au_common_admin, Author at McCaw Lewis

The difference between wills and enduring powers of attorney

Posted on July 8, 2024March 19, 2026 by au_common_admin

Wills and enduring powers of attorney are often discussed and prepared at the same time with your lawyer as a prudent part of a person’s estate planning. However, the documents have distinct purposes, and the roles of executors and attorneys are often confused. Understanding how these different documents operate is essential for ensuring that your affairs are managed well, and your wishes are honoured, in life and in death.

Your enduring powers of attorney are valid only while you are alive and, in many situations, only if you lose mental capacity. Your will, on the other hand, while valid upon signing, the provisions are carried out upon your death.

Will

A will is tailored to each individuals’ unique circumstances but must include who you would like to administer your estate and who you would like to receive your assets once you die. It can also include your wishes around the appointment of guardians for minor children and burial and/or cremation. While you are alive and have mental capacity, a will can be updated or amended as many times as you like.

Your executors are persons you appoint under your will to administer your estate once you die in accordance with your will and other legal provisions. Some duties of your executor/s include:

applying for probate if you die with over $15,000 worth of assets;
uplifting your assets and pay off any/all debts; and
distributing your remaining assets to the beneficiaries as stated in your will.

The executor/s play/s a crucial role in ensuring that your wishes as outlined in your will are carried out, while also managing the estate’s affairs responsibly and in accordance with legal duties. An executor/s authority to act for you only comes into effect upon your death.

Enduring Powers of Attorney

There are two types of enduring powers of attorney (EPAs): one for personal care and welfare, and one for property. EPAs are a flexible document that allows a trusted person or persons (your attorney/s) to act on your behalf and make decisions for you concerning your property and care and welfare during your lifetime.

A key distinction between the two EPAs is that an attorney’s authority to act for you in relation to your personal care and welfare only comes into effect if you are certified by a medical professional as no longer having the requisite mental capacity to be able to make those decisions yourself. This is to ensure that your right to make your own decisions relating to your health and life are protected and only limited to the extent truly needed, i.e. once you no longer have the ability to make decisions in your own best interests. With a property EPA, you can elect for it to come into effect immediately upon signing or on mental incapacity, and you should speak to a lawyer about which option would be most appropriate for your circumstances.

You have the ability to define any restrictions of the authority granted in the EPAs, including specifying whether you would like your attorney to consult with any other persons about decisions they are making on your behalf.

If you do not have EPAs in place and lose the mental capacity to make your own decisions, then as an adult, no one has the automatic right to make decisions on your behalf in relation to your property and personal care and welfare. If this situation arises, your family will be required to apply to the Family Court to have a welfare guardian appointed and property manager appointed so that someone can make decisions for you. This process is costly and can be lengthy. If you do not have a will when you die, the law sets out who is entitled to administer your estate and benefit from your estate meaning you do not control who you would like to administer your estate or benefit from your estate.

Once you die, your EPAs become void and your attorney/s no longer have the power to act on your behalf. The power to make decisions in relation to your estate passes to your executors to administer your estate in accordance with the directions/wishes set out in your will.

Our Asset Planning team is available and dedicated to offering expert advice and guidance regarding inquiries related to your will and enduring powers of attorney. If you have any questions about such matters, please feel free to get in touch.

Top Tips for managing your Ahu Whenua Trust

Posted on June 27, 2024March 19, 2026 by au_common_admin

Ahu Whenua Trusts

Ahu Whenua Trusts are trusts set up to manage one or more blocks of Māori land or General land owned by Māori. The trustees have legal responsibility for the whenua (land) and make decisions about how it is used and who may occupy it, on behalf of the beneficial owners.

Having an ahu whenua trust in place is a great way to bring owners together to make decisions and take positive steps toward developing, utilising or preserving their whenua. However, managing a trust can be complex and time-consuming and trustees have legal obligations they must comply with. Our tips for the smooth running of your trust are set out below and include engaging effectively with beneficial owners; managing the administration; and ensuring your trust order is up to date.

Engaging with beneficial owners

Engaging with beneficial owners is essential in guiding the trustees and in developing and pursing a moemoeā (vision) for the whenua.

Holding hui (meetings) is the main engagement tool for trusts and we recommend hui be held regularly, depending on how much mahi (work) the trust undertakes. A hui will need to be called in accordance with the trust order and trustees should report on the activities of the trust since the last hui was held. This will include financial reporting, recent projects and any proposed policies. There should also be opportunity for beneficial owners to raise and discuss issues and any trustee vacancies filled.

