The importance of restorative approaches in employment law

A recent Employment Court decision in Aotearoa New Zealand reiterates that money is a poor substitute for the loss of a job, highlights the value of restorative processes, and underscores the relevance of tikanga Māori in employment law.

In The VC of Lincoln University v Cheng [2024] NZEmpC 227, the Employment Court granted the interim reinstatement of a former employee, who had been made redundant at the University of Auckland against a backdrop of issues in the working relationship between the employee and their manager. In its decision, the Court stated:

“The benefits of a restorative approach to the breakdown of employment relationships has been gaining increased recognition, and has synergies with the underlying objectives of the legislation and the primacy of reinstatement as a remedy I also consider that it accords with tikanga norms and values. With appropriate support (which the University appears on the evidence to be in a position to provide) there is a relatively strong basis for arguing that permanent reinstatement is both practicable and reasonable.”

This is consistent with the approach adopted by the Employment Court in Humphrey v Canterbury DHB [2021] NZ EmpC 59 when granting the interim reinstatement of a former employee dismissed from the Canterbury District Health Board:

“Our understanding of the benefits of a restorative approach in supporting successful employment relationships is developing at a pace, and is consistent with the underlying objectives of the legislation [the Employment Relations Act 2000] and the mutual obligations of good faith. This has implications for the steps that a fair and reasonable employer, particularly a well-resourced one, can be expected to take in dealing with relationship difficulties.”

In both cases, the Court referred the matter to the Mediation Service and requested that they assist the parties in the reinstatement process by providing a mediator with expertise in restorative practices.

As both an employment lawyer and a restorative practice facilitator, I strongly encourage both employers and employees to consider a restorative approach when there are issues in the working relationship between colleagues. However, this is often easier said than done. While restorative processes can offer numerous benefits—such as improving communication, repairing relationships, and aligning with values like good faith and cultural norms—they also come with limitations. These processes are most effective for resolving interpersonal conflicts, but they may not be suitable for more serious matters, situations involving significant power imbalances, or cases where one party is unwilling to engage. Furthermore, they require time, resources, and a genuine commitment from all parties to participate meaningfully.