Patterson a j Mcom Thesis

8/2/2019 Patterson a j Mcom Thesis.

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EMPLOYMENT IDEOLOGY AND

GRIEVANCE ADJUDICATION:

AN EMPIRICAL EXAMINATION OF ADJUDICATORSIDEOLOGICAL PREDISPOSITIONS,OTHER

CHARACTERISTICS, AND PERSONAL GRIEVANCECASE DETERMINATIONS

ANDREW PATTERSON

A THESIS SUBMITTED FOR THE DEGREE OF MASTER OF COMMERCE,

THE UNIVERSITY OF OTAGO,DUNEDIN,NEW ZEALAND

JUNE 2010


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Andrew Patterson Employment Ideology and Grievance Adjudication

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ABSTRACT

Employment adjudicators are charged with the task of determining personal grievance

cases on the merits of each case and with regard to both statute and common law.Scholarly interest in their decision making is widespread in New Zealand and

internationally, and has largely focused on the plethora of variables that combine to

constitute a determination.

Because grievance determinations are made within the broader context of the

employment relations frameworkthat has at its centre the notion of employment

ideologythe primary purpose of the present study is to explore the relationship

between the ideological predispositions of employment adjudicators and the

determinations that they make. A secondary purpose is to explore the relationship

between adjudicator characteristics, other than ideology, and those same grievance

determinations.

A quantitative research design that employs the use of both electronic and paper

questionnaires is developed. Participants are asked to read four short personal grievance

case descriptions and make a determination on each as if they were the adjudicator

acting in the case. The research sample consists of 66 senior undergraduate and

postgraduate students of employment relations and employment law drawn from

Dunedin, Christchurch, Wellington, Waikato, and Auckland.

The ideological leanings of participants are measured through the application of an

ideology questionnaire developed by Geare (1986) and later refined and applied by

Geare, Edgar, and McAndrew (2006, 2009). The strength of participants ideological

leanings are well distributed. Seventy-five percent are pluralist and 25% unitarist.

Preliminary data analysis is conducted by way of descriptive statistics. Further analysis

is conducted through the use of Pearson correlation, chi-square tests for independence,

one-way between-groups analysis of variance, multiple regression, and binary logistic

regressions. All statistical analyses are performed using the statistical package SPSS

15.0.

The study finds that the influence of adjudicators ideological predispositions on case

outcomes extends only so far as the amounts of compensation awarded to grievants


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over a range of casesan area of adjudicator decision making afforded the most room

for legitimate discretionprior to the reduction of remedies. Unitarist leaning

adjudicators are found to be more likely to award less amounts of compensation than

pluralist adjudicators. Adjudicators ideological predispositions are found to have no

influence on the decision to find justification for employer actions, or any of the other

remedies examined. In a number of cases, adjudicator characteristics, other than

ideology, are found to be influential upon adjudication outcomes. Adjudicators views

on specific components of ideology are also found to be associated with a range of

different outcomes and remedies.

The findings come as a welcome addition to the largely disparate conclusions of earlier

research and partially affirm those earlier studies that find adjudicators beliefs,

attitudes and values, may hold a subtle influence over adjudicator decision making.

Future research will benefit from more in depth exploration of the relationship between

specific components of ideology and particular types of case. The opportunity also

exists for research to explore other aspects of adjudication hearings, and for a wider

global collaborative approach to research in the field.


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ACKNOWLEDGEMENTS

There are a number of people that played an important role in the completion of this

thesis and to whom I would like to extend my sincere thanks. First and foremost Iwould like to take the opportunity to thank my supervisor Ian McAndrew for his

dedication, ongoing guidance, and support. In addition to providing me with invaluable

feedback throughout the entire research process, he helped to stimulate and inspire my

interest in employment relations.

From the Department of Management, Nancy Benington proof read my work in detail

and with unusual enthusiasm. Alan Geare and Fiona Edgar answered a range of

questions and pointed me in the right direction. Kaye Jeffries helped to keep me

motivated. Ideas were sounded out with Kelly Honey, and Diane Ruwhiu gave some

good advice.

Many thanks must also be given to the employment relations and employment law

course co-ordinators from Dunedin, Christchurch, Wellington, Waikato, and Auckland

who obligingly assisted with administering the questionnaires. My family and friends

were always there to give kind words of encouragement.

This could not have been achieved without the loving support and encouragement of

my wonderful wife Nikki. She was, and is always, there to offer her warmth and

kindness. But above all, she believed in me right the way through.


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TABLE OF CONTENTS

ABSTRACT ........................................................................................................................ II

ACKNOWLEDGEMENTS ............................................................................................. IV

LIST OF TABLES ........................................................................................................... IX

LIST OF FIGURES ........................................................................................................ XII

CHAPTER 1: INTRODUCTION ...................................................................................... 1

1.1.BRIEF HISTORY AND DEVELOPMENT OF GRIEVANCE ADJUDICATION INNEW

ZEALAND ................................................................................................................................ 2

1.1.1. Industrial Conciliation and Arbitration Act 1894 ................................................... 2

1.1.2. Industrial Conciliation and Arbitration Amendment Act 1970................................ 3

1.1.3. Industrial Relations Act 1973 .................................................................................. 3

1.1.4. Labour Relations Act 1987 ...................................................................................... 5

1.1.5. Employment Contracts Act 1991 ............................................................................. 5

1.1.6. Employment Relations Act 2000 .............................................................................. 6

1.2.PERSONAL GRIEVANCES UNDER THE EMPLOYMENT RELATIONS ACT 2000 ..................... 7

1.2.1. Steps for the Resolution of Personal Grievances ..................................................... 71.2.2. Types of Personal Grievance ................................................................................. 10

1.2.3. Test of Justification ................................................................................................ 10

1.2.4. Substantive Justification ........................................................................................ 11

1.2.5. Procedural Fairness .............................................................................................. 13

1.2.6. The Outcomes of Personal GrievancesRange of Remedies ................................. 15

1.2.7. Reduction of Remedies ........................................................................................... 16

1.3.USAGE OF GRIEVANCE ADJUDICATION INNEW ZEALAND TODAY ................................. 16

1.4.FOCUS OF THIS STUDY ................................................................................................... 19

1.4.1. An Agenda .............................................................................................................. 20

CHAPTER 2: IDEOLOGY .............................................................................................. 21

2.1.HISTORICAL OVERVIEW OF IDEOLOGY........................................................................... 21

2.2.IDEOLOGY IN EMPLOYMENT RELATIONS........................................................................ 22

2.2.1. Origins ................................................................................................................... 22

2.2.2. Introduction and Development .............................................................................. 22


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2.2.3. A Definition of Ideology ......................................................................................... 24

2.2.4. The Unitarist Ideology ........................................................................................... 25

2.2.5. The Pluralist Ideology............................................................................................ 26

2.2.6. The Radical Ideology ............................................................................................. 27

2.2.7. Contemporary Research on Ideology .................................................................... 28

2.2.8. Summary ................................................................................................................ 29

CHAPTER 3: FACTORS ASSOCIATED WITH GRIEVANCE ADJUDICATION

DECISION MAKING ....................................................................................................... 30

3.1.ADJUDICATORCHARACTERISTICS .................................................................................. 31

3.1.1. Adjudicator Values and Beliefs .............................................................................. 31

3.1.2. Adjudicator Gender ............................................................................................... 33

3.1.3. Adjudicator Age ..................................................................................................... 35

3.1.4. Adjudicator Type .................................................................................................... 35

