Posted on: May 31, 2013
You might remember back in 2011, when the Spit Roast Catering Company (SPCC) won the case over the right to cover up a Maori worker’s tattoo. Claire Haupini was employed to help set up such functions, serve at them, and tidy up afterwards, effectively fulfilling a “frontline” role she, along with other staff, had direct contact with the company’s clients.
Ms Haupini, who was of Maori and European descent, had a moko on her left forearm. The design represented her, her children and her husband and also evoked her iwi Whakatoa, as well as Ngapuhi where her grandparents were laid to rest. When she first started working for SRCC, she was issued with a standard black shirt whose sleeves covered all but the tip of the moko. Subsequently, the SRCC introduced a new shirt with a shorter sleeve that revealed the entire moko.
After the introduction of the new shirt, Ms Haupini worked at least three shifts without incident. However, on 17 May 2010, she was employed for a function described as being at the top end of the kinds of functions for which the defendant catered. Most of those employed that day wore the shorter-sleeved shirts, although one or two might have been wearing the longer-sleeved shirt as a matter of preference. Before the vans left to go to the function venue, Mr Peet, a director of the SRCC, noticed the moko. He considered that company staff should not be displaying what he described as a large prominent tattoo at the function in question and asked the company’s Operations Manager Mr Brough to discuss the matter with Ms Haupini and see if she would mind wearing the longer-sleeved shirt.
Mr Brough took Ms Haupini aside and asked her if she would mind wearing the longer-sleeved shirt to cover the moko at the function. The plaintiff saw this as an instruction rather than as a request and as treating her differently from the other employees. However, she changed into the other shirt despite being very upset by what had occurred.
Before Ms Haupini left work that day, Mr Brough asked her if she wanted to work again in the coming weekend. She declined because she was still angry and upset but she did not tell Mr Brough the reason why she did so. Both Mr Peet and Mr Brough were at that time unaware of either the cultural significance of the moko to Ms Haupini or her feelings about what had occurred before the function. Her complaint was that she was singled out when she was asked to wear the longer-sleeved shirt.
Ms Haupini claimed that:
- She had been directly discriminated against in terms of section 22(1)(b) and (c) of the Human Rights Act 1993 upon the grounds set out in section 21(1)(f) (race) and/or (g) (ethnic or national origins), or
- The SRCC’s requirement that she should cover her moko was an act of indirect discrimination (section 65) in the sense that any rule against visible tattoos had the effect of treating wearers of ta moko unfavourably on the grounds of their race and/or ethnic origins.
However, both her claims of direct discrimination and indirect discrimination were not established.
SRCC’s owner Graham Peet sought costs against the Human Rights Commission for wasting taxpayer money to pursue an unnecessary case, which cost him about more than $60,000 to fight. The tribunal has now awarded SRCC costs of $15,000, to be paid by the Director of Human Rights Proceedings. Tribunal chairman Roy Hindle earlier said the questions in the case lay at an intersection between significant cultural expectations and the reasonable concerns of an employer to be able to manage the appearance of its staff working in a “frontline” role.
Due to the similarities, SRCC’s win demonstrates that Air New Zealand would have a strong case if Claire Nathan, who was recently refused a job with the airline because of her forearm tattoo, decided to make a complaint to the Human Rights Commission. Let’s watch this space to see if this case goes any further…
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