Speeches and Papers
RESOLVING GRIEVANCES IN A GRIEVING WORLD
Steve Mark
NSW Legal Services Commissioner
11th Women, Management and Industrial Relations Conference
Hilton Hotel, Sydney
21 July 1999
At the risk of being categorised as a millennialist, I would like to commence my short paper with reference to the approach of the millennium, and a short “looking backwards” to the 1890S. I do this to support my basic premise that the western industrialised world is in the process of a major “sea-change” of thinking about work and social, economic and environmental sustainability. This paradigm shift is and will affect us all deeply and, in my view, lies at the heart of any discussion about resolving grievances in the workplace, the subject which I was asked to address today.
In 1890 a man named Edward Bellamy wrote a slim volume called “Looking Backwards”. This was very much a book for its time. The last decade of the 19th Century saw much social optimism in the world, even in the face of depression caused by a collapse in the banking industry. This optimism manifested in the numerous utopian movements that sprang up around the world, the establishment of several of our more well-known channelled religions, mass movements in support of universal suffrage and, some say, the birth of science fiction.
At any rate, Bellamy wrote about an 1890’s Bostonian who through a rather thin artifice is knocked unconscious only to wake up in the year 2500 and then spends the rest of the book describing his utopian vision as found in that far distant time.
I loved the book when I first read it many years ago, and still love it today. It is a rather naive attempt at extolling the virtues of a society not based on economic greed or status or built on material possessions. It had citizens working in jobs which they enjoyed and which attracted respect, not for the amount of money they were paid (As all citizens were paid the same amount), but on the value that the individual contributed to society. This was perhaps the birth of the modern concept of social capital, as described by Eva Cox.
In the 1990s we see examples of the creation of new religions (or cults), philosophies and belief structures in many parts of the world which attempt to give meaning to life. This drive for meaning is being felt by individuals and local communities under the challenge of globalisation, increasing concentration of wealth in the hands of the few and the growing realisation that without economic and environmental sustainability our species may well be doomed.
So I see many comparables between the 1890s and the 1990s, but optimism for the future seems to have deteriorated in the interval.
However, the future is not all dark. I believe that we are in the midst of a major change which is affecting the entire industrialised world and involves the questioning of many of the underlying premises upon which our society seems to depend, at least in the post World War II era.
Increasing numbers of people are questioning the values that have led to the reversing of the trend that commenced during the industrial revolution and culminated in the early part of this century with the introduction of the eight hour day, which as we now know is back up to similar levels (ten to twelve and more hours per day) as existed at the beginning of the industrial revolution. And this turn-around has occurred in only a few generations.
We are also disturbed at the values which are leading to the rapid destruction of our environment and are beginning to see the inter-relatedness between those values and a range of other issues such as the impact of our consumer society, the desire to improve our health and lifestyle and the need to support local communities in the face of the maelstrom of globalisation.
And how are we dealing with conflict in the 1990s? This may appear a rhetorical question.
However, I think it is still possible to say that it is becoming less and less likely for any aggressor in our society to gain wide public support. Again, we need a quick look at recent history to understand what I mean by that comment.
Prior to the First World War, warfare was generally considered a noble occupation, at least for men. The warrior poet as a type of Renaissance man was a highly laudable position in society. Then with the First World War we saw a major change. Not only did the horrors of trench warfare and the millions that were killed turn the stomach of the world, but we also saw for the first time high numbers of civilian causalities as a result of the war, fifteen percent.
By the Second World War the percentage of civilian casualties had risen to fifty percent and by Vietnam it had gotten to almost 90 percent. The events in Cambodia, Rwanda, the Sudan and Kosovo have driven the percentage of civilian dead even higher.
The impact of this horrific increase in civilian carnage has not gone unnoticed in our military institutions. In 1947 the United States War Department saw the writing on the wall and changed its name to the Defence Department. Just about every other nation in the world has followed the United States and changed the terminology used in relation to their military. It is no longer acceptable to be the aggressor in war, we all now only defend. This has heralded a whole new era of passive aggression, and while it does not seem to have reduced the number of people killed in the various “non-wars” which are presently occurring, it is changing the way we see global conflict.
We have seen a change in the acceptability, if it can be called that, of aggression and full scale war. To many of us baby boomers, the fact that we have avoided nuclear holocaust is absolutely amazing. So may be things are changing.
