Month: November 2023

The GF v Comptroller of Customs case is a significant decision reinforcing the relevance of tikanga/tikanga values in the employment jurisdiction and the heightened obligations on public service employers.

The applicant GF was hired by New Zealand Customs Service (Customs) as an Assistant Customs Officer in a maritime border role.  During the COVID-19 pandemic, GF was dismissed due to not being vaccinated.

GF challenged the dismissal with the Employment Relations Authority and was unsuccessful.  GF then appealed the ERA’s decision to the Employment Court where the Court overturned that ERA decision.  The Court awarded GF compensation for breach of good faith and lost wages, and found that the dismissal was unjustified as Customs failed to act as a fair and reasonable employer.

Tikanga

Customs had incorporated, tikanga values/principles into its employment documentation, including as kotahitanga, kaitiakitanga and manaakitanga.

Against that background, the Court stated:

“While the Employment Relations Act does not expressly incorporate tikanga/tikanga values, I agree with Te Hunga Rōia Māori that the statutory framework for employment relationships does not preclude their incorporation. Indeed the tikanga/tikanga values identified in this case seem to me to sit entirely comfortably with an area of law which is relationship-centric, based on mutual obligations of good faith, and focussed (where possible) on maintaining and restoring productive employment relationships”

Despite GF not being Māori, the application of tikanga values was not limited to those of Māori descent, given tikanga was incorporated generally into Customs’ relationship with all staff.

The Court held that 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 the fairness and reasonableness of an employer’s actions, compliance with the good faith obligations and where the evidence demonstrates a commitment to act in accordance with tikanga, an employer should be obliged to do so.

Important Lesson for Employers

While this case puts all public service organisations on notice that they will likely be held to a higher standard, and that the “good employer” obligations factor into the section 103A of the Employment Relations Act 2000 fair and reasonable employer test, it is important that employers who incorporate tikanga values within their business, organisation or firm also ensure they are operating in line with those tikanga values.  It is helpful to understand:

• what values you seek to incorporate, including from a te ao Māori perspective;
• how these values are being incorporated through your business (i.e. through employment agreements, policies and procedures, contracts, etc); and
• how will you, as the employer and employee act in accordance with those.

If you have tikanga values within your business, it would be helpful to go through and check how these are working for you, or whether you need to adapt these to provide clarity and certainty as to working in line with those values/principles.

Cree is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 808 6069.

As an employer, it can be difficult to know what to do when faced with allegations of a serious nature.  Allegations could form an employee’s formal complaint of bullying and/or harassment, or they could be the employer’s own concerns that an employee has engaged in serious misconduct.

As a starting point, the complaint/concern needs to be taken seriously and the employer needs to determine whether an investigation is required to then be in a position to make an informed decision about what to do next.  Not all allegations or minor complaints require a formal investigation straight away, but employers need to turn their minds to this.  If an investigation is the way forward, this article provides some basic tips to start.

Some employers will have the resources internally to undertake a investigation into the matter.  Others will not have the resources/expertise or are run off their feet trying to operate their business, and may wish to take a more risk-adverse approach and outsource the process.

Set out below is a glimpse into the process of a workplace investigation, the circumstances where an investigation could be required, and whether an internal or external investigation may be better suited.

What does an investigation entail?

Any investigation must follow what a fair and reasonable employer could have done in all the circumstances.  An investigation must:

• Be undertaken in good faith;
• Follow a fair and thorough process;
• Utilise principles of natural justice.

The purpose of an investigation is to gather information and establish the facts.  An investigator should not recommend next steps or advise what decision should be made – they will make findings of what they consider occurred based on evidence gathered.  The investigator will also adhere to agreed Terms of Reference, which outlines the matters for investigation and the process.

The investigator must conduct their investigation without bias or predetermination.  They must uphold confidentiality and allow the employee a reasonable opportunity to respond to the allegations, and those interviewed the opportunity to be heard.

The process depends on the kind of investigation required.  As a starting point, the employer needs to:

• Review the employment agreement and company policies to check for the process.
• Identify a preferred investigator.
• Identify a preferred decision maker.
• Formulate Terms of Reference for the investigation. These form a roadmap and explain the process to be undertaken.
• Advise the employee concerned about the allegations, and share the draft Terms of Reference. Seek their feedback on the proposed investigator, decision maker, Terms of Reference and process.

An investigation can now begin, which broadly involves an investigator:

• Interviewing witnesses and formalising their statements;
• Providing the witness statements to the employee concerned;
• Interviewing the employee concerned and seeking their feedback to the allegations and witness statements;
• Formalising a draft report for feedback;
• Considering feedback received and finalising the report;
• Providing the report to the decision maker. The report will not contain recommendations for next steps – it will only contain the investigator’s findings linked to the evidence.

The decision maker can then consider the findings and make an informed decision as to next steps.

Who should undertake the investigation?

Employers can choose to investigate internally if they have the resources and time required, or alternatively can utilise an external workplace investigator.

Employers may opt to undertake the investigation internally if they have the resources and time needed.  The investigator must remain neutral and present the evidence gathered in a balanced way, for the decision maker to consider.  If an employer is looking to undertake the investigation internally, we recommend seeking legal advice regarding the process.

If an employer is looking to appoint an external workplace investigator, they must be:

• a licensed private investigator under the Private Security Personnel and Private Investigators Act 2010; or
• a lawyer holding a current practising certificate from the New Zealand Law Society.

The content of the allegations will also determine whether to conduct the investigation internally or outsource.  We recommend engaging an external workplace investigator for:

• Serious allegations made by an employee against their employer/senior employees.
• Any matters where there may be concern as to bias or predetermination.
• Serious allegations that include bullying, harassment or discrimination. These issues are complex, sensitive and are best investigated by an independent.
• Allegations of dysfunction amongst a team of employees.
• Allegations regarding concerns of health and safety.

Summary

Overall, the best approach is to look after your employees and take every complaint seriously.  Each complaint and/or concern will require a tailored approach as to best practice, however if an investigation is required, any investigator – whether internal or external – needs to handle matters confidentially, impartially and fairly.

Investigating complaints and concerns can be complicated.  Whether you require a workplace investigator, or are looking to carry out the investigation internally, and would like guidance, our team is able to assist.

Employment law assistance

Our Workplace Law Team is able to assist with all employment processes, workplace investigations and any other bespoke employment queries.

Chantelle is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 958 7473.