recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant. At a minimum, “Customs was obliged to acknowledge and consider tikanga/tikanga values that it itself had introduced into the employment relationship. This required Customs to consider how applicable tikanga/tikanga values should inform its conduct in dealing with employment relationship issues and to then act accordingly.” This illustrates that committing to tikanga is not merely symbolic or tokenistic; it carries significant implications for employers and requires meaningful engagement.
Recently, in Wiles v. University of Auckland, [2024] NZEmpC 123, Associate Professor Siouxsie Wiles referred to the Customs case and made extensive submissions on the role of tikanga in employment law. The court accepted that tikanga obligations provided context to the rest of the University’s obligations, and considered the relevant principles of manaakitanga, whanaungatanga, kotahitanga, and kaitiakitanga, as part of its decision process. The court held the University was bound to act consistently with tikanga insofar as it applied to the employment relationship. The University was not found to be in breach of its duty of good faith in this regard, however.
Applying Tikanga in the employment relationship
The current direction of travel suggests that Tikanga will become more and more important in the way in which the Employment Relations Authority and Employment Court consider the rights and obligations of employers and employees.
Whether expressly incorporating Tikanga principles and values into organisational policies or practices, or accommodating the cultural needs of staff, employers should be alive to the need to engage with tikanga effectively. This involves improving awareness and cultural competency, and taking steps to ensure those principles are not tokenistic but fully embedded and carried through in practices.
For organisations with a focus on Te Ao Māori, or with Māori staff, the onus will be greater. The nature of the employer’s organisation and business may be sufficient to incorporate an obligation (such as in Burberry), or there may be a situation like in Customs where the employer has chosen to incorporate tikanga into the employment relationship.
However, appropriate and effective implementation of Tikanga principles and practices can have an immensely positive impact on all organisations – as an additional means of articulating and practicing effective employment relationships. Potential examples of this could include holding face to face meetings or hui for important communications/announcements (rather than by email or video conference); being alive to cultural needs such as allowing whanau to attend and/or speak in support of an employee, starting meetings with a mihimihi or karakia; or otherwise utilising Tikanga principles to drive values such as manaakitanga, Kotahitanga, or whanaungatanga in the way staff interact with each other and others (such as customers).
Mark Lawlor is a Partner at Duncan Cotterill in Auckland, specialising in employment law, workplace disputes, and health and safety. Joseph Williams is a Senior Associate at Duncan Cotterill in Auckland, specialising in employment and health and safety law.
