Black hole

Any error arising within a promotion process should be remedied, if possible, before the panel makes its decision.

Appeals against failed applications for promotion have been referred to as the black hole of university-sector industrial relations. And there are reasons for that view.

Most often, either agreements or policies limit such appeals to grounds of procedural error (or bias) — rather than on the merits of an application. This limitation derives from a belief that it's inappropriate to second-guess necessarily subjective assessments. In other words, it's accepted that it's impossible to exactly and reproducibly quantify the relative merits of "knowledge worker" applications.

But even if we didn't accept the above presumptions, it's useful to predict the unwillingness of a judge, commissioner or other arbitrator to supplant his or her view (or logic) for that of a university-level, specialist, peer-review panel.

Assuming the constraint, even if there's been a demonstrable, procedural error, the appellant's troubles aren't done: There's a burden to show that any error was sufficiently serious to have affected the outcome.

And then, finally, if there has been procedural error and it has been of sufficient gravity to have potentially affected the outcome: What's the remedy?

A likely decision is to refer the matter back to the original panel to reconsider the decision absent the element that gave rise to error.

Of course they're happy to see the application again.

Reputation is an idle and most false imposition;
oft got without merit, and lost without deserving.
—William Shakespeare (1564-1616)

Never going to make it

Aggrieved members often relish the opportunity to put their matters to an impartial arbitrator.

Allow me to digress and forgive me for repeating an old joke.

There's martial law — and a midnight curfew. At 5 minutes to midnight two military police stop a bicyclist and ask for his ID. After a moment of inspection one of the MPs pulls out his sidearm and shoots the bicyclist dead. The other MP is shocked and reminds his colleague that it isn't midnight yet. In reply the shooter holds up the ID and says, "Look at his address, he was never going to make it."

I was reminded of this story by a recent AIRC decision where a dismissed employee hadn't been afforded procedural fairness. In that decision the Commissioner (the former secretary to the royal commission into the building industry, and before that assistant director of the Business Council) wrote:

Whilst the termination process did not include adequate opportunity for [the dismissed employee] to provide his employer with reasons why his failure to accept [the boss's] decision should not result in the termination of his employment, the evidence and submissions in these proceedings and my observations of [the employee's] conduct during the proceedings leaves me in no doubt that if the process had involved such opportunity, the outcome would have been the same.

Bang.

By the way, the employee represented himself.

When the boss rides in on a white horse,
somebody else needs to bring a shovel.
—Yllib Ybnad (b. 1948)

Resignation withdrawal

Once a year, or so, I hear the question, "Can I withdraw my resignation?"

In general, once a resignation has been lodged withdrawal may only be with the consent of the employer. My advice, therefore, is that resignation is deadly-serious business. Don't resign unless you mean it.

Whilst there are some potential exceptions, I cannot express forcefully enough how difficult it is to succeed with cases based on their invocation. It doesn't hurt to ask, however, so in that context, here are the three circumstances that might affect the validity of a resignation:

• emotional state,
• duress, or
  
• incapacity.

Emotional State A resignation tendered in the "heat of the moment" might be withdrawn if the withdrawal was immediate (that is, in the same breath) or made very shortly thereafter. (The chances are inversely proportional to the amount of time that passes.)

Duress For example, a threat that, "If you don't resign, we will fire you and withhold your accumulated super," might be regarded as duress.

Incapacity If, for example, an employee resigned while affected by a dis-inhibiting prescription medicine, that resignation might be invalid.

Popular, but practical, follow-up questions include:

• Is a resignation that gives less than the agreement or award-required notice still effective? Yes; but you may be subject to withheld wages, withheld accrued benefits, or even action at law.
• Can the employer rely on a verbal resignation? Yes; but as with all things verbal, there may be a disagreement about exactly what was said.
  
• If the employer has failed to confirm a resignation, is it still in force? Probably.

Revenge is sweet and not fattening
—Alfred Hitchcock (1899-1980)