Tikanga in employment relationships

The recent Employment Court decision in GF v Comptroller of the New Zealand Customs Service provides helpful guidance regarding the application of tikanga in employment relationships.

As a result of the COVID-19 Public Health Response (Vaccinations) Order 2021, an unvaccinated employee was terminated from their position with New Zealand Customs Service (Customs). Although not a deciding factor alone, the failure to adhere to tikanga principles in the employment relationship was relevant to an assessment of whether this dismissal was justifiable.


The Employment Relations Authority initially held that no personal grievance for unjustified dismissal and disadvantage had been established. This decision was appealed, including on the basis that Customs had failed to act in accordance with tikanga principles.

The Employment Court (Court) found there was an unjustified dismissal and disadvantage. Customs did not act as a fair and reasonable employer. It had failed to follow the tikanga it had voluntarily incorporated into its procedures, and breached obligations of good faith, by:

  • a failure to follow fair and reasonable process;
  • inadequate engagement; and
  • a predetermined and flawed decision to terminate.

Tikanga incorporated into the employment relationship

Customs incorporated, among other values/principles, Te Tiriti o Waitangi principles of partnership, protection and participation into their employment documentation (including its Statement of Intent, Rautaki Mana Ārai – Customs’ Strategy, and employee induction materials), expressed as kotahitanga, kaitiakitanga and manaakitanga.

While the Employment Relations Act 2000 does not expressly refer to tikanga, it equally does not prevent its incorporation (in fact, the tikanga which Customs incorporated into its processes married well with the relationship-centric legislation). Tikanga was relevant here given Customs had expressly introduced tikanga into the employment relationship. At a minimum, Customs was therefore obliged to acknowledge and consider how applicable tikanga/tikanga values should inform its conduct in dealing with employment relationship issues.

The Court found that Customs did not meet their tikanga obligations, as they:

  • did not approach the issue on a sufficiently individualised basis;
  • failed to engage in a way that was mana enhancing;
  • unnecessarily rushed the process;
  • had inadequate steps to ensure that the right people were involved for discussion and exploration of common grounds in a no-fault situation;
  • declined to pause the process when requested to enable further discussion; and
  • provided inadequate time to consider the newly introduced Vaccinated Order.

The Court noted that:

  • Where an employer operates an employment relations framework which purports to incorporate tikanga/tikanga values, adherence with such is relevant to the test of justification and good faith obligations. Further, it is arguable that the operation of a framework specifically incorporating tikanga is relevant when assessing compliance with the heightened good employer public service standard.
  • The employee was not obliged to specifically request that Customs act in accordance with tikanga – it was on Customs to actively follow its own undertaking.
  • GF is not Māori; however, the application of tikanga values was not limited to those of Māori descent, given tikanga was incorporated generally into Customs’ relationship with all staff.
  • It is not for the Court to decide what tikanga is or what tikanga values are. While the Court may consider tikanga, it does so on the basis of evidence before it. Depending on the circumstances, the Court may need to seek a report from a tikanga expert/a pūkenga (as it did in this case).
  • There are considerations relating to tikanga as a freestanding law, and the way in which it sits with the common law obligations that apply to employment relationships in Aotearoa, which were not relevant to this particular case.

Observations in relation to tikanga and the “good employer” standard

Section 73 of the Public Service Act 2020 (PSA) requires a good employer to recognise:

  • the aims and aspirations of Māori;
  • the employment requirements of Māori; and
  • the need for greater involvement of Māori in the public service.

Although not required to assess this point given Customs’ express incorporation of tikanga, the Court considered it seriously arguable that the obligations imposed by this section are broad, possibly extending to require public service organisations to understand and act consistently with tikanga/tikanga values relevant to their role as a good public service employer.

At the very least, Customs was required to honour its express commitment to act consistently with applicable tikanga/tikanga values with all staff. “Te Ao Māori was, in other words, intended to be baked into public service operations, and not something which was only engaged with when interacting with Māori”.

Overall implications of this decision

Although currently limited to circumstances where an employer expressly incorporates tikanga into the employment relationship (and arguably, public service sector employment relationships generally, under section 73 of the PSA), this is an important and growing area of law, and an interesting space to watch for developments. If you are an employer or employee who would like guidance about the implications of this case, please reach out to our employment team at Lane Neave.


Special thanks to Law Clerk Olivia Kemp for her assistance in writing this article.

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