We recommend trustees consider additional engagement with beneficial owners, such as via a trust page or website or the issue of a pānui (publication). The more communication with owners, the more involved and engaged the beneficial owners will feel. This can aid the smooth running of the trust, as any issues can be raised and addressed regularly before they become more serious.

Managing the administration

It is important that the administration of the trust is managed well, to ensure legal compliance and protect trustees, and provide transparency to beneficial owners to build confidence in the trustees.

Our tips for administration include:

Trustees should complete trustee training when appointed. Trustee training is available for free through the Māori Land Court.
Minutes need to be completed for all hui, both beneficial owner hui and trustee hui. The minutes should include an attendance list and clearly record resolutions made and payments approved.
Financial statements should be prepared to present at AGMs. If the income of the trust is significant, we recommend having them prepared by an accountant.
Relevant documents should be kept electronically, which can be accessed easily. This includes the trust order, trustee orders, policies, any updates of those documents, financial reports.
Check the Māori Land Court records periodically for updates to beneficial owners’ list and ask for owners to update their details at all hui. This ensures the widest possible engagement.
Reasonable queries and requests for information by beneficial owners be dealt with promptly. This maintains confidence in the trustees.

Trust orders

A trust order is required for ahu whenua trusts and sets out the powers and obligations of the trustees. The trustees must know and follow the trust order and it is important that the trust order is kept up to date and is relevant. The trust order can explicitly incorporate relevant tikanga to guide both the trustees and owners.

Our tips for updating your trust order include:

Ensure simple language is used that is easy to understand.
Update clauses to provide for advances in technology and changes in the law. This keeps the trust order relevant and can help the trust to engage wider and more easily with beneficial owners and reduce administration costs.
Consider adopting policies to sit alongside the trust order. This is helpful for matters that may not need to be detailed in the trust order but where it is important to have an agreed process.
Consider weaving tikanga into your trust order where appropriate.

Amendments to the trust order can be made as necessary, although must be supported by the beneficial owners. A hui should be held to secure approval and notice of such hui should indicate proposed amendments are on the agenda. Once approved, an application can be made to the Māori Land Court to formally amend the trust order.

Further assistance

Our team is experienced in providing advice and assistance in respect of managing your ahu whenua trust and amending or updating your trust order and policies. Please get in touch with us for all your needs and we will be happy to assist.

Simplifying “Granny Flats”: Central Government Seeking Feedback to Shape New Housing Legislation

Posted on June 27, 2024March 19, 2026 by au_common_admin

The Central Government has released a discussion document proposing reforms to the rules for building small structures, commonly known as “granny flats.” The Ministry of Business, Innovation and Employment and the Ministry for the Environment are seeking public feedback on the proposal, which aims to streamline the construction process for these dwellings.

This initiative forms part of the Government’s promise to require councils to permit the construction of small dwellings (60 square metres or less) in rural and residential zones without the need for resource consent. The pānui sets out the proposal, the consultation process, and the potential impacts of these reforms.

The proposed changes aim to address the country’s housing crisis by facilitating the increased development of papakāinga. These changes would provide hapū, iwi, and whānau with opportunities to quickly develop papakāinga on their land, potentially offering a practical solution to the widespread housing issues affecting many individuals across the nation.

What’s being proposed?

The Government plans to ease restrictions under local plans and relax building code requirements to make it significantly easier for New Zealanders to build granny flats. They have stated that this effort is designed to increase the supply of affordable homes and provide alternative housing options for the aging population.

The proposal includes amending the Building Act 2004 and the Resource Management Act 1991 (RMA), as follows:

Building Act 2004 Changes: While all construction must comply with the New Zealand Building Code, the new rules would exempt granny flats from needing building consent. The Government seek feedback on the benefits, costs, and risks, as well as alternative ideas to save time and money.
RMA Changes: The proposed changes aim to establish a consistent nationwide approach to resource consents, including the introduction of a National Environment Standard to allow granny flats in both rural and residential zones without requiring resource consent.

What’s the risks?

While the proposal has been generally well-received, particularly among tiny home advocates, many emphasise the importance of balancing speed and quality in construction. The Government have acknowledged the need to ensure safe, healthy, and durable homes while facilitating quick and cost-effective building processes. Some of the key risks include:

A significant increase in small, randomly placed dwellings across the country.
Possible rushed construction leading to substandard buildings and health and safety risks.
Overlooking important checks and balances in the building sector that prevent health and safety issues.

