Industrial relations and restorative justice

No. 18, 24 January 2006

by Neil Holm

Based on my employment experience, I believe the retention of unfair dismissal laws is more likely to produce just outcomes than a system that makes dismissal easier. Just outcomes are possible because the retention of unfair dismissal laws provides greater opportunity for staff and management to engage in restorative justice processes that encourage reconciliation and corporate redemption.

For thirteen years, I headed a small hospitality/accommodation business employing about 20 full-time staff and an equal number of casuals. We were usually harmonious, but at one stage we experienced significant industrial unrest. If we had operated under a system that allowed easy dismissal, I may have been tempted to act unfairly and unjustly. I now understand that our unpleasant situation was as much a matter of corporate sin as it was of individual sin.

When problems occur we blame individuals. I sought to blame “intractable, unreasonable” staff who similarly blamed “intractable, unreasonable” management. The matter ultimately reached the Industrial Commission that produced an outcome not entirely satisfactory to any of the parties. As our problems deepened, the staff and I trusted each other less and sought retribution. There seemed no place for grace. It becomes very easy to think of the other person as an object – as a liar rather than a man who sometimes lies, as a thief rather than a woman who may have stolen something, as a thug rather than a youth who lacks self-control. This leads to behaviour that is less human, less fair, less just, than if we regarded them as persons.

In Jesus’ day, many people had become objects – sinners, publicans, lepers, prostitutes, Samaritans. In a workplace, it is easy for management to regard staff in similar ways. When we dismiss someone, we sever the relationship. We remove the possibility of grace. We say, “You have done wrong, you have sinned. You are responsible for your actions. There is no one who can intervene on your behalf.” For this way of thinking, the concept of grace is irregular and absurd (Dorothy Solle, cited by T. Richard Snyder, The Protestant Ethic and the Spirit of Punishment, Eerdmans, 2001, p. 69).

But wrongdoing in the workplace is not committed in a vacuum. The choices I made were in a context that included demands from my board for a more efficient operation and from clients and other stakeholders for a less expensive service. The choices the staff made were in a context that included their family circumstances, generally very limited education, their ethnicity, their need to maintain their status among their workmates, and their allegiance to the union. The union decisions were made in a context of falling union membership, a need to be seen as effective and serving members’ needs, to be seen as equal (or superior) to management, and to behave in ways consistent with their behaviour in other workplaces.

Snyder illustrates this point with a story: “When people started blaming Saddam Hussein, my heart went out to him … He may be a bad man, but without his army, he cannot act as aggressively as he does. And his army, without weapons, cannot do anything. And these weapons were not produced in Iraq itself. Who supplied them? Western nations!” (p. 66).

All sin and fall short of the glory of God. We are each responsible individually and we are responsible corporately. There is corporate sin as well as individual sin. There is corporate redemption as well as individual redemption. Dismissing an employee is like divorce. Like divorce it is usual to speak as if the other were to blame and not to recognise how both parties participated in the failing relationship (p. 69).

How can we provide for corporate redemption? One of the advantages of unfair dismissal laws is that they prevent over-hasty dismissal. They create a space in which we have the opportunity to engage in corporate redemption. Jesus died for our redemption, to restore our relationship with God. He is just as interested in restoring workplace relationships to right relationships with God as he was in restoring me back to right relationship with God.

I did not understand these things when I was managing the workplace. I wish I had. I knew that I wanted the restoration of relationships but I didn’t know how to achieve them. I now believe that we might profitably restore relationships in the following ways.

First, make three assumptions: (1) Workplace “crime” is primarily a conflict between individuals, resulting in injuries to victims, communities and offenders; only secondarily is it law-breaking. (2) The overarching aim of the workplace justice process should be to reconcile parties while repairing injuries caused by the “crime”. (3) Workplace justice processes should facilitate active participation by victims, offenders, and their communities. It should not be dominated by the government or other outside bodies.

Second, we need the services of skilled facilitators who can assist all involved. I am not aware of this process being used in any workplace. However, it is used in other arenas such as the Truth and Reconciliation Commission in South Africa; criminal justice in Sweden; youth courts in New Zealand; and North American sentencing circles. It has also been used in some schools in Australia and the NSW Department of Corrective Services.

The significant elements in this process include an opportunity for all affected parties to tell their stories and from this basis seek a way of restoring the broken relationships. The process is not easy and is time consuming. However, the alternatives are also difficult, time consuming and costly.

Yet in corporate redemption we must seek reconciliation. Christians have faith in the kingdom of God. Because we are so sure of the reality of God and the certainty that his rule will come on earth, we are committed to bringing into being the foretastes of his Kingdom – justice, liberation, healing, forgiveness. A workplace characterised by reconciliation, corporate redemption and restorative justice is a foretaste of the Kingdom of God.

Dr Neil Holm is Senior Lecturer in Education Studies and Christian Formation at Macquarie Christian Studies Institute, Sydney, Australia. A longer version of this article appeared on the Wellspring Community website, www.wellspringcommunity.org.au

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