Tikanga and employment relationships – What is expected of employers?

18 Jul 2023
Author: Andrea Twaddle

The recent Employment Court decision in GF v Comptroller of the New Zealand Customs Services [1] provided guidance regarding the application of tikanga in employment relationships. The case considered the dismissal of an unvaccinated employee who was terminated from Customs as a result of the Covid-19 Public Health Response (Vaccinations) Order 2021. However, in Court’s decision, significant comment was made about the expectations of an employer where it purports to incorporate tikanga/tikanga values.   

Tikanga and New Zealand employment law 

It is not new that New Zealand courts have confirmed tikanga/tikanga values are recognised in New Zealand law, despite tikanga not being explicitly referred to in the Employment Relations Act.   

In Ellis v R [2], the Supreme Court unanimously found that tikanga has and will continue to be recognised in the development of the common law in New Zealand, in cases where it is relevant. The Supreme Court’s judgment made clear that tikanga/tikanga values may be the determining factor in a case, and relevant to the exercise of judicial discretion.    

As New Zealand employers increasingly incorporate tikanga/tikanga-based principles into their organisational values, policies and procedures, it is important to be clear that these have real meaning and obligations which follow. Employers should not be paying lip service to tikanga and tikanga values.  

GF v Customs 

In GF v Customs, Customs had incorporated tikanga/tikanga values into the employment relationship. This included, among other values/principles, Te Tiriti o Waitangi principles of partnership, protection and participation into their employment documentation (including its Statement of Intent, Rautaki Mana Ārai – Customs’ Strategy, and employee induction materials), expressed as kotahitanga, kaitiakitanga and manaakitanga. 

The Court observed that the extent to which employers have met their commitment to tikanga/tikanga values is relevant in assessing whether the employer has:  

  • acted justifiably, i.e. as a fair and reasonable employer in all the circumstances; and  
  • met its good faith obligations. 

As a public sector employer, Customs was also obligated to uphold the “heightened” obligation to act as a good employer under the Public Service Act. The Court considered it was seriously arguable that the obligations imposed by the Public Service Act [3] are broad, possibly extending to require public service organisations to understand and act consistently with tikanga/tikanga values relevant to their role as a good public service employer. 

In GF v Customs, Customs was held to have failed to comply with the tikanga/tikanga values that it had incorporated into the employment relationship, and was deemed to have breached its obligations to the employee. Specifically, the Court found that there was an unjustified dismissal and disadvantage. Customs did not act as a fair and reasonable employer. It had failed to follow the tikanga it had voluntarily incorporated into its procedures, and breached obligations of good faith, by: 

  • a failure to follow fair and reasonable process; 
  • inadequate engagement; and 
  • a predetermined and flawed decision to terminate. 

At a minimum, given Customs had expressly introduced tikanga into the employment relationship, it was obliged to acknowledge and consider how applicable tikanga/tikanga values should inform its conduct in dealing with employment relationship issues.   

The Court found that Customs did not meet their tikanga obligations, as it: 

  • did not approach the issue on a sufficiently individualised basis; 
  • failed to engage in a way that was mana enhancing; 
  • unnecessarily rushed the process; 
  • had inadequate steps to ensure that the right people were involved for discussion and exploration of common grounds in a no-fault situation; 
  • declined to pause the process when requested to enable further discussion; and 
  • provided inadequate time to consider the newly introduced Vaccinated Order. 

The Court noted that the employee was not obliged to specifically request that Customs act in accordance with tikanga, the obligation was on Customs to actively follow its own undertaking. The application was not limited to those of Māori descent, given tikanga was incorporated into Customs’ relationship with all staff. 


Guidance for employers 

The Employment Court used its power to make recommendations under the Employment Relations Act [4] regarding the actions Customs should take to prevent similar problems arising. This provides useful guidance for employers wishing to ensure that its embracing of tikanga/tikanga values is meaningful.   

The Court recommended that Customs:  

  • engage pūkenga (tikanga experts) to ensure that it has the capacity and capability to meet its obligations and commitments to tikanga/tikanga values; and 
  • take steps to receive appropriate advice and training on the nature and scope of these obligations. 

This case should not deter employers from incorporating tikanga/tikanga values into the employment relationship. As noted by the Court, “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.” [5]  

Employers are wise to seek guidance to ensure that incorporating tikanga/tikanga values is done in an informed, meaningful way, accompanied by a commitment to training to ensure that obligations will be understood and met.  

If you are an employer or employee who would like guidance about the implications of this case, please reach out to our specialist employment law team at DTI Lawyers. You can contact us on 07 282 0174, or reception@dtilawyers.co.nz


[1] GF v Comptroller of the New Zealand Customs Services [2023] NZEmpC 101, issued 30 June 2023.

[2] Ellis v R [2022] NZSC 114.

[3] Public Service Act 2020, section 73.

[4] Employment Relations Act 2000, section 123(1)(ca).

[5] GF v Comptroller of the New Zealand Customs Services [[2023] NZEmpC 101 at [16].

Tikanga and employment relationships – What is expected of employers?
About the Author
Andrea Twaddle
Andrea is an experienced specialist employment lawyer and Director at DTI Lawyers. She advises on contentious and non-contentious employment law issues, including privacy, and health and safety matters. Andrea is AWI-CH qualified, and undertakes complex workplace investigations. She is a member of the national Law Society Employment Law Reform Committee, a former Council Member at the WBOP District Branch of the Law Society, and Coordinator of the WBOP Employment Law Committee. Andrea is a sought-after commentator and speaker on employment law issues at client and industry seminars. She provides specialist, strategic advice to other lawyers, professional advisors and leadership teams. You can contact Andrea at andrea@dtilawyers.co.nz