3.1.5. Adjudicator Experience ......................................................................................... 36

3.1.6. Adjudicator Education ........................................................................................... 37

3.2.GRIEVANT CHARACTERISTICS ........................................................................................ 38

3.2.1. Grievant Length of Service .................................................................................... 38

3.2.2. Grievant Occupation .............................................................................................. 393.2.3. Grievant Seniority .................................................................................................. 39

3.2.4. Grievant Age .......................................................................................................... 40

3.2.5. Grievant Ethnicity .................................................................................................. 40

3.2.6. Grievant Impression Management ......................................................................... 40

3.3.OTHERCONSIDERATIONS ............................................................................................... 41

3.3.1. Representative Counsel .......................................................................................... 42

3.3.2. Location ................................................................................................................. 43

3.3.3. Sector ..................................................................................................................... 44

3.3.4. Repeat Player Effect .............................................................................................. 44

3.3.5. Transitional Comments .......................................................................................... 45

CHAPTER 4: RESEARCH QUESTIONS AND METHODOLOGY .......................... 47

4.1.RESEARCH QUESTIONS................................................................................................... 47

4.1.1. Research Question One.......................................................................................... 47

4.1.2. Research Question Two ......................................................................................... 47


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4.2.HYPOTHESES .................................................................................................................. 47

4.2.1. Hypothesis One ...................................................................................................... 47

4.2.2. Hypothesis Two ...................................................................................................... 48

4.2.3. Hypothesis Three ................................................................................................... 48

4.2.4. Hypothesis Four ..................................................................................................... 49

4.2.5. Hypothesis Five ...................................................................................................... 49

4.2.6. Hypothesis Six ........................................................................................................ 49

4.3.METHODOLOGY:OPERATIONALISATION OF THE VARIABLES ......................................... 51

4.4.PARTICIPANTS AND PROCEDURE .................................................................................... 51

4.5.RESEARCH DESIGN......................................................................................................... 52

4.5.1. Part OneGrievance Case Scenarios .................................................................... 53

4.5.2. Part TwoDetermining Ideological Predispositions ............................................. 54

4.5.3. Part ThreeItems for Classification ...................................................................... 58

CHAPTER 5: RESULTS .................................................................................................. 60

5.1.DESCRIPTIVE STATISTICS............................................................................................... 60

5.1.1. Questionnaire Part One: Case Scenario Outcomes .............................................. 60

5.1.2. Questionnaire Part Two: Ideology Questionnaire ................................................ 66

5.1.3. Questionnaire Part Three: Items for Classification .............................................. 765.2.STATISTICAL EXAMINATION OF THE RELATIONSHIP BETWEEN ADJUDICATOR

IDEOLOGY AND CASE OUTCOMES:CORRELATIONS .............................................................. 80

5.2.1. Adjudicator Ideology ............................................................................................. 80

5.2.2. Adjudicator Views on Various Components of Ideology ....................................... 94

5.3.STATISTICAL EXAMINATION OF THE RELATIONSHIP BETWEEN OTHERADJUDICATOR

CHARACTERISTICS AND CASE OUTCOMES:CORRELATIONS................................................ 107

5.3.1. Gender.................................................................................................................. 107

5.3.2. Age ....................................................................................................................... 107

5.3.3. Region of Residence ............................................................................................. 108

5.3.4. Occupation (Part-time/full-time student) ............................................................. 109

5.3.5. Union Membership (past and current) ................................................................ 109

5.3.6. Legal Training ..................................................................................................... 110

5.4.STATISTICAL EXAMINATION OF THE RELATIONSHIP BETWEEN ADJUDICATOR

IDEOLOGY AND OTHERCHARACTERISTICS, AND CASE OUTCOMES:REGRESSIONS ............ 125

5.4.1. Case Scenario One ............................................................................................... 125


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5.4.2. Case Scenario Two .............................................................................................. 128

5.4.3. Case Scenario Three ............................................................................................ 130

5.4.4. Case Scenario Four ............................................................................................. 132

5.4.5. Combined Case Outcomes ................................................................................... 134

5.5.HYPOTHESIS TESTING................................................................................................... 137

CHAPTER 6: DISCUSSION ......................................................................................... 139

6.1.VARIANCE IN DETERMINATION OUTCOMES BETWEEN ADJUDICATORS ....................... 139

6.2.THE INFLUENCE OF ADJUDICATORIDEOLOGY ON GRIEVANCE ADJUDICATION

DETERMINATIONS ............................................................................................................... 140

6.2.1. Finding Justification for Employer Actions ......................................................... 141

6.2.2. Reinstatement Awards and the Removal of Warnings ......................................... 141

6.2.3. Compensation Awards & the Reduction of Remedies.......................................... 142

6.3.THE INFLUENCE OF OTHERADJUDICATORCHARACTERISTICS ON GRIEVANCE

ADJUDICATION DETERMINATIONS...................................................................................... 146

6.3.1. Gender.................................................................................................................. 146

6.3.2. Age ....................................................................................................................... 147

6.3.3. Region of Residence ............................................................................................. 148

6.3.4. Occupation (part-time/full-time student) ............................................................. 1496.3.5. Union Membership (past and current) ................................................................ 149

6.3.6. Legal Training ..................................................................................................... 150

6.4.EXPLORATORY DISCUSSION ON THE INFLUENCE OF IDEOLOGICAL COMPONENTS ........ 151

6.4.1. Finding Justification for Employer Actions ......................................................... 152

6.4.2. Compensation Awards ......................................................................................... 153

CHAPTER 7: CONCLUSIONS ..................................................................................... 157

7.1SUMMARY OF KEY FINDINGS ........................................................................................ 157

7.2.LIMITATIONS AND SUGGESTIONS FORFUTURE RESEARCH........................................... 160

8: REFERENCES ............................................................................................................ 163

9: LEGISLATION .......................................................................................................... 179

10: CASES ........................................................................................................................ 180

11: APPENDIX ................................................................................................................ 181


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LIST OF TABLES

Table 1.1Compensation Awards Distribution from the Employment Relations

Authority (1 Jan '0930 Jun '09)................................................................................ 19Table 5.1Raw Responses to Statements about Ideology .................................................. 70

Table 5.2Re-Coded Responses to Statements about Ideology: Arranged by

Component.................................................................................................................. 73

Table 5.3Descriptive Statistics: Adjudicator Characteristics (Other than Ideology) ....... 79

Table 5.4 Correlations: Case Scenario One Outcomes by Ideology.................................. 83

Table 5.5 Chi-Square Tests for Independence: Case Scenario One Outcomes by

Ideology...................................................................................................................... 84Table 5.6 Correlations: Case Scenario Two Outcomes by Ideology ................................ 85

Table 5.7Correlations: Case Scenario Three Outcomes by Ideology .............................. 87

Table 5.8 Chi-Square Tests for Independence: Case Scenario Three Outcomes by

Ideology....................................................................................................................... 88

Table 5.9Correlations: Case Scenario Four Outcomes by Ideology ............................... 89

Table 5.10Chi-Square Tests for Independence: Case Scenario Four Outcomes by

Ideology....................................................................................................................... 89

Table 5.11 Correlations: Combined Case Scenario Outcomes by Ideology...................... 94

Table 5.12 Correlations: Case Scenario One Outcomes by Ideological Component ...... 96

Table 5.13 Correlations: Case Scenario Two Outcomes by Ideological Component........ 98

