Examining the legal definition of “brother” for the purposes of bereavement leave

A steel worker who was told by his employer he was unable to take three days bereavement leave for his whāngai, or foster brother, as he did not meet the legal definition of “brother”, has successfully argued his case in the Employment Relations Authority (Authority) in Minhinnick v New Zealand Steel Limited [[2016] NZERA Auckland 335; 28/09/16; V Campbell].

Awa Minhinnick claimed he was disadvantaged by New Zealand Steel Limited (NZ Steel) when it refused to grant Mr Minhinnick three days’ bereavement leave to attend the funeral of his whāngai brother, Mr Kaihau. Mr Minhinnick took three days off work and NZ Steel treated one of those days as bereavement leave and the other two as annual leave.

“Whāngai” is a customary Māori practice where a child is raised by someone other than their birth parents – usually a relative. Mr Kaihau’s biological father was the biological brother of Mr Minhinnick’s mother.

Mr Kaihau came to live with Mr Minhinnick’s family five years before Mr Minhinnick was born and was raised as a son and brother from that time. He was a beloved family member, cared for his elders and even had his name placed on their father’s headstone with those of his brothers and sisters, including Mr Minhinnick.
The issue for the Authority was whether a whāngai relationship qualified as being an “immediate relative” under the collective agreement.

Holidays Act 2003

The collective agreement defined “immediate relative” as including a “brother” and incorporated the provisions of the Holidays Act 2003. Neither the collective agreement, nor the Holidays Act 2003 defines “brother”.

NZ Steel argued Mr Kaihau did not meet the legal definition of “brother” for the purposes of the Holidays Act 2003. In coming to this conclusion, NZ Steel referred to section 19 of the Adoption Act 1955 which states that “no adoption in accordance with Maori custom shall be of any force or effect”. The Courts have given this provision a strict interpretation in determining whether a whāngai has any legal standing in relation to his or her customary parent’s estate under the Family Protection Act 1955.

NZ Steel submitted that the law may recognise whāngai adoptions in some circumstances, but this must be set out in statute as an exception to section 19 of the Adoption Act 1955. As there is no such exception in the Holidays Act 2003, NZ Steel argued it was not required to recognise Mr Minhinnick’s whāngai relationship with Mr Kaihau.

Collective agreement

NZ Steel argued for a technically legal approach to the interpretation of “brother” under the collective agreement.

The Authority approached the interpretation of clause 32.4 of the collective by considering the natural and ordinary meaning of the words, while taking into consideration the wider context. The Oxford dictionary defines relative as being “a person connected by blood or marriage” and “brother” as a “man or boy in relation to other sons and daughters of his parents”.

The Authority was satisfied that the word “brother” should be interpreted in a way that recognised the relationship of a whāngai brother and concluded that Mr Kaihau was an immediate relative of Mr Minhinnick for the purposes of clause 34.2 of the collective agreement.

NZ Steel’s exercise of its discretion to refuse Mr Minhinnick’s application for bereavement leave was not an action a fair and reasonable employer could have taken in all the circumstances.

To recognise his distress, the Authority awarded Mr Minhinnick $1000.00 under section 123(1)(c)(i) of the Employment Relations Act 2000. It also ordered NZ Steel to adjust Mr Minhinnick’s leave records to record that he took three days’ bereavement leave and the annual leave used at the time was reinstated.

While this case was determined on the wording of the collective agreement in question, it highlights that the Courts may consider in future extending those people listed in the Holidays Act 2003 for which bereavement leave can be granted to include cultural interpretations of the word and its meaning. An employer should therefore act in good faith and with an open mind when considering bereavement leave for employees with special circumstances.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Julia Hurren, Jackie Behrnes, Siobhan Rastrick, Gwen Drewitt; Holly Swadel
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan, Daniel Kruger, Lavinia Shanks, Winnie Chen, Caroline Edwards, Ken Huang
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Julia Hurren,  Fiona McMillan, Gwen Drewitt