Māori custom to assist challenge by worker dismissed for refusing Covid-19 vaccine

Employment Court chief judge Christina Inglis. Photo / Auckland District Law Society

A public sector employee dismissed for not getting vaccinated is to challenge his employment case using principles of Māori customs and how they relate to the workplace.

Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) has been given permission to join the worker's employment proceedings, which challenges an earlier decision of the Employment Relations Authority.

The Employment Court chief judge Christina Inglis said in a just-released interlocutory judgment that it raises relatively novel and developing issues within the employment law context.

"It was for this reason that I considered it appropriate to draw the proceedings to the attention of Te Hunga Rōia Māori o Aotearoa, the Attorney-General, the Council of Trade Unions, Business New Zealand, the Human Rights Commission and the New Zealand Law Society."

Te Hunga Rōia Māori o Aotearoa sought permission to enter into the case on the basis it has an interest in the development of Māori legal issues, including the interplay between tikanga and western law, and that the issues raised by these proceedings are of significance to its members.

To act in accordance with tikanga is to behave in a way that is culturally proper or appropriate.

Te Hunga Rōia Māori o Aotearoa is a voluntary organisation made up of lawyers who donate their time to causes.

Co-president Baden Vertongen told Open Justice the court's decision raises important issues about the place of tikanga in the employment context, and what it means for employers governed by principles of tikanga to live up to them.

The plaintiff, whose name and identifying details are suppressed, was a public sector employee who was dismissed for failing to get vaccinated against Covid-19.

The Māori Law Society's application to intervene was made in the context of a fresh challenge to an earlier decision by the ERA.

The claim by Te Hunga Rōia Māori o Aotearoa was based on what it said was the employer's failure to act in accordance with its own whanonga pono (values) and in accordance with other tikanga principles relevant to the employment relationship between the parties.

Judge Inglis said it was appropriate that the application seeking leave to intervene was granted, with regard to the matters and their likely broader impact.

Te Hunga Rōia Māori o Aotearoa will now be given all relevant documents, it may file and serve written submissions and may appear by counsel at the hearing, but not call evidence.