The employment tribunal held that the dismissals breached the Act in that the w nanga was simply a decision making body, that it had not clearly put the idea of dismissal to the employees and that silence from the employees was not sufficient to indicate agreement. The appellants asked the court to take account of the institution of w nanga as a valid custom and a part of the factual situation. Wh nau values followed strict M ori tikanga, making the employment setting exceptional in a cultural context. Operation of the custom in this case meant that the terminations were consensual with the result that neither employee had in law been dismissed. The paramount consideration is whether the process was fair.
Customary practice is an important ingredient in what occurred.
The customary wh nau environment may not exclude or preclude questions about whether that custom produced a termination which was fair. W nanga is no more than a process like any other which an employer may choose when considering termination of employment. However custom cannot be used as a shield to prevent the court considering if actions taken were fair. In this case it was simply a matter of fact that the employees did not consent to termination at the w nanga since that was not discussed. In another case with different facts a court might reach a different conclusion, which could include reluctant acceptance of the will of the majority of the wh nau, which is M ori custom.