This week is Māori Language Week, which might be an apt time to consider the legal status of Te Ao Māori and Tikanga in the employment relationship. Tikanga is a Māori concept incorporating practices and values from mātauranga Māori, Māori knowledge. Tikanga is translated into the English language with a wide range of meanings: culture, custom, ethic, etiquette, fashion, formality, lore, manner, meaning, mechanism, method, protocol, style, customary law.
There is currently no legal precedent in the employment jurisdiction about whether parties in an employment relationship are bound by relevant Tikanga principles. It is my view that principles of Tikanga are relevant to the employment relationship, and we are expecting to see some precedent when the Employment Court releases its judgment of GF v Comptroller of the New Zealand Customs Service (interlocutory judgment here), which alleges that New Zealand Customs failed to act in accordance with its own whanonga pono (values) and failed to act in accordance with other tikanga principles relevant to the employment relationship between the parties.
It is well known that Māori law (including Tikanga) is part of the common law of New Zealand, and the Supreme Court has been previously interested in exploring the relevance of tikanga to the applicable common law, even where there was no Māori element within the facts of the case (see Law Society article here).
In terms of the potential applicability in the employment relationship, it may well be that Tikanga is an implied or express obligation in every employment relationship, sitting neatly within the wide obligations of good faith required by the Employment Relations Act 2000. The obligation of good faith is wider in scope than the implied mutual obligations of trust and confidence, and requires parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative.
Alternatively, it could be found that Tikanga is implied on only certain employment relationships; to this end it might be worthwhile to consider the recent Supreme Court matter of Deng v Zheng, which held that cultural issues may be relevant to New Zealand commercial arrangements, including the interpretation and application of law. In Deng v Zheng, this included two Chinese parties, however, these same principles could (surely) apply in the employment jurisdiction where an employment agreement has been formed with an express or implied recognition of Tikanga.
In my view, the principles of Tikanga align with the expectations of good faith in an employment relationship; incorporating Tikanga does not impose additional obligations, but further strengthens our understanding of good faith in an employment relationship. The degree to which Tikanga applies would depend on the circumstances, but overall, I think the recognition of Tikanga will assist in promoting employment relationships (generally).
It certainly is an interesting and exciting area of law.
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Legal AF Limited t/a Ashleigh the Advocate
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