Judge slams way Maori worker fired

By MATHEW DEARNALEY

A judge has ruled that Maori workers welcomed with powhiri ceremonies should be farewelled with similar decorum - even when sacked.

Judge Coral Shaw caned the Good Health Wanganui health board in the Employment Court for treating cultural issues as a mere "annexure", despite setting up a Maori mental health unit and greeting recruits with powhiri.

"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," she said in ruling that mental health worker Heather Burberry was dismissed unjustifiably.

"If it is appropriate at the beginning of employment, it should be appropriate at the end, even when the circumstances are difficult."

The judge made her comments in awarding $15,000 compensation and six months' lost wages to Mrs Burberry, who was sacked after 20 years' service for taking unauthorised annual leave to attend a kapa haka cultural festival.

Judge Shaw cited the concept of whakama - a reluctance to speak from shyness or shame - for Mrs Burberry's failure to assert her mana or plead for Good Health Wanganui managers to recognise her cultural identity when deciding to fire her.

"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," she said.

Far from being farewelled with dignity, Mrs Burberry complained of being marched to her office to pack up and leave, causing what her lawyer said was intense shame, damaging her psychologically and emotionally.

Mrs Burberry told the court that she was seeing a psychiatrist for depression and had been receiving a sickness benefit because she was unable to work under the impact of her dismissal.

Judge Shaw's award was substantially higher than the $2250 compensation and 6 1/2 weeks' lost wages ordered by the Employment Relations Authority, which held Mrs Burberry 50 per cent responsible for her dismissal.

The judge cleared her of any blame, because of what she deemed "the fundamental unreasonableness, unfairness and therefore unlawfulness" of clinical team leader Ron Kinsey's refusal to grant her leave.

Mrs Burberry told the court she had always, in the 17 previous years, been granted leave to attend the kapa haka festival, where she was responsible for providing first aid and other voluntary services to Maori.

In 2001, however, Mr Kinsey withheld approval on the basis that she had applied for it too late and that she had only recently returned from a week away at a youth leaders' conference.

Mr Kinsey told the court he did not take any specific cultural advice over the dismissal, because it was all about the disobedience of a lawful instruction and he saw no need.

He said he had to be satisfied that all Mrs Burberry's mental health "clients" had been seen after her previous leave, and were in good condition.

But Judge Shaw found he was aware that Mrs Burberry had arranged for a colleague to cover for her absence, and that he did not inquire about the state of those in her care before reaffirming his decision.

Mrs Burberry agreed under cross-examination that she did not tell Mr Kinsey that the festival was a cultural event, but said she kept trying to explain to him that Maori custom required her to keep her word to others that she would attend.

"It did not really matter what I said to Ron - he wasn't listening," she told the court.

"I was continually having to defend my role, my culture, my very being."

Judge Shaw said Mrs Burberry took a very serious step on the face of it in attending the festival despite Mr Kinsey's refusal.

But she said this was not done in a cavalier or unconsidered way, as was demonstrated by Mrs Burberry's return to work on the first day of the festival for one last plea to attend the festival.

The judge said Mr Kinsey had every right to expect his employees to apply for leave in timely fashion, so as not to jeopardise services to vulnerable patients.

But he should not have left it until the day before the festival to tell Mrs Burberry he had changed the rules, and the consequences for her were out of proportion to her long work record.