This is all very well when looking at the macro, but what do we see in the micro, and in particular in the workplace?
When addressing the concept of grievances within the workplace, one almost inevitably confronts two major issues:
- Power and its misuse
- Communication and its failure
Tackling power and its misuse from a position of power is tricky. One runs the risk of entrenching the negative perceptions of winners and losers. This stands equally for regulatory authorities as it does for bosses that attempt to alter behaviour by simply saying “thou shalt not ….” Rather than using adult educational strategies which build on the strengths of employees and inspire and empower them to achieve their full potential.
While, we may be able to alter behaviour through imposing rules and regulation, the resultant “new society” that we hope will emerge seems to be very slow in coming. It has been said that it can take up to two years to fundamentally change behaviour, ten years to change a belief and twenty years to change a value system.
Power is also inextricably linked to position. This is as true in relation to the way the patriarchy functions to systemically disadvantage women as it is for managers in our business and industries. How well equipped are our leaders and managers to handle the power which attaches to the positions they have attained?
The ability to communicate is quite obviously an essential element in grievance handling, and ensuring a positive motivated workplace. Unfortunately, communication is often poorly understood by the very people that think they are good at it.
Taking lawyers for example, most believe that they are good communicators because they are articulate. It is a pity that communication also requires not only the ability to listen, but the ability to empathise.
Accordingly, those involved in grievance handling, need to be good communicators. But, how much training do we provide in our organisations or indeed in our community towards positive communication skills? And if communication requires empathy, how do we educate people to be able to put themselves in the shoes of the other and understand their position?
Central to grievance handling and positive communication is the concept of trust. This is a word which pops up often in management texts, but is often skimmed over. While it is, in my view, beyond doubt that the most effective way to handle workplace grievances is to create an environment of trust within an organisation where problems can be dealt with as they arise, this can only occur where people have trust that they can voice their grievance.
On several occasions over the past few years I have had the opportunity to conduct several small and informal surveys about how staff view the concept of trust - what the word meant to them. To my surprise, the vast majority of people who have been asked to describe what they mean by trust, define it in terms of feelings of safety and whether or not they will be attacked or knifed in the back. They talk of predictability and reliability, but almost always in relation to the actions of others. Hardly ever do people talk about trust in terms of their own behaviour, openness and honesty. A trusting environment must be one where people feel free to raise issues, come up with ideas, discuss potential hazards as well as raise personal or organisational problems. Such an environment allows individuals the power of having a point of view and a feeling of involvement within the community of their organisation.
Many of you would know that I had the privilege of being the President of the Anti-Discrimination Board from 1988 to 1994.
During this time the Board handled thousands of complaints of discrimination, conciliating a vast majority of them, referred a small but significant percentage to the equal opportunity tribunal for judicial determination and ran programs of education within the community and business sector on individual rights and how to avoid discrimination.
Since 1994, I have been the NSW Legal Services Commissioner where my Office takes all complaints against solicitors, barristers and licensed conveyancers. We attempt to resolve those complaints that the legislation calls ‘consumer disputes’, and which would not result in disciplinary action due to a breach of professional conduct. We also investigate complaints either within the Office or on referral to the Law Society, the Bar Association or the Department of Fair Trading, which do contain allegations of serious misconduct.
So, counting my time at the Anti-Discrimination Board, I have now been directly involved in the investigation of complaints and dispute resolution for fifteen years.
During those fifteen years I have learnt much about complaint handling and dispute resolution as well as about our society in general and have observed many changes.
When I first came to Australia in 1970 my impression of Australia was of the ‘she’ll be right mate” approach to life where most people I met were incredibly laid back, while still having significant degrees of sexism, racism and all the other ‘isms’ endemic in the western world, but with a particularly Australian flavour.
We talked about the “whingeing poms” and were unlikely to return a bottle of wine in a restaurant (even though it most likely was Asty Spumante, Ben Ean moselle, star wine or some other hideous denigration of a grape) let alone complain about the way we were treated at work or by members of the legal profession.
Then came the significant demonstrations against the Vietnam War, the Springbok Tours, the green bans by the Builders Labourers Federation, the dismissal, the increasing awareness of discrimination and the stronger voice from those in our migrant communities leading, to a reassessment of the Australian cringe and redefinition of Australian identity.