Table 5.14 Correlations: Case Scenario Three Outcomes by Ideological Component... 101

Table 5.15Correlations: Case Scenario Four Outcomes by Ideological Component..... 103

Table 5.16Correlations: Combined Case Scenario Outcomes by Ideological

Component ............................................................................................................... 106

Table 5.17 Correlations: Case Scenario One Outcomes by Other Adjudicator

Characteristics ..........................................................................................................112

Table 5.18 Chi-Square Tests for Independence: Case Scenario One Outcomes by

Other Adjudicator Characteristics............................................................................ 113

Table 5.19One-Way ANOVA: Case Scenario One Outcomes by Other Adjudicator

Characteristics (Region of Residence)...................................................................... 114

Table 5.20Correlations: Case Scenario Two Outcomes by Other Adjudicator

Characteristics .......................................................................................................... 115


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Table 5.21 One-Way ANOVA: Case Scenario Two Outcomes by Other Adjudicator


Table 5.22Correlations: Case Scenario Three Outcomes by Other Adjudicator


Table 5.23Chi-Square Tests for Independence: Case Scenario Three Outcomes by

Other Adjudicator Characteristics............................................................................ 118

Table 5.24 One-Way ANOVA: Case Scenario Three Outcomes by Other Adjudicator


Table 5.25Correlations: Case Scenario Four Outcomes by Other Adjudicator


Table 5.26 Chi-Square Tests for Independence: Case Scenario Four Outcomes by

Other Adjudicator Characteristics........................................................................... 121

Table 5.27One-Way ANOVA: Case Scenario Four Outcomes by Other Adjudicator


Table 5.28Correlations: Combined Case Scenario Outcomes by Other Adjudicator

Characteristics .......................................................................................................... 123

Table 5.29 One-Way ANOVA: Combined Case Scenario Outcomes by Other

Adjudicator Characteristics (Region of Residence).................................................. 124

Table 5.30Regressions: Summary of the Binary Logistic Regression Analysis for

Variables Predicting the Scenario One Reinstatement Determinations ................... 127

Table 5.31Regressions: Summary of the Multiple Linear Regression Analysis for

Variables Predicting the Scenario One Compensation Awards (Pre-ROR)............. 127


Variables Predicting the Scenario One Contributory Conduct Percentages ........... 128

Table 5.33 Regressions: Summary of the Multiple Linear Regression Analysis for

Variables Predicting the Scenario One Compensation Awards (Post-ROR) ........... 128


Variables Predicting the Scenario Two Compensation Awards (Pre-ROR) ............ 129


Variables Predicting the Scenario Two Contributory Conduct Percentages ........... 129


Variables Predicting the Scenario Two Compensation Awards (Post-ROR) ........... 129


Variables Predicting the Scenario Three Determinations of Unjustified


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Employer Action........................................................................................................ 130

Table 5.38Regressions:Summary of the Binary Logistic Regression Analysis for

Variables Predicting the Scenario Three Determinations to Withdraw Warning.... 131


Variables Predicting the Scenario Three Compensation Awards (Pre-ROR) .......... 131


Variables Predicting the Scenario Three Contributory Conduct Percentages ......... 131


Variables Predicting the Scenario Three Compensation Awards (Post-ROR)......... 132


Variables Predicting the Scenario Four Determinations of Unjustified Employer

Action ........................................................................................................................ 133


Variables Predicting the Scenario Four Reinstatment Determinations ................... 133


Variables Predicting the Scenario Four Compensation Awards .............................. 133


Variables Predicting the Extent to which Participants Found the employers'

Actions Unjustified ....................................................................................................135


Variables Predicting the Overall Total Compensation Awards (Pre-ROR) ............. 135


Variables Predicting the Overall Average Compensation Awards (Pre-ROR) ........ 136


Variables Predicting the Overall Total Compensation Awards (Post-ROR)............ 136


Variables Predicting the Overall Average Compensation Awards (Post-ROR)....... 136

Table 5.50Hypothesis Testing......................................................................................... 138


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LIST OF FIGURES

Figure 4.1Defining Variables ............................................................................................ 50

Figure 5.1Scenario One Adjusted Compensation Awards (Post-ROR) ............................ 61Figure 5.2 Scenario Two Adjusted Compensation Awards (Post-ROR) ............................ 62

Figure 5.3Scenario Three Findings of Justification.......................................................... 63

Figure 5.4 Scenario Three Adjusted Compensation Awards (Post-ROR).......................... 63

Figure 5.5Scenario Four Findings of Justification ........................................................... 64

Figure 5.6Scenario Four Reinstatement Awards .............................................................. 65Figure 5.7Scenario Four Compensation Awards .............................................................. 65

Figure 5.8Distribution of Ideology Scores (Pre-Outlier Examination) ............................ 67

Figure 5.9Box and Whisker Graph Iillustrating Ideology Score Statistical Outliers ....... 68

Figure 5.10Distribution of Ideology Scores (Post-Outlier Examination) ......................... 69

Figure 5.11Scatter Plot of Ideology Scores and Total Compensation Awards

(Pre-ROR) ................................................................................................................... 91

Figure 5.12 Scatter Plot of Ideology Scores and Total Compensation Awards

(Post-ROR) .................................................................................................................. 93


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CHAPTER 1: INTRODUCTION

This study examines the relationship between the characteristics of employment

adjudicators and the determination of personal grievance cases. Of particular interest isthe influence that adjudicators ideological views have on case determinations. Of

secondary interest is the relationship between other adjudicator characteristics, such as

demographics and union involvement, and the determinations that they make.

Employment adjudication has enjoyed a long history in New Zealand. Indeed, New

Zealands first governing piece of employment legislation, the Industrial Conciliation

and Arbitration Act 1894, introduced an adjudication arm charged with determining

employment disputes. Since its introduction adjudication has remained a constant

institutional feature of New Zealand employment relations. As a process, employment

adjudication is the engagement of an impartial third party (the adjudicator) for the

purpose of hearing arguments from all parties to a dispute, establishing facts, and

making a determination according to the substantial merits of the case (Spiller, 2007).

While adjudicators determinations are specific to the employment dispute presented

before them, their decisions are made and must be understood within the broader

context of the employment relations framework. The employment relations framework

encompasses the interaction of three major parties: managers and their organisations,

employees and their organisations, and the State, of which each is concerned with

obtaining their respective objectives through the establishment and operation of the

rules governing the work environment (Geare & Edgar, 2006). Furthermore, and salient

to this study, is the notion of employment ideology that holds a central position in the

framework (Wood, 1978).

Employment ideology is a set of beliefs, attitudes and values about the employment

relationship held by individuals or groups of individuals (Geare & Edgar, 2006). Its

significance as a central concept was established in arguably the most influential

theoretical writing on employment relations, where it was considered a binding entity

that held together the entire employment relations system (Dunlop, 1958). Following

the wave of interest stimulated by Dunlops (1958) seminal work, contemporary

research interest has been stimulated by the assertion that ideology fundamentally

determines judgements, which in turn determines behaviour (Fox, 1966b, p. 390).


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The implications from this are clear. If ideology is believed to influence personal

judgement and ultimately behaviour, and if it is centrally held by the actors in the

employment relations framework, it may then potentially be utilised as an explanatory

variable in the examination of the judgement and behaviour of actors within that

framework. Employment adjudicators are an important set of actors within the

employment relations framework whose judgement and determinations directly impact

upon the outcome of disputes between employees and employers. This study examines

the extent to which Foxs (1966b) assertion is applicable in helping explain the

determinations made by employment adjudicators in personal grievance cases.

