Surprise party

If you're called to discuss serious allegations made against you, which, if proven, would constitute improper conduct, the desire to offer an immediate defence is almost overwhelming. Don't!

Keep your wits about you. Make the meeting an exercise in careful listening — not speaking. Don't pass up your opportunity to:

• Hear what your head believes are the circumstances;
• find out how seriously the matter is viewed;
• get copies of any relevant, already existing documents.
  

Some hints:

• Take careful notes.
• Don't rely on human resources to protect your interests. (Human resources exists to help your boss manage you.)
• Don't ask for anything to be put into writing that isn't already.

Finally, when you're asked to respond, say:

"Is there anything else that you think I should know about this? [Pause] This needs careful consideration and, of course, I'll be taking some advice. Because of the nature of the concerns I'll be seeking Union representation. Thank you, then, for letting me know your concerns. As soon as I've been able to check on the availability of a Union representative I'll call to set the date and time for our next meeting. [Stand up, smile, shake hands.] Thank you." [Leave.]

Call the Union. ▪

Why can we remember the tiniest detail
that has happened to us,
and not remember how many times
we have told it to the same person.
—François de la Rochefoucauld (1613-1680)

"Without prejudice"

It's important that disputing parties be able to seek a settlement without the fear that good-faith offers might, subsequently, harm their cause. Using the phrase, "without prejudice" ensures that the offer to which the phrase is attached may not be tendered as evidence later: The offer becomes "privileged." (The Australian Taxation office provides some concise advice on this.)

Recently, I sent an email to a human resources officer recounting the problematic treatment of a member. At the end I made a "without prejudice" offer of settlement. The officer, seemingly uncomfortable with the claims about the treatment, advised in reply that he was "treating [my email] as a being “Without Prejudice” in its entirety."

It doesn't work that way.

The "without prejudice" proviso only relates to offers of settlement in negotiations, and not to statements of fact or to confessions. You wouldn't gain protection by saying, for example, "Without prejudice, I just burnt down the chancellery."

In the USA, by contrast, it's generally accepted that arbitrators shouldn't consider earlier offers of settlement as evidence — a simpler approach. (The phrase is used by Americans, but usually in the context of judgements and whether defendants may be subject to further litigation.) ▪

When nations grow old, the arts grow cold
and commerce settles on every tree.
—William Blake (1757-1827)

Fidelity and good faith

You won't find the duty of fidelity and good faith to the employer as a heading in your agreement or contract. You will, however, often find potential issues arising from that duty enumerated in organisational policies or 'Codes of Conduct.'

The duty of fidelity and good faith imposes a responsibility on employees to refrain from conduct that might injure the employer's business. Commonly this translates into matters of confidentiality and (alleged) negative comments about the employer.

The duty is affected, of course, by some of the special circumstances of the university context — academic freedom (for academics, anyway) being the most striking example. And, in public institutions there may some duties as a public servant that affect the duty of fidelity and good faith to a particular organisation.

There was a useful article on "Your Duties to Your Employer," by APESMA Industrial Officer, Katrina Lovett. (While the original article seems to have become unavailable, I have reproduced a relevant excerpt.) But you should be aware that the issues can be complex and where questions arise it's essential to get advice appropriate to the university sector. (Your union is your most likely source.)

At the same time there is a mutual 'obligation of trust and confidence.' That, however, will have to be a topic for another day. ▪

The real world is not easy to live in.

It is rough; it is slippery.

Without the most clear-eyed adjustments

we fall and get crushed.

A man must stay sober: not always, but most of the time.

—Clarence Day (1874-1935)