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Iorns Magallanes, Catherine J --- "Employers' Duties of Cultural Sensitivity: Good Health Wanganui v Burberry" [2003] IndigLawB 18; (2003) 5(23) Indigenous Law Bulletin 16

Employers’ Duties of Cultural Sensitivity:

Good Health Wanganui v Burberry

Good Health Wanganui v Burberry
Unreported decision of the Employment Court, Wellington, New Zealand
Judge Shaw
10 December 2002

by Catherine J Iorns Magallanes

A recent decision of the New Zealand Employment Court received a large amount of negative media publicity. The case concerned the unjustified dismissal of a Maori employee and involved issues of cultural sensitivity. The media publicity was problematic because it focused on a side comment of the judge, not the main decision. The media clearly sided with (non-Maori) employers and produced a reaction that was out of proportion to the decision, suggesting that here was ‘yet another’ example of the law on Maori issues being out of touch with ‘reality’, and ‘ahead’ of mainstream public opinion. While the employer did lose the case and the Maori ex-employee did win, the case was not remarkable in its statement of a legal standard. It is worthy of note because of its application to the facts in an institution attempting to become bicultural.

Facts of the case

Mrs Burberry had been a Maori mental health worker for Good Health Wanganui (or its predecessors) for 20 years. A primary purpose of her position was to provide Maori cultural expertise in relation to mental health patients. She reported operationally to the clinical team leader, Mr Kinsey, and ‘culturally/professionally’ both to her community elders and to the head of the Maori Mental Health Unit, Mr Firmin. Firmin was regarded as the reference point within Good Health Wanganui (‘GHW’) for all Maori cultural matters.

For 17 years Burberry had taken approved annual leave to attend a major Maori cultural festival, where she was responsible for the provision of health services to attendees. Kinsey knew that GHW normally approved this leave. In February 2001, upon return from a work related conference, Burberry applied for three days annual leave to attend the festival. The application was made only ten days before the festival instead of the required 14 days. Burberry knew it was late but also that her colleagues knew that she usually took this leave.

Mr Kinsey did not consider the leave application until prompted by Burberry two days before the festival. On the day before the festival he denied her leave for the stated reason: ‘not long returned from a week’s leave’. Burberry had by then already committed herself to going, had told her clients and had organised their care in her absence. She pleaded for his reconsideration on more than one occasion, commenting that it was culturally necessary to go, especially for her to keep her word. Kinsey still denied permission. As she was unable to organise a backup for her role at the festival, Burberry went anyway.

Taking denied leave is included as ‘serious misconduct’ in Burberry’s employment code of conduct, for which disciplinary action could be taken. Disciplinary procedures were required by the code to follow several principles, including:

Non-punitiveness:
The purpose of disciplinary action is to prevent recurrence. It must not be to exact revenge or inflict punishment for its [sic] own sake.

Fairness:
The degree of discipline must be related to the nature of the employee’s work record, the circumstances, and any extenuating circumstances. The procedure used in each case must be fair and follow the principles of natural justice.

Six months earlier Burberry had gone on leave without prior authorisation (her leave application was submitted too late to approve before her leave dates). After discussion with Mr Kinsey upon her return, she accepted that she would not be paid for that leave, but no formal warning was given to her.

Upon her return from the festival Burberry was told that she would have to meet Kinsey later that day about her actions. At that stage there was no suggestion that disciplinary action would be taken and, consistent with the earlier incident, she was not expecting any. Five minutes before the scheduled meeting time she was given a letter which stated that Kinsey’s supervisor would also be present and that a possible outcome was dismissal. Burberry hurriedly organised two colleagues to attend with her in support. In the meeting Kinsey cited different reasons for his disapproval of leave, those being the care of her clients. Burberry stressed the cultural importance of attending the festival and of keeping her word that she would attend.

The next day after consultation with the human resources manager but not with Firmin, GHW decided to dismiss Burberry. She was called to a meeting at 5pm but could not arrange any support persons at that time. She was told of her instant dismissal for breaching the code of conduct and taken to her desk to remove her personal possessions. After the dismissal she had to take medication for depression caused by the shame and embarrassment of dismissal, and had been unable to work since.

Burberry complained to the Employment Relations Authority, which found that GHW had not established that there were good reasons for dismissal, but that Burberry had contributed 50 percent to the situation. Burberry was awarded three months loss of wages and damages for stress and humiliation. Both parties appealed to the Employment Court.

Employment Court’s Findings

The judge denied GHW’s appeal and upheld Burberry’s appeal. A key preliminary step was the judge’s findings in relation to the facts. Many of the facts were disputed by the parties, with there being different versions of the discussions held before and after the leave. This is significant because whether a fair procedure was followed and whether dismissal was justified typically turns on precisely what was said to whom and when. In this case the judge found for Burberry: ‘Mr Kinsey’s memory of these events was less than perfect. I do not doubt his credibility but find that Mrs Burberry’s evidence is more reliable’. While this should not be significant, that a court would find against a male professional in favour of a Maori nurse on an issue of recollection and credibility is a quiet victory in its own right. It is the key in employment cases such as this because answering the primary legal question (ie whether the dismissal was unjustified) turns on the facts.