How to submit feedback

You can provide feedback by completing an online survey or submitting a form via email to grannyflats@mbie.govt.nz or by mail to the Ministry of Business, Innovation and Employment. Feedback is sought on:

The benefits and risks of the proposal.
Effects on the Resource Management system.
Local Government Infrastructure Funding.
Māori land, papakāinga, and kaumātua housing.

Submissions are due by 5pm, Monday 12 August 2024. The Government will review all feedback, and changes to the legislation are aimed to be implemented by mid-2025.

If you want to learn more, you can access the Ministry of Business, Innovation and Employment’s webpage at the following link.

Get in touch

Our Te Taiao Team is able to assist with all resource management-related pātai that you may have. We are also available to discuss any resource consent matters and any other bespoke environmental queries.

Kylee is a Director in our Te Taiao Team and can be contacted on 07 958 7424.

A tenant’s snapshot guide to commercial leasing

Posted on June 19, 2024March 18, 2026 by au_common_admin

Commercial leases are a core component of most businesses operating in New Zealand, and as a tenant it is essential to understand the key terms, and potential risks associated with your lease agreements, to ensure that your commercial endeavours can thrive.

Below, we will briefly discuss some of the key elements of which to be aware and advise on how to avoid some of the more common pitfalls.

Understanding the Legal Framework

Commercial leases in New Zealand are governed by the Property Law Act 2007 (the Act). The Act outlines baseline requirements and rights of landlords and tenants, however many of the lease terms can be set or changed based on what works for the parties’ specific circumstances. It is up to you to ensure that your lease is fit-for-purpose and makes sense for your business.

Negotiation of Lease Terms

Commercial lease negotiations can involve a wide range of terms including rental amounts, term, renewal options and rent reviews as well as any special conditions specific to the parties or premises.

We recommend speaking with a lawyer at this stage before you sign, to make sure you are adequately protected and that the lease contains the rights and protections that you need it to.

Key Considerations of a Lease for a Tenant

Rent Review Mechanisms: Leases will usually include rent review clauses that outline the process for adjusting rent over time. Often, these are built around regular market valuations, CPI increases, or a combination of the two. You should make sure you understand how often reviews will occur, what mechanisms will be used, and what if any) limits there are on how much your rent could go up. Understanding of this mechanism can also ensure that you notice anything untoward occurring.
Business Use: The purposes for which you will use the premises must be recorded carefully. For example, if the lease lists the business use of the premises as offices, yet you wish to open a retail store, you will need to seek additional permission from the landlord or risk being in breach of the lease. You may need to think ahead: if it is foreseeable that you may pivot to a different kind of business, the use should be described more broadly.

Outgoings: There are additional costs that you will likely need to pay, known as outgoings. The lease should specify what these are and their estimated annual cost. Some of the items that tend to be included in outgoings are rates, building services and maintenance, the landlord’s insurance premiums, utilities, and the collection of rubbish. Outgoings can vary broadly depending on the use and specifics of the premises.

Maintenance, Repairs & Make Good: A lease will typically specify the responsibilities of each party relating to property maintenance and repairs. As a tenant, you will usually be responsible for maintaining and repairing the interior of the premises, as well as glass, floor coverings and any garden or lawn areas. You must make good any damage caused either by you or by someone for whom you are responsible (for example, your employees, guests or customers). The landlord is responsible for any structural issues and building services contracts. Regular property inspections and thorough documentation of the property’s condition at the start of the lease can help avoid disagreements over maintenance and repairs issues. It is also common for leases to contain “make good” provisions: at the end of your tenancy, you will return the premises to the state it was in at the beginning of the term. It is advisable to keep a record of damages as they arise, as well as any alterations.
Dispute Resolution: Disputes may arise during the lease term. Leases should include clauses for mediation or arbitration to provide a structured process for resolving disagreements. Timely and amicable dispute resolution can help maintain a positive landlord-tenant relationship. To avoid a costly dispute, communication is key, and if there are potential issues, get in touch with your lawyer soon rather than later.
Personal Guarantee: In some instances, the landlord may feel that it is necessary for the Tenant’s obligations under the lease to be personally guaranteed by someone. This is especially common when the Tenant is a company – the landlord would usually seek personal guarantees from the directors and/or shareholders. If you agree to sign a personal guarantee, then you are personally taking responsibility for the Tenant’s obligations under the lease. This means that if the Tenant is unable or unwilling to meet its obligations, the landlord can require you to step in, including to pay any money owing to the landlord. If you are being asked to give a personal guarantee, you should speak with your lawyer before you sign.

