Here to Stay

Migrants in the workforce bring with them great opportunities and challenges

New Zealanders are no strangers to multicultural workplaces. As a country of immigrants, our workplaces have always contained diversity. This diversity is recognised and protected in the law, with the Human Rights Act 1993 and the Employment Relations Act 2000 protecting against discrimination in the workplace on the grounds of (among other things) race, colour, or ethnic origins.

Although we benefit as a country from the skills and talents of overseas immigrants, a multicultural workforce brings its own challenges. Bullying against those of a different race or culture, discrimination, language barriers, cultural differences – how should employers deal with the issues that arise?

There is no magic formula. Problems that arise need to be dealt with both within the cultural context and the obligations imposed by law on the employer. Along with the anti-discrimination provisions, these include the obligation to provide a safe workplace and to act in good faith.

Lost in translation
On a practical level, the fact that workers speak different languages can cause difficulties for employers. Many people feel uncomfortable when others use a different language around them. Employers may consider that this leads to division in the workplace, and could compromise safety. They can feel a loss of control in their workplace when they can’t understand what is being said around them. Moreover, bullying can thrive in a situation where the boss doesn’t know what is really going on.
Is an English-only policy the answer? Some employers think so, on the assumption that a universal language will harmonise the workplace and prevent employees using language to exclude others.

Such policies have attracted negative media attention in the past, however, on the basis that they appear discriminatory. As noted above, the Human Rights Act 1993 prohibits discrimination (or treating less favourably) employees because of their race or their ethnic or national origins.

The Human Rights Commission has published guidelines on the subject of English-only policies . The Commission notes that it is hard to separate a person’s language from their ethnicity or national origins, so deciding to stop employees using their first language may amount to unlawful discrimination. If there are valid reasons for requiring one language only to be used, however, (such as health and safety reasons) then requiring this may not be discriminatory. It would be hard to justify, however, requiring employees to use, say, only English during their break times.

Cultural bullying

Another politically charged issue is cross-cultural bullying. Different cultural groups within organisations can bully and treat other groups differently, or favour their own group. This is an issue, although sensitive, that needs to be tackled. Whatever the excuse for it, bullying can be seriously detrimental to employees’ wellbeing and productivity and, left unchecked, can lead to a breach by the employer to provide a safe workplace, exposing the employer to personal grievance claims, not to mention the human cost.

Allegations of bullying need to be investigated and acted upon, if bullying is found. If established, bullying can be grounds for dismissal, provided the employer acts, at all times, in relation to the dismissal, as a fair and reasonable employer could act.

Holiday … Celebrate

Another issue, which the multicultural worksite throws up, is the differing holiday traditions between different cultural groups. Many immigrants do not come from Christian countries, and so do not celebrate our traditional holidays such as Easter and Christmas. How can their needs be served?

A tool to assist may be found in a recent amendment to the Holidays Act 2003. This allows employers and employees to agree to transfer the observance of a public holiday to another working day.

Such a transfer must be agreed in writing, identifying which public holiday is to be transferred, and to which day it is to be transferred. This can either be an agreement, which is ad hoc, i.e., relates to a particular holiday one year, or can relate to the same holiday every year. An employer is not required to agree to an employee’s request, nor required to give reasons for declining. The good faith obligations of the Employment Relations Act 2000 apply, however, and these require an employer to be responsive and communicative with employees. This would require employers, therefore, to respond within a reasonable timeframe, and provide the reason for declining if requested by the employee.

In summary

The upshot? Some key points:
1. Celebrate diversity in your workplace. The Human Rights Commission reports research, which shows that workplaces positively addressing issues of diversity are more likely to have increased staff morale, reduced staff turnover and improved workplace productivity. In short, it’s better for your bottom line.
2. Be aware that issues may arise, and they need to be addressed.

3. Know your obligations under the Human Rights Act 1993 and Employment Relations Act 2000 not to treat employees differently due to their race, or ethnic or national origins.

4. Be aware of your obligations to act in good faith and provide a safe workplace.

This article gives a general overview of the topics covered and is not intended to be relied upon as legal advice.

Shelley Eden
www.shieffangland.co.nz