Case Update: Tikanga and its application to disciplinary processes
Cases, Employment Law / 26 October 2023
Following our article on the application of tikanga in the workplace, the Employment Court has considered a further case involving a disciplinary process which affected the mana of a Māori employee who was dismissed and raised a personal grievance claim, in Pact Group v Robinson  NZEmpC 173.
Ms Robinson was successful in her claim in the Employment Relations Authority, which ordered Pact Group to pay her $20,000 compensation for hurt and humiliation. Pact Group unsuccessfully challenged that determination in the Employment Court, which increased the hurt and humiliation award to $31,000. It also awarded three months’ lost wages, and payment equivalent to three weeks long service leave.
Key Case Facts:
The background facts were that:
- Ms Robinson was employed as Community Support Worker with Pact Group. She had held that role for close to 15 years prior to her dismissal for failing to complete stipulated hours of work and claiming for hours that were not actually worked.
- Pact Group sought to address disciplinary allegations with Ms Robinson at a virtual meeting, and refused her request to meet in person.
- At the meeting Ms Robinson reiterated that she had wanted to meet in person and said that the way in which Pact Group had dealt with matters had left her feeling “stripped of her mana, culturally disadvantaged, and that this mishandling of [her] mana had resulted in feelings of shame.” She also touched on her personal circumstances, including that she was the carer of her mother and that she was suffering herself from a health condition.
- She said she did not feel that the way the meeting was conducted enabled her to talk to Mr Cardy in a direct and personal way; she formed the impression that he was not listening to her and struggled to hear all Mr Cardy was saying.
- Ms Robinson expressed the view that Mr Cardy had unfairly made assumptions that when she was not with a client or driving during the workday, she was not working.
- The next day Mr Cardy wrote to Ms Robinson of his decision that she had failed to provide a reasonable explanation for her actions, and she was dismissed for serious misconduct with immediate effect.
The Court commented that the fact that Ms Robinson is Māori and raised concerns about the impact of the process on her mana, was relevant, and said that there was nothing to suggest that these concerns were seriously considered, explored or factored into the way in which the company responded. It said “indeed it is apparent that the process was hurried and conducted in distanced, impersonal way that was undermined, rather than maintained, Ms Robinson’s mana”.
The Court also commented that there may be associated risks with conducting disciplinary processes via Zoom, and while there may be circumstances in which it is fair and reasonable to conduct a disciplinary meeting via Zoom, and to decline a request from an affected employee for an in-person meeting, this was not the case here.
The Court further noted that recent research suggests that low audio quality negatively impacts the impression people take from the information being conveyed in a virtual forum.
Message for Employers
This case sends a strong message to employers to consider the processes they are using especially the way these are conducted, and make reasonable accommodations if employees raise issues with the process, including around conducting meetings virtually or in person, and in terms of any impact on an employees’ mana.
If you would like to discuss what this means for your workplace, please contact our team.
Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.