Personal grievances are a type of rights dispute. Disputes of right relate to the

interpretation, application, or operation of an existing employment agreement (Geare &

Edgar, 2006) and can arise from the breach of either a statutory right or entitlement, or

contractual right or entitlement. Statutory rights and entitlements include the right to:

paid wages, minimum wage levels and wage protections; annual leave and public

holidays; and sickness, bereavement, and parental leave. Contractual rights and

entitlements include both express provisions, such as the actual rate of pay and working

hours, agreed annual leave entitlements, and other benefits; and implied provisions that

include the right to fair treatment.

In New Zealand, personal grievance adjudication determinations have been made under

a number of different procedural and institutional arrangements, reflecting domestic

and global economic and political trends. With an emphasis on grievance adjudication,

the next section considers the historical development of the New Zealand employment

relations framework to provide a wider context for this study.

1.1. Brief History and Development of Grievance Adjudication in New

Zealand

1.1.1. Industrial Conciliation and Arbitration Act 1894

The Industrial Conciliation and Arbitration Act 1894 laid the procedural and

institutional foundations of the New Zealand employment relations framework. The

purpose of the Act was to encourage union formation and the settlement of disputes

through compulsory conciliation and arbitration, but it curiously only applied to the

private sector. In terms of the institutional arrangements provided for under the Act, the


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Court of Arbitration was established as the sole statutory body charged with fulfilling

conciliation and arbitration duties. The conciliation arm of the Court of Arbitration

primarily dealt with matters relating to industrywide employment awards, whereas the

arbitration arm was granted jurisdiction over the settlement and determination of all

industrial disputes (Geare & Edgar, 2006).

This provided, for the first time in the history of New Zealand employment relations,

recourse for matters relating to the interpretation and application of employment

agreements (awards)matters that would later be defined as disputes of right. For a

dispute of this nature to be heard by the Court, however, it had to be brought to its

attention by a recognised private sector union. This meant individual employees did not

have a right to appeal to the Court of Arbitration over matters relating to their

individual employment circumstances. The Court comprised a neutral judge, one

representative from a workers union, and a representative from an employer

organisation. Later, in 1951, a lower level disputes committee was established for the

purpose of attempting to resolve disputes prior to a hearing at the Court of Arbitration.

1.1.2. Industrial Conciliation and Arbitration Amendment Act 1970

Following pressure from unions to establish provisions that provided for the settlementof matters such as individual employees dismissals, a 1970 amendment to the

Industrial Conciliation and Arbitration Act 1894 tentatively introduced legislation

designed to provide recourse for wrongful dismissals. This was a first attempt at

legislation providing for the determination of what were essentially personal grievances

in New Zealand. However, the legislation did have a fundamental flaw in that

dismissals were only considered wrongful if notice had not been provided (Anderson,

2003). The pressure from unions thus continued, and often meant the use of strike

action to appeal dismissal decisions by employers (Harbridge, Fraser, & Walsh, 2006;

McAndrew, 1995).

1.1.3. Industrial Relations Act 1973

The Industrial Relations Act 1973 amended the legislation surrounding rights disputes,

clearly defining personal grievances and disputes of interest, and establishing explicit

legislative recourse for the resolution of personal grievances relating to unjustified

dismissals (Anderson, 2003; Geare & Edgar, 2006). Moreover, it separated the former


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Court of Arbitration into an Industrial Court, which was charged with determining

disputes of right; and an Industrial Commission, charged with determining disputes of

interest.

This separation did not last long, however, and an amendment to the Industrial

Relations Act in 1978 established the Arbitration Court with the combined jurisdiction

of the former Court and Commission. The Arbitration Court, similar to the former

Court of Arbitration under the Industrial Conciliation and Arbitration Act, comprised a

tri-partisan arrangement that included a neutral judge, a union representative (from the

Federation of Labour), and an employer representative (from the Employers

Federation) (Miller, 1984).

In addition to the changes in the court structure, the Industrial Relations Act also

notably established a lower level grievance committee, similar in nature to the disputes

committee introduced in 1951, charged with dealing with disputes of right, including

personal grievances. However, for a personal grievance to be brought to the attention of

the grievance committee, it still had to be done so by a recognised trade union and was

thus similar to the arrangement under the Industrial Conciliation and Arbitration Act

which did not allow for individual employees to raise matters (McAndrew, 1995).

Moreover, the Industrial Relations Act required grievance procedures to be explicitly

included in collective employment agreements (Miller, 1984). These procedures

commonly followed the stages of workers first lodging their complaints to their

supervisors, then informing their union, and formally expressing their complaint in

writing to their employer (Geare & Edgar, 2006). If those steps failed to resolve the

dispute, the grievance committee would then become involved.

The grievance committee comprised equal numbers from the employer side and the

grievant/union side and was normally presided over by a designated government

representative chairperson. The chairperson of the committee either mediated a

voluntary agreement between the two sides, or had the power to make a determination

on the matter, with the parties consent (McAndrew, 1995). Interestingly, once a

determination was made by the chairperson, the decision was final and binding and was

not subject to appeal to the Arbitration Court (or prior to 1978, the Industrial Court).

Grievances would only be heard by the Court if referred from the grievance committee

where the parties did not mutually agree on the chairperson making the decision.


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1.1.4. Labour Relations Act 1987

New provisions under the Labour Relations Act 1987 meant further procedural and

institutional changes to the employment relations framework in New Zealand. A first

fundamental change came in the form of voluntary adjudication in the private sector,

which had been compulsory by law in the private sector since 1894. On an institutional

level, the Labour Relations Act abolished the Arbitration Court and in its place formed

the Labour Court which dealt with disputes of right, personal grievances, and

demarcation disputes; and the Arbitration Commission which dealt with disputes of

interest. Moreover, the Act also fundamentally changed the jurisdiction of both the

Labour Court and the Arbitration Commission by extending its coverage to include

determination of both private sector and public sector disputes.

The grievance committee, as established under the former Industrial Relations Act,

remained but due to the extension of the Acts jurisdiction was now required to assist in

the resolution of private and public sector personal grievances lodged through a union.

Moreover, the Act expanded on the range of matters that could be disputed to include

sexual harassment and discrimination on the basis of ethnicity, marital status, religious

beliefs, and union involvement (McAndrew, 1995). In terms of the legality of strike

action by unions, the Labour Relations Act deemed strike action unlawful if it

concerned a dispute of right, or a personal grievance (Geare & Edgar, 2006).

1.1.5. Employment Contracts Act 1991

The Employment Contracts Act 1991 notably extended access to personal grievance

proceedings to all employees, regardless of union membership (Harbridge et al., 2009).

Consequently, all individual employees could now lodge personal grievance

applications against their employer independent from any union involvement

(Harbridge et al., 2006; McAndrew, 1995). This extension of access was consistent

with the newly elected National Party Governments approach to employment relations

that was characterised by a shift towards a focus on the individual, rather than the

collective (McAndrew, 1995).

The Act, which sought to promote an efficient labour market, encouraged the formation

of individual employment contracts over the use of collective bargaining and collective

agreements, and deemed union membership entirely voluntary (Charlwood & Haynes,


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2008). Moreover, the Employment Contracts Act, with its overt unitarist overtones

(Geare et al., 2009, p. 1149), is argued to have impacted worker and managerial views

towards the employment relationship, and potentially to have prompted an ideological

stance supportive of unitarism (Geare et al., 2009, p. 1149).

