Looking under the rock of institutional confidentiality

Sometimes the rock can hide dreadful problems

Imagine you pick up a rock, and suddenly, for the first time, you see all the creepy crawlies underneath the rock. You put the rock back down—the creepy crawlies are now covered again—but you can’t see the rock in the same way afterwards, because you’ve seen what lies underneath.

This first happened to me in 2018, with respect to my own university. No, I can’t tell you what I saw.

Photo by serjan midili on Unsplash

Since 2018, I have had this experience on numerous occasions, in relation to several incidents, issues and people, at different academic institutions. No, I can’t tell you about these, either.

Would I like to tell you about this? Yes, I would. I can’t. I would be breaching confidentiality and privacy policies and risking an action in defamation in Australia (the most plaintiff-friendly regime in the common law countries).

I understand that these policies of privacy and confidentiality are there to protect complainants and persons subject to workplace complaints. I can see that there are numerous situations where they might be necessary, including:

• Where the allegation is baseless and the subject of the complaint is exonerated, but the nature of the complaint might lead to gossip or permanent reputational damage;

• Where the complainant does not want to be identified because the nature of the complaint might lead to humiliation;

• Where the associates or family of the subject of the complaint might be tarred by any accusation, but they are not involved; or

• Where the subject of the complaint did something wrong, but intends to learn from the experience, reform and behave better.

However, at times, these policies can make the process of a university investigation a punishment in itself, whether for the complainant or for the subject of a complaint, because it is not clear what is happening.

I may feel disillusioned at the moment. It can sometimes feel as if, in practice, these policies operate primarily to protect an institution’s reputation, and shove systemic failures under the carpet. Lack of transparency can also produce the “Watergate effect”. Even if the original conduct was not so bad, the efforts to shove it under the carpet, to pretend nothing’s happening and to stop people from talking create a far greater problem. Rumours swirl around in the absence of clear information.

As a friend pointed out the other day, this problem is endemic to all large organisations: corporations, religious organisations, government departments, schools. When someone within the organisation behaves very badly on a systematic basis, institutions sometimes suffer what a second friend has called “moral and bureaucratic paralysis.” If things eventually come to a head—as they generally do—the organisation tends to hope the wrongdoer quietly moves on, so that he or she becomes someone else’s problem. Ironically, the worst and most systematic behaviour is more likely to be hushed up, precisely because it is just so damning. The creepy crawlies are not exposed to the disinfecting sunshine and can crawl off somewhere else.

In large hierarchical organisations, it seems that sometimes, loyalty to the institution can override any duty to individuals. We can see this most clearly in the behaviour of the Catholic Church in relation to priests who perpetrated sexual abuse. When it became evident that individual priests were a problem in one particular diocese, notoriously, they were moved on to another, where they repeated the conduct.

I’m sure that universities across the globe would hate to be compared to the Catholic Church. Bad luck: the shoe fits, so wear it. All too often, an academic who has displayed sustained bad behaviour (often across multiple spheres) is allowed to jump to another academic institution, which may be unaware of the problem. I’ve spoken before about the way in which non-disclosure agreements exacerbate this problem. Universities don’t want to be the one left holding the hot potato, so they let the hot potato be tossed to someone else. “Phew! Not our problem any more. We won’t be burned.”

Here a distinction must be made between academics who have made a one-off mistake (even if it’s a grave one) and academics who have displayed sustained patterns of misconduct. It is the latter with whom I am concerned: they often use the measures designed to be merciful to the former to their advantage.

Unfortunately, when an academic who has shown to have engaged in sustained misconduct moves on, the conduct is likely to continue elsewhere. If you think I’m vague-blogging about a particular incident—think again—I have numerous incidents at different institutions in mind. I’m talking about a broader phenomenon, and likely one that pervades many different organisations, from government departments to firms to universities.

It is rightly difficult to sack someone in Australia, and due process must be followed. But this has its own issues. Damian Counsell was a union rep for many years. He came up with The Disliked-to-Dismissal Pipeline heuristic in relation to employees who are sacked:

In the UK, even as a matter of admin alone, sacking an employee is always tedious and unpleasant^. Managers do everything they can to avoid it—often including constructive dismissal (trying to drive the person to give himself/herself the sack so they don’t have to do it).

Because of this, most sackings require the additional incentive—beyond, say, criminality from the soon-to-be-ex-employee, and certainly beyond that employee’s mere incompetence—that the employee in question is unpleasant for his/her coworkers to be around.

The corollary of this is that, if you ever read or hear of someone (in this country especially) being fired, then there is a high probability that, in addition to the official reason for that person’s dismissal, no one liked having them around.

This is sad in itself and, sadder still, implies that, if you want to keep your job (especially at an employer already looking to make redundancies), it’s more important to be widely liked by your fellow employees, especially your superiors, than it is to be competent. Similarly, most of your colleagues won’t fret about your professional integrity, unless your lack of it puts their own employment at risk; and most of your colleagues won’t care about your contribution to an organisation’s aims or bottom line, as long as your shared employer is big enough that the output of your work doesn’t affect their income as well. (emphasis removed)

Cynical, yes, but I’m afraid to say that it reflects my own anecdotal impressions. First, the willingness of a superior to stand up for you can make all the difference. Secondly, unions have an intrinsic conflict between their duty to represent people who are accused of misconduct and their competing duty to protect people who are victims of misconduct and this is difficult to balance. Thirdly, I know people who are both competent and friendly—their organisations did not sack them—but they were constructively dismissed.

“Constructive” as a legal term means “implied from the circumstances.” Their lives were made utterly miserable so that they could not stay at the institutions, firms or corporations where they were employed. They quit of their own choice, but implicitly, their employer was the true force behind the dismissal, because their positions were made untenable. This is still effectively a sacking and can be unlawful under Australian law.

As he notes in his post, Counsell also came up with four laws about human conduct in the modern world. The relevant one for present purposes is as follows:

Counsell’s Second Law: The two most powerful forces known to contemporary humankind are peer pressure and the desire for a quiet life.

Sometimes, I think that I am a fool, for not choosing a quiet life, and for not going with the flow. My decisions to speak up at various times have placed considerable stress on me and my family. However, as this post shows, it seems to be something about the way I am built.

Failing to deal with the creepy crawlies under the rock—putting the rock back down and insisting everything’s fine—pollutes the broader society we live in. It is time for this to stop, whether at universities or elsewhere.