Tikanga and “good employer” obligations in employment law

A recent Employment Court case, GF v Comptroller of the New Zealand Customs Service  [2023] NZEmpC 101, issued on 30 June 2023, has some employment lawyers excited and public sector organisations worried. A few of the key take-home messages are as follows:

1.      Where an employer operates an employment relations framework which purports to incorporate tikanga/tikanga values, the extent to which such commitments have been met is relevant to assessing:

a.     the fairness and reasonableness of the employer’s actions (s 103A of the Employment Relations Act); and

b.     compliance with the good faith obligations (s 4 of the Employment Relations Act); and

c.     compliance with a public sector employer’s “good employer” obligation (s 73 of the Public Service Act).

2.      The “good employer” obligations contained in s 73 of the Public Service Act places heightened obligations on public service employers and is relevant to assessing:

a.     the fairness and reasonableness of an employer’s actions (s 103A); and

b.     compliance with the good faith obligations (s 4).

3.      The Employment Court noted that there were 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 did not need to be explored in the case because those obligations had been clearly incorporated by the employer. However, it is clear the Employment Court is open to the argument that tikanga/tikanga values exist in the employment relationship through common law. This would be consistent with the Supreme Court’s decision in Ellis v R [2022] NZSC 115, concerning Peter Ellis’ conviction, which unanimous held that tikanga has been and will continue to be recognised in the development of the common law of Aotearoa in cases where it is relevant. This was simply a confirmation by the Supreme Court, rather than a new development.

4.      The Archibald compensation bands have been adjusted to take into account inflation:

• Low level loss/damage Band 1 = 0 to $12,000

• Mid-level loss/damage Band 2 = $12,000 to $50,000; and

• High level loss/damage Band 3 =$50,000 and over.

 If you would like to discuss how this case might impact you or your workplace, please feel free to reach out for a chat.

Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.