Commercial leases are important legal documents which impose significant obligations and grant significant rights to commercial tenants. Navigating these waters can seem daunting, however a good lawyer will be able to guide you through the process. Contact us to discuss how we can help you with your lease.

Ezrom is a Solicitor in our Commercial Team and can be contacted on 07 959 2313

Should I make my offer conditional on a Toxicology Report?

Posted on June 7, 2024March 19, 2026 by au_common_admin

On 29 May 2018, the Office of the Prime Minister’s Chief Science Advisor produced a report on Methamphetamine Contamination in residential properties. Most of us will remember the various headlines in the newspaper and on the news and social media; “Meth house contamination debunked by PM’s science advisor” or “The Meth House is a Myth”.

Prior to the report toxicology reports, or “meth tests”, were commonplace and seen as an essential part of any purchaser’s due diligence investigation. Since the report toxicology reports have fallen out of favour. We have seen a rapid decline in purchasers opting to select “YES” to make their offer conditional on a toxicology report.

What was in the report?

The report mainly relates to health effects of third hand contamination in properties and compares the contamination levels from smoking meth to those from the manufacture of meth.

The report was produced to create discussion around the methods of testing, to establish more guidelines, and states that there is a clear need for more research.

In particular, the report noted that:

There is evidence of “adverse physiological and behavioural symptoms associated with third hand exposure to former meth labs”.
Lower levels of meth contamination do not rule out manufacture, and cleaning down to the former standard of 1.5 µg /100cm² may be necessary if you suspect manufacture within the house. However, it is not possible to conclusively determine whether a property has been used for manufacture or smoking based on the levels of meth found.
That a level of 15 µg /100cm² may be more realistic, compared to the former guideline of 1.5 µg /100cm².
Decontamination is only recommended for identified former meth labs or properties where excessive meth use, indicated by high contamination, has been determined.

Our advice

Our advice to you as a landlord, purchaser or homeowner, is to still have the property tested for meth.

You will need to consider:

The “on sale” aspect of purchasing a contaminated house which may have the stigma of being a “meth house” and could prove harder to sell.
Your mortgagee/lender and insurance company, and what their requirements are in terms of a contaminated house.
Whether you (or your tenants) would expect the house to be entirely contamination-free. Occupants with respiratory issues or weakened immunity systems may be more susceptible to health issues associated with meth contamination, even at lower levels.
If it is an investment property, will a toxicology report be required by your Property Manager?

Putting aside these issues, it may come down to personal choice as to what you would accept as an acceptable standard of contamination, versus what the Ministry of Health guidelines state. These differences may be vast.

If you are looking at purchasing a house, we suggest that you contact our office so that we can discuss these matters further and if necessary, provide you with a suitable condition to insert in your sale and purchase agreement, to cover your requirements.

Kerri is a Senior Legal Executive in our Property Team and can be contacted on 07 958 7423.

Mental Health and Hauora/Wellbeing in the Workplace

Posted on May 30, 2024March 19, 2026 by au_common_admin

Employers and employees alike may experience mental illness at any stage in their lives. Given the length of our working lives – the likelihood of it happening during our working life is high. With that in mind, it is important to foster workplaces where talking about mental health is a safe and natural thing to do.

In this article, Tazmyn offers tips to equip employers to support their employees in the workplace and understand their obligations if an employee is experiencing mental health challenges.

What does the law say?

Firstly, an employer has an obligation to take all reasonably practicable steps to prevent harm in the workplace. If all reasonably practicable steps are not taken, and an employee suffers harm, they may have grounds to bring a personal grievance under the Employment Relations Act 2000 (the ERA).

Under the Health and Safety at Work Act 2015 (the Act), employers are referred to as a PCBU (“person conducting a business or undertaking”). A PCBU has a paramount obligation to ensure the health and safety of their employees. The “health” in health and safety includes mental health.

