Judge finds tikanga relevant in vaccine refusal sacking

Chief judge Christina Inglis. PHOTO: SUPPLIED
Chief judge Christina Inglis. PHOTO: SUPPLIED
A Southern Customs Service employee has won an Employment Court case challenging their dismissal for refusing to get the Covid-19 vaccine, in a judgement which could have wider ramifications for the entire public service.

In addition to finding the dismissal unjustified, during the hearing Employment Court Chief Judge Christina Inglis heard submissions on whether tikanga (Māori customary law or values) should have relevance in her decision-making process.

She found that because Customs had incorporated tikanga and tikanga values into its employment relationships, they could be relevant in this case.

"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 focused (where possible) on maintaining and restoring productive employment relationships."

It was clear that the Act required Customs, as a good public service employer, "to honour a commitment it has incorporated into its employment relationship with all employees (Māori and non-Māori) to act consistently with applicable tikanga/tikanga values", the judge said.

Suppression orders mean the Otago Daily Times cannot name the plaintiff, "GF", or identify at which port they were employed by Customs in October 2020, other than that it was in the South Island.

The judgement said GF was not "vaccine hesitant” but they did not wish to be vaccinated. Customs had ordered their work be performed by a vaccinated person, but GF argued vaccination was not required to carry out their duties.

After several notifications, exchanges of views and meetings, GF and four other staff from the same port had their employment terminated.

GF unsuccessfully challenged their dismissal with the Employment Relations Authority.

The Employment Court overturned that last week and awarded GF compensation for breach of good faith and lost wages.

Judge Inglis found that Customs’ conclusion that GF was a tier 1 (frontline) worker was not one that a fair and reasonable employer could have reached, and in any event the service had reached that decision without going through a proper process which met its obligations as an employer.

Upon discovering GF only became aware the day before it came into force that they were subject to a vaccination order, Customs should have, but did not, pause the process to provide an opportunity for GF to consider matters and make submissions, the judge said.

"It failed to act as a fair and reasonable employer and those failures led to GF being unjustifiably disadvantaged and dismissed," she said.

A Customs spokesman said the service had received the decision and was in the process of reviewing it.

The application of tikanga in the New Zealand justice system was considered by the Supreme Court as part of the Peter Ellis case. It delivered a far-reaching judgement which said the court was unanimous that tikanga had been and would continue to be recognised in the development of the common law, in cases where it was relevant.

Judge Inglis said she did not need to decide on the issue in the case of GF, but she considered it "seriously arguable" that the Public Service Act 2020 reinforced the relevance of tikanga/tikanga values.

To support that, the judge quoted a 2019 parliamentary speech by Prime Minister Chris Hipkins, who was state services minister at the time.

"We’re requiring chief executives to operate as a good employer, recognising the aims and aspirations of Māori, the employment requirements of Māori and the need for greater involvement of Māori in the public service. The Bill puts this right," Mr Hipkins had said.

In addition, she quoted Finance Minister Grant Robertson, who emphasised the Government’s commitment to "making sure that te ao Māori, the Māori world view, is understood and is part of how our public service operates".

mike.houlahan@odt.co.nz , Political editor