The "stupid" defence

If by a willful act you injure another, your act is a much more serious transgression than if the act was unintentional.

The claim of mistake rather than misconduct — ignorance rather than intent — has become a regular refrain of some universities to explain management conduct, in rebutting workers' claims of the resulting psychological injuries. It's become common enough for it to be given a nickname: "The 'stupid' defence" — although it doesn't look like this is the first coining of the phrase. (We'll leave for another day a discussion of the quirks of Queensland's worker's injury insurance scheme that seems to prompt the tactic.)

You might think that some sense of shame (or even some expression of regret) might attend the making of such claims, but I haven't been seeing either.

But more to my point for today, how do we deal with ignorance (whether claimed or real)? Well, it's a university. What could be more appropriate than a bit of education?

The "stupid" defense works when those who are affected, wrongly assume that the actions speak for themselves. But, as we've seen, often they don't. Those affected (or the union) need to make the injurious effects clear at the time. An email, for example, could say:

My doctor has told me that I'm under unusual stress and that it appears to arise from your recent, negative characterisations of my work in open staff meetings.

Of course, such advice might be an adjunct to a bullying complaint.

In skating over thin ice our safety is our speed.
—Ralph Waldo Emerson (1803-1882)

Corroboration

Corroboration is independent evidence that supports the existence of some claimed fact or act. "Independent" being an essential element. And, corroborating evidence may be either circumstantial or direct—but direct is better. There are a few twists and turns that might apply in a courtroom, but in the workplace it's relatively straightforward.

But it's not the concept that's my focus here, it's the practice.

It's great when corroboration is already concrete: a letter, an email or the minutes of a meeting, for example. But often, the desired corroboration is witness testimony.

On occasions beyond counting, members have assumed that because some behaviour or some words were witnessed by their colleagues, that corroborating testimony was going to be automatic; but it wasn't. The (big 3) short-list of reasons is:

1. Claimed poor memory of the event,
2. claimed inattention at the time, or (sometimes more honestly)
3. a desire not to become involved.

If it looks like you'll need corroborating testimony, speed is essential. Contact the Union so that the independent testimony can be confirmed before memory and resolve fade.

For example, the pursuit of the evidence might require a telephone call followed by an email asking:

My recollection from the meeting this morning is that Joe Bloggs made a comment about my coordination of the project, saying:

"I have nothing against girls; but it's been a problem ever since they allowed them into leadership jobs like this one. "

Is that your recollection as well? If not, could you let me know what you remember?

Never ask a witness to characterise the words or events. All you need it the confirmation of the facts. A confirming email is usually evidence enough, but if testimony is required later the email becomes an aide-memoire.

It is a rare mind indeed that can render the
hitherto non-existent blindingly obvious.
The cry 'I could have thought of that'
is a very popular and misleading one,
for the fact is that they didn't,
and a very significant and revealing fact it is too.
—Douglas Adams (1952-2001)