Looking at case law, FGH v RST [2018] NZEmpC 60 provides some key points around an employer’s obligations regarding an employee with mental illness, specifically in cases where performance is in question. Where an employee discloses a mental health matter, an employer should first understand the matter prior to entering any form of disciplinary process. In that case, it was not enough that the employer had offered extra support to the employee – the employer had a positive obligation to seek further information. The employee stayed employed, and in 2021 raised further personal grievances after a disciplinary process. The Employment Court ruled in favour of the employer this time as they had engaged a psychiatrist to assess whether the employee was fit to work and able to participate in a disciplinary process. The learning from the second proceeding is that if independent advice declares an employee fit and able to participate in a formal disciplinary process, and there are no other perceived risks to be addressed, an employer can proceed with caution.

What can employers do?

A mental health/wellbeing/Hauora policy is an essential part of ensuring that employers are upholding their obligations and most importantly, looking after the people of their business. Policies should set out what type of support is available, including guidance for employees around how to navigate or approach things or who to go to for a confidential kōrero.

When it comes to mental health, Hauora, and wellbeing, unfortunately no one (including employers) have all the answers – as much as we might wish we did. What we do know is that creating a healthy, safe, and supportive environment is fundamental. He aha te mea nui o te ao? He tāngata, he tāngata, he tāngata. What is the most important thing in the world? It is people, it is people, it is people. A Māori proverb and reminder that it is people who are at the centre of what we do – let your workplace be one that is equipped to support its people when times get tough.

Our workplace team at McCaw Lewis are available to discuss and assist with reviewing/drafting mental health and Hauora policies for your workplace. The team are also available to assist you in any employment process where an employee is affected by mental health where support and a cautious approach is required.

Tazmyn is a Solicitor in our Workplace Team and can be contacted on 07 958 7467.

How do I raise a personal grievance with my employer?

Posted on May 14, 2024March 19, 2026 by au_common_admin

A personal grievance is one of the main ways for employees to make a complaint against their employer if they believe their employer has acted unfairly or unreasonably towards them. Grounds for personal grievance cover a number of actions including, but not limited to:

an employer failing to follow a fair and reasonable process in respect of action taken against an employee, such as changing the employment terms and conditions, or making their role redundant;
an unjustified dismissal, where an employee feels there was no reason for their dismissal, or that the process followed by their employer was not fair or reasonable;
a constructive dismissal, where an employee felt they had no option but to resign as a result of the employer’s actions; or
an unjustifiable action that disadvantages the employee. This ground encompasses a range of actions that are not reasonable or taken in good faith, the key factor being that the action causes disadvantage to the employee by affecting their working conditions or employment.

To raise a personal grievance, you do not need to explicitly state to your employer that you are raising a personal grievance. You just need to clearly tell your employer what the problem is. Detail what they did or did not do to cause the grievance (for example, what was done incorrectly), what impacts has it had on you and what you would like them to do to remedy your grievance.

Generally, this is best done in a letter to keep a paper-trail in case issues arise further down the track. It would also be helpful to check if your employment agreement provides for a personal grievance process so you can follow that.

Time limitations

If you wish to raise a personal grievance, you must raise it within 90 days of the employer’s action that caused the grievance or when the action first came to your attention e.g. if your employer told you they were dismissing you. If you are raising a personal grievance regarding sexual harassment, you have up to 12 months from when the harassment occurred or when you noticed it occurring.

If it has been more than 90 days, you may still be able to raise a personal grievance if your employer agrees. It is not often that we see employers agreeing, so it is key to stick to the time limitations if possible. If your employer doesn’t agree, you can apply to the Employment Relations Authority (ERA), to be allowed to raise a personal grievance after the 90-day period. However, there is a high threshold you will need to meet as granting a personal grievance past the time limitations can only be done in exceptional circumstances as outlined in section 115 of the Employment Relations Act 2000.

Options/Alternatives

In the first instance, employees should first talk to their employer to resolve problems. Trying to resolve the problem informally can sometimes help keep the employment relationship positive. This is important if you wish to continue working at your job and want to work through the problems collaboratively with your employer.

Mediation is another alternative to consider if matters cannot be resolved informally. This entails an independent mediator stepping in (if both parties agree) to assist in resolution by encouraging discussions, outlining the overlying and underlying issues, and providing possible solutions that work for both parties. This is a free service provided by the Ministry of Business, Innovation and Employment.

Alternatively, you could raise a personal grievance with the ERA directly. It is highly likely the ERA will refer you to mediation in the first instance if you have not tried it already. You have three years to begin proceedings in the ERA after your personal grievance was first raised with your employer.