In terms of the institutional arrangements under the Employment Contracts Act, the

Labour Court was renamed the Employment Court, but held the same jurisdiction as its

predecessor. A lower level Employment Tribunal was established and performed

mediation and adjudication services similar to those previously performed by grievance

committees. The Tribunal comprised individual members who could conduct mediation

sessions, or hold adversarial adjudication hearings and make binding judgements. The

judgements of Tribunal members were subject to appeal by the parties and such appeals

were lodged with the Employment Court.

1.1.6. Employment Relations Act 2000

The Employment Relations Act 2000, the current governing legislation, made a number

of changes from the Employment Contracts Act. In terms of personal grievance

applications, recourse for common law proceedings for wrongful dismissal under

common law were, for example, abolished and all actions are now required to be madeunder statute (Geare, 2007, p. 267). In terms of the institutions, the Employment Court

remains but the Employment Tribunal was dissolved in favour of the Employment

Relations Authority.

The Employment Relations Authority has a markedly different approach to the former

Employment Tribunal. Where the adjudication arm of the Employment Tribunal

conducted hearings in an adversarial manner, the Employment Relations Authority is

deemed to be an investigative body that has the role of resolving employment

relationship problems by establishing the facts and making a determination according to

the substantial merits of the case, without regard to technicalities (Employment

Relations Act 2000, s. 157). A further point of difference is that members of the

Employment Relations Authority are barred from acting as both mediator and

adjudicator in the resolution of disputes. Mediation services are instead provided by the

Department of Labours Mediation Service.


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7

In practice, members of the Employment Relations Authority who preside over

grievance hearings are active in asking questions of the parties to the dispute (Jones,

2006), rather than listening to formal court-like submissions from disputants. The

inquisitorial approach may be considered considerably less formal and legalistic when

compared with the adversarial hearings previously conducted in the Employment

Tribunal under the Employment Contracts Act (Anderson, Drake, Hughes, Robson, &

Roth, 2009).

The Employment Relations Act was introduced by a Labour-led coalition Government

and states that its purpose is to build productive employment relationships through the

promotion of good faith in all aspects of the employment environment and of the

employment relationship (Employment Relations Act, 2000, s. 3). It has been noted as

being more supportive of collective bargaining and unions (Geare & Edgar, 2006, p.

418), and so in this respect is arguably somewhat more aligned with a pluralist

conceptualisation of the employment relationshipagain differing from the

Employment Contracts Act.

More recently, the incoming National Party-led coalition Government has enacted

legislation that provides the opportunity for a mutually agreed probationary period of

employment for all employees who work in an organisation comprising less than

twenty staff. Employees who are given notice of dismissal during such a probationary

period are not entitled to raise a personal grievance on the grounds of unjustified

dismissal. They may, however, raise grievances on the grounds of unjustified

disadvantage, discrimination or harassment. Once a ninety day probationary period has

been worked, all employees are entitled to lodge grievances against their employer.

1.2. Personal Grievances under the Employment Relations Act 2000

1.2.1. Steps for the Resolution of Personal Grievances

In terms of the correct procedure for the resolution of personal grievances, the

Employment Relations Act requires that all individual and collective employment

agreements contain a plain language explanation of the services available to resolve

employment relationship problems (Anderson et al., 2009, p. 39). It then goes on to

describe six main steps in that procedure.


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The first step involves the initiation of the grievance and requires that all personal

grievance claims be raised with the employer within 90 days of the facts giving rise to

the grievance (Anderson et al., 2009, p. 39). Only in the event of demonstrable

exceptional circumstances is an employee permitted to raise a personal grievance

with their employer after the 90 day period (Department of Labour, 2005). Provided a

personal grievance has been raised within the required time period, the grievant then

has three years in which to take an unresolved personal grievance case to the

Employment Relationship Authority (Haynes, Oldfield, & Fryer, 2006, p. 74).

Step two requires that all unresolved grievances be addressed at mediation, unless it can

be shown that mediation:

a) Will not contribute constructively to resolving the matter; orb) Will not, in all the circumstances, be in the public interest, or;c) Will undermine the urgent or interim nature of the proceedings

(Employment Relations Act, 2000).

Mediation may be initiated voluntarily by the parties to the dispute, or referred to by theEmployment Relations Authority or Employment Court. An advantage of mediation is

the consensual nature of any outcome (Goldblatt, 2007, p. 73), in that any agreement

must be reached voluntarily by both parties to a dispute. The parties may choose to

engage in the services provided by a private mediator, or a mediator from the

Department of Labours Employment Relations Service (Boulle, Goldblatt, & Green,

2008). The Employment Relations Act makes clear the value that it places on mediation

in that it should be the primary means of reaching a resolution, and that a genuine

attempt at addressing matters in mediation is normally required before further

proceedings can take place (Anderson et al., 2009; Boulle et al., 2008; State Services

Commission, 2000).

The Act also recognises the need for the mediation process to be flexible and thus also

provides for the option of a mediation/adjudication procedure where the parties may

agree to the mediator making a final determination on the dispute if unresolved by a

certain time (Spiller, 2007). Although mediator determination is an option available to


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disputants, such determinations have not been a feature of mediation (McAndrew,

2010, p. 85), under the Employment Relations Act.

The third step, and area of research interest for this study, involves an investigation and

determination by the Employment Relations Authority. As mentioned earlier, the

Employment Relations Authority is charged with investigating problems and issuing a

determination which will specify the findings of fact and law, and make orders as to

remedies that it deems appropriate (Anderson et al, 2009, pp. 3940). Bound by a

requirement to comply with the principles of natural justice and to support successful

employment relationships, the Employment Relations Authority has exclusive

jurisdiction to make determinations about employment relationship problems generally,

as provided by the Act (Spiller, 2007, p. 238), and is deemed a low-level specialist

adjudicatory body (Spiller, 2007).

The investigative and determinative proceedings for personal grievance cases are

conducted by single members of the Employment Relations Authority. The presiding

members are afforded significant freedom to communicate with the parties in a manner

they see fit, and may include communications with the parties before arranging an

investigative hearing (Anderson et al., 2009). In practice, however, the Employment

Relations Authority tends not to operate in a manner that exercises its inquisitorial

powers to any great extent prior to an investigative meeting (Green, 2002, p. 89). Once

made, personal grievance case determinations are public record.

If parties to a dispute are not satisfied with a determination made by the Employment

Relations Authority, the fourth, fifth, and sixth steps involve hearings in the

Employment Court, Court of Appeal, and in extremely rare cases, the Supreme Court

(Brookers, 2006). A hearing in the Employment Court comprises the first stage in the

judicial (as opposed to the investigative) aspect of the new procedures (Anderson et

al., 2009, p. 40), and is heard de novo (from the beginning). Failing a satisfactory

resolution in the Employment Court, cases can be appealed on a point of law and with

leave to the Court of Appeal, and further with leave to the Supreme Court.


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1.2.2. Types of Personal Grievance

Personal grievance proceedings can encompass a wide range of issues that an employee

may have against their employer (Anderson et al., 2009). As the law currently stands,

there are seven types of personal grievance claims:

1. That the employee has been unjustifiably dismissed2. That the employees employment has been affected to their

disadvantage by an unjustifiable action by the employer

3. That the employee has been discriminated against in their employment4. That the employee has been sexually harassed in their employment5. That the employee has been racially harassed in their employment6. That the employee has been subject to duress in their employment in

relation to membership or non-membership of a union or an employees

organisation

7. That the employees employer has failed to comply with a requirementof Part 6a (relating to continuity in employment if employees work

affected by restructuring) (Anderson et al, 2009; Employment Relations

Act, 2000).