A survey in 1995 showed that Australians are now complaining about just about everything at a rate greater than any other country on the face of the earth. A recent survey also shows that New South Wales is the second most litigious society in the world after New York, at least in terms of medical negligence.
1999 marks thirty-five years since the first civil rights legislation appeared in the United States. The Year 2000 will mark the twenty-fifth anniversary of anti-discrimination laws in Australia. All this legislation has been rights-based. This has meant that the philosophical focus of the legislation has been on encouraging individuals to be aware of their “rights” and provide the mechanisms to enforce those rights against employers, the government, service providers, lawyers etc.
Has such legislation ensured that women have achieved equal status? Equal pay? Has Aboriginal health been elevated above third world levels? Has discrimination on the basis of race or gender been removed from our education system? Are gay men and lesbians free to live their lives in the absence of hatred and discrimination? Do people with disabilities have access to transport, buildings and facilities, education and jobs? Have lawyers become friendly, communicative, helpful and nice?
Some yes, mostly no.
Rights-based laws cannot change people’s minds. They can only, by regulating behaviour, hopefully create an environment where certain types of behaviour are either unacceptable, uneconomic or unethical, and thereby discrimination, anti-social or unethical behaviour cannot thrive and withers, enabling the establishment of a new social order based on more positive values.
But as we have seen by looking back over the last twenty-five to thirty-five years, this “new society” is slow in arriving.
Individual complaints do not and cannot result in systemic change. While it is true that significant cases that get a great deal of coverage in the media may have a wider effect than just over the parties involved in the litigation, they are unlikely to create a societal change of mind by themselves.
Rights-based legislation has several fundamental limitations:
- It requires individuals to bring a complaint or action when the rights have been ignored, overridden or trammelled.
- Such a rights-based approach implies the requirement to exercise a right rather than recognising an inherent need or value.
The first and most obvious concern is that many individuals, particularly disadvantaged members of our community are either unable or unwilling to make a complaint or take an action where their rights are under threat. And indeed, philosophically speaking, why should they need to? I believe what is required is needs-based legislation which recognises basic human values which, if well defined and widely recognised in the community would give whole communities a role in demanding that the needs of its members be met.
This would better encourage communities to play a more active role than has been the case in the past in relation to protecting individuals in our society, as well as the environment within which we live. This in turn would support the inter-connectedness of the need for sustainability in environmental terms as well as economic and social terms.
This is not to say that rights-based legislation is ineffective or no longer plays a role in our society. However, I believe for our changing times we need fresh approaches to our perennial problems of achieving equity, justice and cohesion in our society. Perhaps an exploration of need or value based legislation by those currently working in the field and with greater wit than i, would find answers to these problems.
As Robert Theobald stated in his book “Reworking Success, New Communities at the Millennium, “…. The required success criteria for the twenty-first century are ecological integrity, effective decisionmaking, and social cohesion. These are progressively replacing current commitments to maximum economic growth, compulsive consumption and international competition”.
Economic rationalism seems to have been finally laid to rest, but several of its more nasty tenets seem to emerge from some that argue for competition policy, at least where that competition policy does not acknowledge social capital and values. As John Raulston Saul has stated: “If economists were doctors they would be snowed under with malpractice suits! What economists have suggested over the past fifty years has not worked. But that does not seem to matter because they are dealing with abstract arguments over form, rather than real arguments over content and results.”
And how does all of this relate back to the subject matter of grievance handling I hear you ask. My answer is twofold.
Firstly, as I have stated, good grievance handling requires an understanding of power relationships and avoidance of misuse of power. It also requires good communication skills which include the ability to listen and have empathy as well as just being articulate. And grievance handling is simply not even an issue where you do not have a culture of trust within an organisation. All of these elements require us to explore our values and foster organisational cultures based on positive social values.
Secondly, there are many signs that the entire western industrialised world is involved in a shift to make values the central element of business, political and social engagement. As Arnold Haitt, retired chairman of Striderite Corporation has said: “You cannot run a healthy company in an unhealthy society for long”.
So, accuse me of being a “new ager” but I believe that the new millennium is bringing with it a growing movement with a much stronger focus on values, spirituality and self-knowledge, and the role that these will play for the individual, corporation and society as a whole than has been the case for the past few hundred years at least.
This gives me optimism that the human species has some chance of resolving the major problems that we face in achieving economic, social and environmental sustainability for the future, and future generations.
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