A tip for employers. If an employee has raised with you a personal grievance, it is important for you to take their grievance seriously and to follow a fair and proper process in resolving their grievance in a constructive and timely way. It is important to listen to your employee’s grievance, to keep an open mind and avoid predetermination of anything before you have all the facts and information.

If you are needing advice around raising a personal grievance, whether you have grounds to raise one or even looking for alternatives to resolve matters before it escalates to that point, McCaw Lewis has an excellent workplace team who can assist you.

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

Supreme Court Backs Forest & Bird in Major Infrastructure Appeal of NZTA’s East West Link

Posted on April 30, 2024March 19, 2026 by au_common_admin

The New Zealand Transport Agency (NZTA) applied for resource consent to the Environmental Protection Agency (EPA) in 2016, citing the East West Link (EWL) as a project of national significance. A Board of Inquiry (the Board) was appointed by the EPA to assess the project’s environmental impact and public interest aspects.

Despite objections from groups such as Royal Forest and Bird and Ngāti Whātua Ōrākei Whai Maia Limited (Ngāti Whātua Ōrākei), the Board approved the resource consents, subject to strict consent conditions.

Following this decision, Royal Forest and Bird, along with Ngāti Whātua Ōrākei, appealed to the High Court, challenging the Board’s interpretation and application of planning policies. Several mana whenua groups including Ngāti Maru Rūnanga Trust, Te Ākitai Waiohua Waka Taua Incorporated, Ngāi Tai ki Tāmaki Trust and Ngāti Tamaoho Trust also participated as interested parties to the appeal.

The appeal to the High Court was unsuccessful, and as such, a further appeal was made to the Supreme Court of New Zealand.

The Supreme Court Decision

The Supreme Court, in a majority ruling, agreed with Royal Forest and Bird, directing the Board to reassess its decision in light of their findings. The majority held that the EWL’s environmental effects on indigenous biodiversity trigger ‘avoid’ policies under the Auckland Unitary Plan (AUP) and the New Zealand Coastal Policy Statement (NZCPS).

They criticised the Board’s methodology and emphasised the high threshold required for such projects to proceed despite policies requiring avoidance of activities with certain adverse effects.

However, a dissenting opinion argued that the relevant provisions allowed flexibility in considering avoidance policies and saw no flaw in the Board’s approach.

The Supreme Court further ruled that assessing matters relating to mana whenua issues based solely on Ngāti Whātua Ōrākei’s withdrawal of appeal grounds in the High Court was inappropriate and therefore not within the scope of the Supreme Court process.

What does this mean going forward?

The Supreme Court’s decision has significant implications for the EWL project and sets a precedent for future infrastructure developments with regional and national significance. It underscores the growing importance of environmental considerations in major projects and signals the need for thorough compliance with environmental policies and frameworks.

For NZTA and the EWL project, next steps include reassessment by the Board or exploring alternative pathways such as the new Fast Track Approvals Bill (FTA). The FTA is a new framework designed to streamline the consenting process for infrastructure and development projects with significant regional and national benefits. However, this approach would be met with heavy criticism given this would be a clear attempt to circumvent the standard process.

Overall, the ruling underlines the delicate balance between infrastructure requirements and environmental protection, highlighting the need for comprehensive assessments and robust mitigation strategies in large-scale projects. Additionally, it sets out a pathway for projects of national significance, even those triggering ‘avoid’ policies in national planning documents, albeit at a high threshold.

Get in touch

Tipene is a Senior Solicitor in our Te Taiao Team and can be contacted on 07 958 7430.

Considerations When An Employee Resigns Amidst Employment Issues

Posted on April 19, 2024March 19, 2026 by au_common_admin

During an employment or disciplinary process, we occasionally see employees tendering their resignation. The first instinct of a busy employer is to rush to accept this resignation, assuming this means the matter is resolved. However, this can create risk for the employer and we recommend that employers seek legal advice before rushing to accept.

In this article, we look into the risks associated with accepting the resignation at face value and how to mitigate these risks.

The Warning Signs

When an employee tenders their resignation amidst a disciplinary or other employment process, it is important to consider the resignation in context.

Of course, it is not always the case, however there could be alarm bells ringing that the employee is gearing up to raise a personal grievance on the grounds of constructive dismissal.