The court first found that the decision to refuse leave was unreasonable and unfair because:

(a) Kinsey took too long to decide;
(b) He did not specify his later stated concern (ie about the care of her patients while on leave), nor did he inquire into whether this was satisfied;
(c) Kinsey’s real motivation for the leave refusal was the desire to establish his authority over his staff, which was unreasonable to impose only the day before the expected leave; and
(d) Kinsey ignored the cultural issues surrounding both Burberry’s historical taking of the leave and her promises to attend this festival.

The court next found that Burberry’s decision to take the leave anyway was reasonable in the circumstances because:

(a) It was reasonable for her to have expected that the leave would be approved;
(b) She tried both to get others to perform her festival duties and to change Kinsey’s mind after notification of the denial; and
(c) She ensured that her clients were cared for while she was away.

The court found that the dismissal process was unfair because:

(a) Notice of the significance of the meeting was inadequate, resulting in her inadequate preparation;
(b) It proceeded on the assumption that the denial of leave was reasonable; and
(c) Cultural issues were ignored both at the meetings and in consideration of the action to be taken.

Therefore, the overall conclusion was that Burberry’s dismissal was unreasonable and unlawful because:

(a) The refusal of leave was unlawful (as above);
(b) The process of decision making was unlawful (as above);
(c) It was out of proportion both to Burberry’s actions and to her long work record; and
(d) It was against the code of conduct’s requirement that any disciplinary action be non-punitive and designed to prevent recurrence.

The Court awarded Burberry six months loss of wages plus $15,000 for stress and humiliation.

The case is not significant in respect of the primary legal issues: dismissals must be fair, both in terms of substance and procedure, and what constitutes fairness is well defined in New Zealand case law. But it is the application to this particular set of facts that makes it worthy of comment. A factor in the decision that the dismissal was unfair in this case was the handling of Maori cultural issues. GHW was roundly criticised for ignoring and mishandling the Maori cultural considerations that arose, both in considering the leave application and the disciplinary procedures. The judge criticised GHW for assuming that the onus was on Mrs Burberry to ask for a more culturally appropriate procedure to deal with the disciplinary action. The onus here was instead on the employer:

Mr Kinsey and Mr Barrass were both genuinely surprised that cultural issues had been raised after the event and that Mrs Burberry had not asked for cultural support or procedures during the interview. My perception of the reasons for this is that while Good Health Wanganui makes provision for Maori issues, particularly by establishing [the Maori Mental Health Unit], the issues are perceived as an annexure rather than an integrated part of the culture of Good Health Wanganui. Although Mrs Burberry was obviously Maori and was specifically employed to deal with cultural issues in relation to mental health patients this was not sufficient to alert Mr Barrass and Mr Kinsey to the fact that this meeting could have been and should have been handled in a different way. There were references in the evidence to Maori employees being welcomed to Good Health Wanganui by powhiri [Maori welcoming ceremony]. The question must be asked why, having been granted that respect on their arrival, they could not be afforded the dignity of a poroporoaki or farewell. If it is appropriate at the beginning of employment it should be appropriate at the end even when circumstances are difficult.[1]

.... it is simplistic and artificial for Good Health Wanganui to attempt to categorise some issues as ‘cultural or Maori’ and others not. The fact that an employee is Maori and is working in a Maori setting should have been sufficient to alert them to a need for an appropriate procedure. The onus should not have been on Mrs Burberry to assert her mana Maori or plead for her cultural identity to be recognised.[2]

Perhaps unsurprisingly, it is the last two sentences of paragraph 57, regarding Maori farewell ceremonies, which have been quoted extensively in the media. The judge has been roundly criticised for being unrealistic in her expectations of parties in a dismissal situation. But such criticism of the one example misses the overall thrust of the judgment and the principle it is based on. The case requires employers to not just pay lip-service to Maori culture by establishing cultural advisory units (or similar). Employers must respond appropriately to the cultural issues raised in any employment situation. This can be a procedural matter such as referral to the right person for advice on decisions. For example, in this case, consultation with Mr Firmin, the head of the Maori Mental Health Unit, and not just the head of Human Resources. This may also be a substantive matter such as the granting of leave for cultural reasons, or the ability to recognise when a cultural issue is raised. In this case so many mistakes were made, both procedurally and substantively, that the dismissal was held to be unfair.

I suggest that this case is helpful for all employers and employees. It provides an example of what can go wrong when employees are assumed to have the same cultural values as those of the employer. It can thus serve as an example of the benefits, in terms of more productive work relations, of better understanding of each other and appropriately responding to employees as people. Perhaps it can be used as an example for employers elsewhere to consider what sensitivity to Indigenous culture might entail in their workplace.

Catherine J Iorns Magallanes is a senior lecturer in law at the Victoria University of Wellington.


[1] Good Health Wanganui v Burberry (Unreported, New Zealand Employment Court, Judge Shaw, 10 December 2002) [57].

[2] Ibid [58].


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