This study will examine the adjudicator determinations in two unjustified dismissal

cases, an unjustified disadvantage case, and a case combining claims for unjustified

disadvantage and discrimination. The following section discusses the nature of personal

grievance proceedings with regard to these types of claims.

1.2.3. Test of Justification

All personal grievance claims essentially allege that an employer has acted in an

unjustifiably unfair and unreasonable manner towards an employee (or group of

employees). As such, the objective determination of what a fair and reasonable

employer would have done in all the circumstances at the time of the action constitutes

the statutory test of justification required to be satisfied for a grievance to be dismissed

by the Employment Relations Authority (Anderson et al., 2009; Employment Relations

Act, 2000; Rudman, 2008).


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In cases of unjustified dismissal and unjustified disadvantage the onus of proof lies

with the employer to the extent that they must actively justify their actions. In such

cases, the grievant has only to establish a prima facie case and some threshold issues

including that the grievant was (or is) indeed an employee, and that the alleged

unjustified actions of the employer actually took place (ie., that the employee was

dismissed, or disciplined etc.) (Anderson et al., 2009). Actions by an employer that

amount to discrimination, sexual harassment, racial harassment, and duress, on the

other hand, are presumed to be unfair and unreasonable and thus unjustifiable under

any circumstances. The onus of proof, then, effectively shifts to the grievant to

establish that the alleged actions were indeed undertaken by the employer (Anderson et

al., 2009).

To determine whether the employer actions were those of what a fair and reasonable

employer would have done under the circumstances, members of the Employment

Relations Authority consider the actions in terms of both substance and procedure

(Anderson et al., 2009; Rudman, 2008). The substantive element of justification refers

to the reasons behind the action, whereas the procedural element is in relation to

whether the action was carried out fairly and with regard to due process (Rudman,

2008). Both elements are heavily dependent on the facts of each individual case.

1.2.4. Substantive Justification

The substantive justification for an employer action in an alleged unjustified dismissal

case may be based upon the behaviour or conduct of an employee. Such behaviour or

conduct may include:

a) Unsatisfactory work performanceb) Incompatibility with the organisation or other employeesc) Persistent absenteeism or other attendance problemsd) Breaches of the duty of loyalty, trust or confidencee) Negligencef) Incompetence, where a person hired for particular skills turns out not to

have those skills

g) Misrepresentationh) Misconduct


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Other justifications include:

a) Redundancy (that the position is superfluous to the employers needs)b) Resignation (that the employee was not dismissed, but voluntarily

resigned)

c) Legal frustrationd) Deathe) Sickness or injuryf) Receivership or liquidation of the employers companyg) The expiry of a fixed-term agreement (Rudman, 2008).

The substantive reasons for an employer action in an alleged unjustified disadvantage

case are often the same as those in a case of alleged unjustified dismissal, but can also

include decisions made for business purposes. The main difference, however, is in

terms of the impact on the employee. For instance, whereas the employment agreement

is terminated in dismissal cases, the impact on the employee in cases of alleged

unjustified disadvantage amounts to action less than dismissal and may or may not

include material disadvantage or financial loss (Rudman, 2008). Generally, unjustified

disadvantage personal grievances relate to instances where the employer has

unilaterally varied the terms of employment, disciplined an employee with action less

than dismissal, or breached or deprived an employee of the express or implied terms of

an employment agreement.

While the scope of cases that can potentially amount to unjustified disadvantage

remains uncertain and is obviously capable of expansion (Anderson et al., 2009, p.

55), common types of employer actions claimed to result in an unjustified disadvantage

to an employee include:

a) Disciplinary actionb) Warningsc) Demotiond) Transfere) Restructuringf) Change in terms of employmentg) Intervention of a third party


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13

h) Failure to provide a safe workplacei) Loss of prospects for renewal or re-employment

j) Loss of promotional opportunitiesk) Remuneration adjustmentsl) Other economic considerationsm)Salary and performance reviews (Thomson-Brookers, 2009).

Pursuant to section 105, personal grievances that allege discrimination on the part of

the employer can be based on grounds of:

a) Genderb) Marital statusc) Religious beliefd) Ethical beliefe) Colourf) Raceg) Ethnic or national originsh) Disabilityi) Age

j) Political opinionk) Employment statusl) Family statusm)Sexual orientation

In addition to these grounds, discrimination grievances can also be based on grounds of

involvement in the activities of a union, or health and safety issues (section 28A ofthe Health and Safety in Employment Act 1992).

1.2.5. Procedural Fairness

Developed under common law, the requirements of procedural fairness in unjustified

dismissal cases for misconduct are:

a) The worker must be given notice of the specific allegation ofmisconduct


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b) The worker must be given a real opportunity to explain or refute theallegation

c) There must be an unbiased consideration of the explanationd) The worker must be told that dismissal could be the outcome of any

planned investigation (Anderson et al., 2009; Rudman, 2008).

In cases where an employee has been dismissed for poor performance the procedural

fairness requirements expect that an employer would have:

a) Discussed the performance with the employee and expresseddissatisfaction with the level of standard

b) Provided the employee with a clear statement of the expected standardor level of performance

c) Warned the employee of the consequences, including the possibility ofdismissal, if performance does not improve to the required level or

standard

d) Provided the employee with the training, supervision and otherassistance needed for improvement

e) Given the employee a reasonable opportunity to improvef) Considered, and discussed with the employee, what changes have

occurred and whether they meet the employers expectations or

requirements (Anderson et al., 2009; Rudman, 2008).

In terms of unjustified disadvantage cases for disciplinary action, the procedural

fairness requirements are similar to those for unjustified dismissal cases for

misconduct. The procedural fairness requirements in redundancy cases is less clear, butgenerally involves a certain level of consultation (as provided by Simpsons Farms Ltd v

Aberhard):

a) Where consultation requires more than mere prior notification and mustbe allowed sufficient time. It is to be a reality not a charade. It must not

be treated perfunctorily or as a mere formality

b) A proposal must not be acted upon until after consultation. Employeesmust know what is proposed before they can give their views


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15

c) Sufficient precise information must be given to enable employees tostate their views either orally or in writing. Employees must be given a

reasonable opportunity to state their views

d) Genuine efforts must be made to accommodate the views of employees.There should be a tendency to seek consensus. The employer must

listen to what employees have to say before deciding what to do

e) The employer is entitled to have a working plan in mind but must havean open mind and be ready to change and even start anew

f) There need not be agreement between employer and employee after aproper consultation (Rudman, 2008).

1.2.6. The Outcomes of Personal GrievancesRange of Remedies

If a member of the Employment Relations Authority finds that an employer has acted

unjustifiably and that the employee does indeed have a grievance, then the member has

power to award a range of remedies (Anderson et al., 2009). The three main types of

remedy are: reinstatement, reimbursement, and compensation.

The primary remedy under the Employment Relations Act is reinstatement. This means

that, if sought, the employee be reinstated in the employees former position, or that

the employee be placed in a position no less advantageous (Anderson et al., 2009, p.

61). Reimbursement is when an employee is awarded reimbursement for lost

remuneration as a result of the unjustified actions of an employer. Under section 128 of

the Employment Relations Act, reimbursement awards are recommended to be the

lesser amount of the actual remuneration lost, or three months wages.