The content of the resignation letter gives the best indicator as to the employee’s intention. To meet the grounds of constructive dismissal, an employee could argue any or all of the below:

They had no option but to resign
They are resigning as a result of the employer’s actions or pressure
They consider the employer will decide to terminate their employment anyway, so the employee is getting in there first
The work environment was bad, or they will refer to recent events and/or a diminution in the employee/employer relationship. A common phrase we see is – “it is in everyone’s best interest for me to leave”

If you receive a letter with the warning signs, ensure you do not agree with the contents and do not accept it immediately. Ensure you encourage the employee to think about their decision further, and advise that you are available to discuss any concerns of points they have raised. If the employee still feels the same way later, then you can look into next steps.

What Next?

It is still possible to accept the resignation.

Ensure you act in good faith and address the employee’s concerns and engage with them about it. This could be penning an acceptance letter that acknowledges the employee’s concerns, but does not agree with them. This looks like the following:

Acknowledge the employee’s decision to resign
Respectfully disagree with claims they make (e.g. you have pressured me) and explain why
Recap any discussions held with them that are relevant and dispel their claims
Express gratitude for their hard work and wish them well

The key is ensuring that any other options are clearly open to them for consideration, before resignation is confirmed.

If the employee has tendered their resignation in the middle of a disciplinary process, it is possible to advise that you will not be accepting the resignation as there is a disciplinary process afoot. As these matters fall heavily on the facts, we recommend reaching out to a lawyer to discuss options to fit your bespoke situation and reduce your risk.

Employment law assistance

Our Workplace Law Team is able to assist with all employment questions/pātai that you may have.

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

Tips for Updating Your Marae Charter – Whakapai Marae

Posted on March 15, 2024March 19, 2026 by au_common_admin

Māori Reservations are a common type of Māori Land trust. They can be established through the Māori Land Court under the provisions of Te Ture Whenua Māori Act 1993 and are also governed by the Māori Reservation Regulations 1994. In most instances, Māori Reservations are set up for Marae and urupā purposes. When establishing a Marae, a Marae Charter is required to guide the trustees, marae komiti and beneficiaries in the governance of the marae.

Recently, there has been a noticeable increase in Māori Reservation Trusts and marae seeking to update their Marae Charters. Many are significantly out of date, hard to read, or do not make adequate provision for the aspirations of the marae or for the recognition of the tikanga and kawa of the marae. Our tips for updating your Charter include:

Communicate with your beneficiaries and include them in the updating journey.
Consider how your Charter will best reflect your beneficiaries and the tikanga of your marae. This could include wording or kupu Māori that best reflect the marae.
Ensure simple language is used that is easy to understand.
Update clauses to provide for advances in technology and changes in the law. This keeps the Charter relevant and can help the Trust to engage wider and more easily with beneficiaries and reduce administration costs.
Make sure the beneficiary class is correctly recorded according to the Court order. If changes need to be made to the beneficiary class this can be included in a beneficiary hui.
Consider including a kōrero tuku iho or historical kōrero relating to the marae and/or the land.
Consider including relevant principles that the trustees should have regard to when undertaking their duties and exercising their powers under the Charter.
Set out a clear relationship between the Māori Reservation Trustees and any Marae Committee and the function and accountabilities of each. Often if there are no clear responsibilities, this can cause confusion and tension amongst the groups.
Consider adding a dispute resolution clause that provides for the tikanga and kawa of the marae. This could include the involvement of kaumātua, referral to a council of kaumātua agreed between the parties, or provision for a hohou te rongo (restoration of peace/mediation) process.
Consider adopting policies to sit alongside the Charter. This is helpful for matters that may not need to be detailed in the Charter but where it is important to have an agreed process.

A Marae Charter is a living document and it should be regularly reviewed to ensue it remains suitable and workable for the marae and its beneficiaries and should be updated, where necessary. Maintaining a relevant Marae Charter can also help to keep beneficiaries engaged with the marae. The Māori Land Court also provides a useful Marae Charter template.

In reviewing and updating the Charter, consultation with and approval by the beneficiaries will need to occur. This often happens at beneficiary hui but may take the form of several wānanga, where the changes are more in-depth changes, or where more time is needed to reach a consensus. To ensure the process is run well, trustees should give sufficient notice of Marae Charter changes and ensure accurate minutes are kept of beneficiary hui.

Our team is available to work with you on modernising your Marae Charter and facilitating beneficiary hui to assist you with these matters.

For any pātai, be sure to get in touch. Tiana is a Senior Solicitor in our Kahurangi team and can be contacted on 07 958 9700.

Author: au_common_admin