An employer's guide - When and how should Tikanga be applied in the workplace?

There has been an upward trend in the use of the Māori language and culture in New Zealand society over recent years. This includes many workplaces, both big and small, with employers seeing benefit in incorporating Te Ao Māori into their values, and practices and marketing.  

But what are the implications of this when it comes to employment processes, and when disputes arise? 

While there is no one answer to this question, the following guidance provides key factors and steps employers should consider prior to commencing, and throughout, any processes. 

What is tikanga? 

Broadly speaking, tikanga is a set of values or principles that underpin practices and norms from which an individual, or collective, can determine the correct path of action in a particular set of circumstances. 

What makes tikanga so difficult for employers (and lawyers and courts) to apply, is that, unlike traditional pakeha laws, there is no prescriptive text setting out specific rules or regulations.  

Despite there being no express rules or regulations to apply, the courts, including the Employment Court and Supreme Court, have made it clear that tikanga and tikanga values are relevant to the wider New Zealand legal landscape. The Employment Court has specifically commented that tikanga and tikanga values are consistent with, and sit comfortably within employment law, being an area of law that is relationship-centric and based on principles of good faith.  

In this context, the application of tikanga is not too dissimilar to the application of ‘good faith’. The manner in which both these concepts can be applied will vary based on the individual circumstances of a situation. The biggest difference in how they are applied is that good faith is an express legislative principle with a large body of common law assisting in its interpretation and application. While the application of tikanga is starting to be addressed in courts on a more frequent basis, we do not yet have the benefit of a large body of cases that can assist and instruct on how to apply tikanga in different scenarios.  

When should an employer consider the application of tikanga practices and values 

There are a number of processes an employer and employee may be involved in throughout the duration of their employment relationship. These include: 

• Performance management 
• Investigations 
• Disciplinary processes 
• Restructures 
• Termination 
• Dispute resolution 

Every one of these situations involves a process and/or decision that can have a lasting effect on the relationship between the employer and the employee. It’s commonly accepted that, regardless of what process is being undertaken, both parties need to communicate openly and in good faith, i.e. providing relevant information in a timely manner and not misleading or acting in a deceptive manner.  

While many employers will have a standard template for how these processes are conducted, every situation and set of facts will dictate variances in those processes, for example, timeframes will often vary based on a number of factors. 

The application of Tikanga is one such factor that can result in a varied process. Tikanga won’t always be relevant for consideration, but it’s important that employers know and understand when it might. The recent body of case law highlights three key scenarios in which tikanga should be considered: 

When tikanga has been expressly incorporated into the employment relationship. 

• This includes via inclusion in employment agreements and employment policies, and can extend to the broad introduction/inclusion of Te Ao Māori concepts into the workplace. 

When the nature of the organisation or the work undertaken by the organisation implies the incorporation and application of Māori practices. 

• Examples of these types of organisations could include Government organisations, organisations that interact directly and specifically with Māori communities, or Iwi owned and operated organisations. 

When an employee, or other participant in the process, requests that their culture is taken into account. 

• This could be relevant to individuals from any culture. The consideration of what a fair and reasonable employer could do in this scenario would be, at the very least, considering what this means on a practical level. 

It is important that employers understand whether any of the scenarios listed above are relevant to their particular set of circumstances. If the answer to that question is, ‘yes’, the employer will be obliged to consider how tikanga might be applied to the process or decision they’re about to undertake.   

When considering the application of tikanga in an employment setting, what is an employer obliged to do? 

The difficulty in answering this question relates to the fact that tikanga requirements are not explicitly specified. To truly understand tikanga and its application, experts would need to be consulted to advise on the appropriate requirements in any given set of circumstances. Most employers won’t have the ability to engage such experts, so it is important they understand what they can do themselves to ensure tikanga is being appropriately considered. 

There are many factors that could change what the application of tikanga looks like in the workplace. For example, the application of tikanga could look different depending on: 

• The organisation and its commitment to the application of Māori values and tikanga. 
• The location of the organisation and its employee(s). 
• The individuals involved and their personal views on tikanga (as well as the wider views of applicable hapu and iwi). 
• What process is being undertaken. 
• The urgency of the process (including health and safety implications). 
• Privacy implications. 
• Financial implications. 

For employers that fall into the first two categories listed above, there may be more of an established understanding of how tikanga is incorporated into their processes (although this won’t always be the case). Where this isn’t the case, or where an employee has specifically asked for it to be considered, employers will, at the bare minimum, need to enquire with the relevant parties as to their views on how tikanga could be incorporated into the process. Ideally, employers would work with the parties involved to co-develop a process that takes into account everyone’s needs. 

Examples of what this might look like could include, but are not limited to: 

• Holding meetings face-to-face. 
• Ensuring all the right people have an opportunity to be present at meetings. This could include members of an individual’s whānau or iwi, with those people being able to actively participate in the meeting. 
• Having meetings at a neutral location. 
• Acknowledging specific roles, for example, an employer acknowledging that their role incorporates the concept of Kaitiaki, being a carer or guardian, which can continue beyond the end of an employment relationship through the provision of post-employment support. 
• Observing appropriate protocols or etiquette. This could include the incorporation of mihimihi (introductions), karakia (blessings or prayers), and whakawhanaungatanga (establishing connections and relationships).  

As observed by the Courts, the inclusion of these concepts throughout an employment process does not mean that the process itself needs to be drastically different, rather the processes maintain a level of flexibility and recognition of what is important to those involved.  

If an employer has any reason why a specific request won’t be allowed, they will need to be clear as to why, and be able to justify this decision as one that a fair and reasonable employer could make in the circumstances.  

The interpretation and application of tikanga in the employment context will continue to grow over the coming years. As a larger body of case law works its way through the courts, we can expect to benefit from more specific examples of the requirements being placed on employers when questions of tikanga arise.  

For further advice on managing employment processes effectively, DTI Lawyers specialist employment lawyers are available by phone on 07 282 0174 or email [email protected].