According to section 123 of the Employment Relations Act, compensation may beawarded to an employee for the following reasons:

i. Humiliation, loss of dignity, and injury to the feelings of the employee;and

ii. Loss of any benefit, whether or not of a monetary kind, which theworker might reasonably have been expected to obtain if the personal

grievance had not arisen.


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1.2.7. Reduction of Remedies

In addition to the range of remedies that may be awarded to an employee, the

Employment Relations Act accepts that under some circumstances, the employee may

be considered to have acted in a manner that contributed towards their grievance. In

such cases, members of the Employment Relations Authority may attribute a

percentage of contributory conduct to the employees actions. If a percentage of

contributory conduct is attributed to the employees actions, then the monetary amount

awarded to the employee is reduced by that percentage.

1.3. Usage of Grievance Adjudication in New Zealand Today

Today, there are more than two million people in paid employment in New Zealand.

Eighty percent of these are employees and (providing a probationary period has been

fulfilled) are thus eligible to claim for personal grievance (Ministry of Economic

Development, 2007). Fortunately, however, only a small proportion of the one and a

half million employees in New Zealand formally lodge personal grievance proceedings

with the Employment Relations Authority and an even smaller proportion of those

advance through to adjudication (Department of Labour, 2006, 2007a).

According to McAndrew (2009), this is because employment relationship problem

resolution systems effectively operate like a funnel (p. 80). For instance, most

employment issues that arise are resolved in the first instance internally by the

employer through informal channels (Department of Labour, 2007a). Failing this, a

lesser amount are resolved with the assistance of professionals (employment advocates,

consultants, and lawyers etc.), but still somewhat informally. Even less again are

resolved at mediation, and only a small number advance to be determined by a member

of the Employment Relations Authority.

Although there are no comprehensive statistics maintained on the size and shape of the

funnel under the New Zealand system, the results from a small number of studies do

help paint a reasonably clear picture of its architecture. For instance, in a study

commissioned by the Department of Labour and reported by Bernard Woodhams

(2007), the incidence of employment relationship problems from businesses

perspective was 1.5 problems per 100 employees. In the public sector, the incidence

rate was 0.8 problems per 100 employees. Thirty one percent of problems were


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17

reported as being resolved internally by the employer, and a further twenty-nine percent

resolved with the assistance of external professionals. Mediation was reported as

accounting for the resolution of thirty percent of employment relationship problems,

and a further five percent were resolved by adjudication at the Employment Relations

Authority. The remaining problems either proceeded to the Employment Court, or were

unresolved.

From those reported findings, at an average of 1.15 employment relationship problems

per 100 employees (in both the public and private sectors), there would be 17,250

problems per year out of the total population of employees (1.5 million). This would

mean that roughly 860 cases are determined through adjudication at the Employment

Relations Authority each year. Indeed, this amount is supported by McAndrew (2009),

who asserts that the Employment Relations Authority routinely turns out about 850

determinations per year (McAndrew, 2009, p. 14). While the majority of workplaces

do not experience employment relationship problems (McDermott Miller Limited,

2007), these statistics do give an indication as to the significant number of New

Zealanders who are involved in the dispute resolution process each year.

In terms of the types of cases heard by the Employment Relations Authority, a number

of studies have identified that personal grievance claims for unjustified dismissal

account for the overwhelming majority (Department of Labour, 2007c; McAndrew,

2002; McDermott Miller Limited, 2007). The most recent analysis of personal

grievance determinations in the Employment Relations Authority reported that 70% of

all personal grievance claims were for unjustified dismissal, 28% for alleged unjustified

disadvantage, and 2% for alleged sexual harassment (Department of Labour, 2007c).

Limiting that study, however, was a small sample size of 43 personal grievance claims

(in 33 determinations). Nevertheless, it does give an indication as to the proportion of

the types of grievances determined by members of the Employment Relations

Authority.

An earlier notable study found that 42% of all claims were personal grievances alleging

unjustified dismissal, 7% were claims for arrears of wages and holiday pay, and 2%

were personal grievances alleging unjustified disadvantage (McAndrew, 2002). In

terms of the nature of the personal grievance cases determined by the Employment

Relations Authority, the same study found that 34% of alleged unjustified dismissals


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involved an employee being dismissed for misconduct, 21% were made redundant,

15% alleged constructive dismissal, and 4% for performance reasons. A further 22%

were for other reasons, and 4% of all personal grievances alleged unjustified

disadvantage (McAndrew, 2002).

Little research has been conducted into the extent to which employers and employees

win or lose personal grievance cases in the Employment Relations Authority. However,

from the research that does exist, one study found that the overall percentage of

employees who win their case in the Employment Relations Authority is 58%

(McAndrew, 2002).

In terms of the remedies awarded by members of the Employment Relations Authority,

the most recent research indicated that 6% of employees who were found to be

unjustifiably dismissed were awarded reinstatement (Department of Labour 2007).

Quantifying reimbursement awards are problematic, in that such determinations are

often quantified in weeks, rather than in monetary terms. Of the limited information

available on this remedy, the most recent report from the Department of Labour (2007)

indicated that reimbursement for lost remuneration was awarded in 42% of all personal

grievance cases.

The range of compensation amounts for humiliation, loss of dignity and injury to

feelings is reported as normally in the range of $2000$5000 (McAndrew, 2002;

McDermott Miller Limited, 2007). Information on the amount of compensation

awarded in the Employment Relations Authority is readily available on a six-monthly

basis from the Department of Labour. The distribution of compensation amounts for the

period 1 January 200930 June 2009 are illustrated in Table 1.1 below.


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Table 1.1 Compensation Awards Distribution from the Employment Relations

Authority (1 Jan 0930 Jun 09)

Award Amount ($) Percentage Awarded (%)*

1999 110001999 4

20002999 16

30003999 11

40004999 14

50005999 11

60006999 11

70007999 14

80008999 4

90009999 91000010999 3

1100011999

1200012999

1300013999

1400014999

15000 + 3

* Note: Percentages are rounded to zero decimal places and hence do not total 100

Source: Department of Labour, 2009.

1.4. Focus of This Study

This study begins with the assumption that grievance adjudication decisions are based

primarily on the merits of the case presented to the employment adjudicator. It does,

however, also recognise that determinations take place within a complex employment

relations framework comprised workers, employers and the state, and bound together

by many similar and many competing ideological predispositions. Early scholarly work

emphasised the significance of ideology as a frame of reference through which actions

and facts are interpreted and subsequent decisions and behaviour are based upon (Fox,

1966a, 1966b). Research into grievance adjudication decision making has found that, in

some studies, adjudicators may be subtly influenced by the beliefs, attitudes and values

that they hold (Biernat & Malin, 2008; Crow & Logan, 1994; Gross, 1967, 1997;

Landis, 1977).

The primary purpose of this study, then, is to examine the relationship between the

employment ideologies held by employment adjudicators and the determinations ofthose adjudicators. A secondary purpose is to re-examine the relationship between a


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number of other variables and adjudication outcomes in a manner consistent with

previous research identified in the literature. This is achieved through requesting that

participants read four personal grievance case scenarios and make a determination on

eachas if they were acting as an adjudicator in the casethen to indicate their

responses to a number of questions relating to the employment relationship in order to

determine their ideological predispositions, and finally answer a number of items for

classification purposes. Quantitative research methods are then employed to statistically

analyse and compare data from each section of the questionnaire.

