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The increase of Tikanga Māori obligations for Employers

If tikanga Māori values are incorporated into an employment relationship, they must be upheld by an employer when dealing with employment issues.

This was stated by the Employment Court in a recent case GF v Comptroller of the New Zealand Customs Service [2023].   It was determined that an employee, who refused to get vaccinated, was unjustifiably dismissed by their employer, New Zealand Customs Services.


In October 2020, the New Zealand Government recognized the threat of Covid-19 and responded by hiring additional workers in various Government agencies, including Assistant Customs Officers Maritime Border (ACOMs) – GF being one of these ACOMs. In February of 2021, it was announced that ACOMs would need to be vaccinated to continue their roles. Five workers, including GF, refused to get vaccinated and were subsequently invited to a meeting where they were given notice of termination of their employment.


The main questions for the Court to determine were whether GF’s dismissal was unjustified, and whether they suffered an unjustifiable disadvantage from their employer’s actions.

Unjustified Dismissal

Customs, as an employer, had a duty to act in good faith when dealing with employees. According to section 103A (2) of the Employment Relations Act 2000, the Court must assess if the employer’s actions are what a fair and reasonable employer would have done in all of the given circumstances.

In this case Tikanga Māori values were incorporated into the employment relationship through avenues such as policy, induction processes, and organisation values. The Court emphasised that because tikanga has been introduced into the employment relationship, the extent to which these values are met should be considered when assessing the broader relevant circumstances of the fairness and reasonableness of the employer’s actions under section 103A.


The Court found that Customs fell short at a base-line standard in two ways:

Customs failed to meet the standard of a fair and reasonable employer under section 103A by having a predetermined view of the outcome, failing to adequately engage with GF, and neglecting to carry out an adequate and individualized health and safety assessment for GF’s role.

Customs failed to fulfil its statutory obligation of good faith to GF, as outlined in section 4 of the Act. This included a lack of sufficient activity and communication with the affected employees.

Customs also failed to act as a fair and reasonable employer under both s 4 and s 103A of the Act regarding heightened obligations flowing from tikanga values which the organisation had incorporated into its employment relations framework. The Court was not persuaded by the submission that Customs were “on a journey” of adhering to tikanga.

What does this mean for employers 

In 2012, the Supreme Court accepted in Takamore v Clarke that “Māori custom according to tikanga is part of the values of the New Zealand common law.”

The case of Takamore v Clarke concerned the sensitive issue of where and how a loved one should be buried. The lack of consensus among immediate family and wider whanau and hapu meant that Takamore engaged several issues regarding the intersection of tikanga Māori, burial customs, and the Common Law of New Zealand.

The very next year, Justice Sir Joe Williams noted that “Lex Aotearoa” is very much alive. It is still fragile, but its survival is more certain now than in the past.

New Zealand is in a period of transformative recognition of tikanga Māori in the law, now more prevalent in legislation and increasingly being recognised by the courts as an integral part of decision-making. This trend will only continue and eventually employers will need to consider tikanga-based interests. It is becoming important that if tikanga values are incorporated into an employment relationship, an employer is expected to meet these standards when dealing with employees.

Tikanga is no longer going to be just a ‘nice to have’ in our employment agreements, Policies, and workplaces.  They will be an integral part.


This information is not a substitute for legal advice, we recommend that if you identify problems in the areas listed you consult with someone before acting on any material you have read