Prominent employment lawyer Jennifer Mills (left) says the successful Employment Court case bought by John Faitala and an ex-work colleague highlights how employers have to respect cultural values. New Zealand Herald composite photo
Employers must be increasingly mindful of providing “culturally responsive workplace practices” - including prayer spaces and or hui-based consultation - according to a prominent employment lawyer.
The issue of cultural ethics in the workplace has been thrust into the spotlight after two workers were awarded tens of thousands of dollars in compensation after a court ruled their former employer had failed to uphold Pasifika values.
Aucklanders John Faitala and Vahanoa Vea were awarded $30,000 and $45,000 respectively for hurt and humiliation related to being made redundant by the Pacific Business Trust.
Faitala also received six months of lost wages, and Vea 12 months.
Among their complaints was the shame they felt after being told by the trust via email that they had lost their jobs.
Faitala described the process as “alien” and devoid of the social norms he had come to expect as a Pacific Islander.
The case has sparked debate about cultural values in the workplace - and questions from employers about how to know what they are and how to uphold them.
Auckland-based employment lawyer Jennifer Mills told the Herald the courts were increasingly “recognising the evolution of society by acknowledging cultural values”.
And she said there were straightforward steps bosses could implement in the workplace to ensure all cultures felt respected and valued.
“From a practical perspective, employers can take steps to ensure compliance and inclusivity by implementing culturally responsive workplace practices [like] prayer spaces, or hui-based consultation,” said Mills, who is director of Jennifer Mills & Associates.
“Treating employees in a way they like to be treated ... helps with commitment and helps with recruitment.”
The case brought by Faitala and Vea after being made redundant by The Pacific Island Business Development Trust, which runs the Pacific Business Trust, was heard in the Employment Court in Auckland before Judge Merepaia King.
She said during its restructuring, the organisation failed to comply with its obligation to adhere to Pasifika values, which were specifically incorporated into its workers’ employment agreements.
Among the pair’s complaints was the humiliation and shame they felt after receiving termination letters via email, describing it as a slap in the face and not the Pasifika way of doing things, which would have involved face-to-face meetings over a cup of tea.
The “Pasifika values” referred to by King included what the trust later accepted were five pillars of the Pasifika community: respect, aiga (family), community, reciprocity and religion or spirituality.
“The trust’s failure to follow through with its own undertakings ... are clear examples of conduct at odds with Pasifika values of reciprocity, respect and care,” King said in her decision.
“The trust’s failures were unfair. The plaintiffs were Pasifika employees working in a Pasifika organisation - selected for their cultural capability and understanding - in an organisation led by Pasifika values,” the judge said.
Mills said it was a case other employers could learn from but not be afraid of.
“The key issue is how cultural values intersect with an employer’s statutory obligations ... particularly of good faith,” she said.
“An employer’s good faith obligations require parties to an employment relationship to deal with each other honestly, constructively and not in a misleading or deceptive way.”
Mills said employers still had to be mindful of cultural values even if those values were specifically spelled out in employment agreements.
That included when a staff member requested their cultural values to be considered.
“An employer ought to do that as part of its good faith obligation in being active, constructive and communicative,” Mills said.
“That might include particular ways of communication [or] it might include additional meetings as part of consultations.”
And she said “irrespective” of any cultural values, all employers were expected to “treat workers with respect and keep their employees’ dignity”.
“Many employers are very good,” she said.
“But ... I’ve seen examples of employers not complying with basic obligations of dignity and treating employees with respect when they’re making them redundant.
“It’s important to note that tikanga Māori [cultural values] is already recognised within New Zealand’s legal landscape in certain contexts - although it is not expressly embedded within the good faith provisions themselves.”
Mills added if an employer was known to be someone who looked after their staff, and valued them and their values, “then ultimately, you’re going to have a far happier and far more productive workforce”.
Vaimoana Mase is the Pasifika editor for the Herald’s Talanoa section, sharing stories from the Pacific community. She won junior reporter of the year at the then Qantas Media Awards in 2010 and won the best opinion writing award at the 2023 Voyager Media Awards.