The findings of this study will be of interest to all of the actors within, and those

interested in, the employment relations system. Workers and their unions, employers

and their organisations, current and former employment adjudicators, and policy

makers all have a vested interest in the determination of personal grievances in a fair

and reasonable manner. Moreover, students of employment relations and those

interested in dispute resolution also have an interest in further understanding the

intricacies of grievance adjudication decision making. While this study only examines

the decision making of grievance adjudicators in New Zealand, the findings may be of

relevance to those interested in the process internationally.

1.4.1. An Agenda

This introductory chapter has established the broad parameters of the research study,

identified key areas of interest, its importance, and relevance and significance to those

involved and interested in employment relations. In order to inform this study of the

relevant research previously conducted into the concept of ideology in employment

relations and the many factors associated with grievance adjudication decision making,

the following two chapters will review the literature on these topics. Chapter four

presents the key research questions and hypotheses formulated from the literature

review and addresses the methodology employed to empirically inquire into the topic.

The results are presented in chapter five, chapter six discusses the findings, and the

final chapter makes some conclusions and suggests future avenues for ongoing

research.


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CHAPTER 2: IDEOLOGY

This chapter reviews the literature on ideology to inform the study of the beliefs,

attitudes and values surrounding the employment relationship and the influence thatsuch beliefs, attitudes and values may have on the behaviour of actors within the

employment relations system. Ultimately, the primary ideologies identified in this

chapter will be incorporated into the survey design for the study.

2.1. Historical Overview of Ideology

Ideology was first coined by the French aristocrat and philosopher Antionne Destutt

De Tracy around the time of the French Revolution (Kennedy, 1979; Lichteim, 1965;

Stein, 1956). In their use of the term, De Tracy and his fellow French Revolutionist

philosophers were referring to what they considered to be the science of ideas, which,

in their view, formed the true formation of the sciences and construction of human

thoughts.

Soon after this, Marx and Engels (1845) introduced their interpretation of ideology

into their attack on the capitalist system. To them, ideology was considered as a

means to describe what they considered to be an exploitative class system of beliefsproduced by false class consciousness (Crowther & Green, 2004). This, they argued,

meant that the class struggle between the proletariat and the bourgeoisie resulted in

societies individuals living in a constant state of alienation (Bottomore & Rubel,

1965).

Use of the word ideology later became introduced and heavily adopted in a number

of other disciplines including the fields of psychology, physiology, anthropology,

medicine, and the political sciences (Kennedy, 1979). Of particular interest to the

present study was its adoption in the political sciences, where the term was essentially

used (and still is) as a label to describe and classify different sets of values and beliefs

held by individuals. Indeed, to this day, individuals may be considered to adhere, as a

matter of degree, to different ideologies along a generic political spectrumranging

from left-wing liberal, to right-wing conservative political ideologies (Segal, Epstein,

Cameron, & Spaeth, 1995).


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2.2. Ideology in Employment Relations

2.2.1. Origins

Although the term ideology was coined in nineteenth century France, origins of the

key contemporary beliefs, attitudes and values surrounding the employment

relationship, and thus in relation to employment ideology, can be traced back many

centuries. During pre-industrial times, for instance, attitudes surrounding the

employment relationship primarily revolved around the notion of the divine right of the

kingsa direct antecedent to the views of post-industrial conservative Catholicism.

Conservative Catholic views on the employment relationship, best encapsulated by

Pope Leo XIIIs Rerum Novarum (1891) essentially amounted to the belief that

employers have the right to act as they please, but while also mindful of an obligation

to protect and treat their employees reasonably well.

Another pre-nineteenth century conceptualisation of the employment relationship, and

thus relating to employment ideology, was provided by Adam Smiththe founding

father of classical economic thought. In his The Wealth of Nations, Smith (1776)

argued that the free market ideology should reign supreme and thus essentially dictate

the terms of the employment relationship. Employers obligations, then, were to simplyact in a manner necessary to attract and retain workers. Because Smiths work was

published near the dawn of the industrial revolution, it seems likely that those profiting

most from the significant changes of that time, namely employers, would have

welcomed his school of thought as a source of legitimacy for their employment

practices.

2.2.2. Introduction and Development

Some 150 years after its initial coining and approximately 40 years following the birth

of employment relations as an academic paradigm (Kaufman, 2004), Taft (1954)

produced the first scholarly writing expressly on ideology in employment relations.

In his work, Taft asserted that ideology would act as an inspiration to individuals and

groups wanting to fashion the world in accordance with their ideological

predilections (p. 257), and that ideology ultimately would be a factor in the promotion

and restraint of industrial conflict.


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23

That same year, Bendix (1954) made comment on the function of ideology, asserting

that it is a means to provide legitimacy for, and justify, the power and authority of

management. The following year, Kerr (1955) observed that dominant ideologies may

be held by the wider public, much like a dominant political ideology, and also that the

dominant ideology had changed over the decades. This observation, although not

empirically supported at the time, essentially introduced the notion of ideology as a

fluid entity.

Perhaps the most significant stimulus to mainstream scholarly debate on ideology,

however, was provided for by John Dunlop (1958). In his seminalIndustrial Relations

Systems, regarded widely as the most significant theoretical contribution to the study of

employment relations (Geare & Edgar, 2006; Kaufman, 2004), Dunlop argued ideology

to be a binding entity that held together an entire system of workers, managers, their

organisations, and the state. Although his discussion on ideology was later criticised

(see Bain & Clegg, 1974, and Hyman, 1972), the concept of ideology remains a

common feature in the employment relations literature, and is indeed now widely

considered to be a central concept of the employment relations paradigm (Wood, 1978).

Of most relevance to the present study, however, are the contributions that Alan Fox

made to the conceptualisation of ideology in employment relations. In addition to being

acknowledged as popularising the idea that employment ideologies are fundamentally

unitaristor pluralist (Geare et al., 2006, p. 1191)ideas that are explored in the

following sectionperhaps the most notable of his contributions relate to the

observation that ideology determines judgement, which in turn determines behaviour

(Fox, 1966b, p. 390). Indeed, if this statement holds true, the implications on research

into grievance adjudication decision making are clear. If ideology is believed to

influence personal judgement and ultimately behaviour, and if it holds a central position

in the employment relations system, it may then help to explain the reasons why actors

in the system (such as adjudicators) behave in the manner that they do.

Although making significant contributions to the employment relations literature on

ideology, criticism of these early theoretical works has been mounted on grounds that a

contribution that an understanding of ideology can play is severely limited by its

problematic use in the literature (Geare, 1994, p. 117). Leading in this criticism, Geare


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(1994) argues that this is because of broad applications of the term without definition,

or with different and deficient definitions (p. 117).

To prevent such a limitation restricting the contribution of the present research study,

then, the following section will provide a clear definition of ideology in employment

relations. It will then examine, in detail, the particular beliefs, attitudes and values

associated with different ideologies, as developed in the literature.

2.2.3. A Definition of Ideology

Early definitions considered ideology as a simple set of beliefs (Dunlop, 1958, p. 16),

a frame of reference (Fox, 1966b, p. 390), or an action related system of ideas

concerning a give reality (Horwitz, 1990, p. 10). According to Geare (1994), the main

reason why such definitions are unsatisfactory is that they fail to acknowledge that

ideology must be defined not from one level, but from a multiple-level perspective that

consists of several elements.

Thus, Geare (1994) proposed that two levels of abs

Documents

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