Introduction
Maybe it’s a function of age, but language is important me. In recent years ‘need’ has become a rampant replacement for a thesaurus full of words that express requirement. The statement: “You need to (insert action of choice)” has become disconnected from the necessary condition that makes the need an imperative. “If you want to do X, then you ‘need’ to do Y.”
Now ads on television promoting detective shows talk of crimes that “need to be solved.” Obviously, the crime itself has no ‘need’ to be solved, and it would be silly and pedantic to take the ad’s wording literally.
But by watering down language of requirement we can lose the power of meaning and make an obligation or duty sound like an option. Should is already soft word that is being infected by the need virus.
The Oxford Dictionary offers 3 meanings for should:
- Used to indicate obligation, duty, or correctness, typically when criticising someone’s actions.
- Indicating a desirable or expected state.
- Used to give or ask advice or suggestions.
It is hard to argue, on the basis of these definitions, that ‘should’ has any place in a statement or conversation about duty or obligation.
Why Does This Matter for Staff with Disability?
In 2015 Prof Peter Shergold, in his Learning from Failure report wrote:
The Standards says that advisers must “acknowledge” they are not authorised to direct public servants and “recognise” that executive decisions are the preserve of ministers and public servants. Comparable policies and guidance in other jurisdictions instead instruct advisers on what they “must not” and “may not” do. Such explicit directions are likely to be more effective as a guide to practice.(p. 61) (my bold)
Prof Shergold had looked in detail at several disastrous Commonwealth government actions. The passage above is just one of many problems he identified. It is “explicit directions” that are “likely to be more effective as a guide to practice.” I want to focus on.
In softer management styles, the avoidance of “must” is intended to be kinder to staff. There is a convention of amiable language that is intended to carry the imperative meaning of ‘must’ in gentler guise. The convention seems to work well is most instances – when staff are disposed to be respectful and responsive, and maybe because they rationally interpret the soft ‘must’.
But, the exceptions matter. Having told a staff member that they “should” or “need” to do a thing, it is difficult to hold them to account if they choose not to do so. Neither word means “must” by itself. The response of “Well, you didn’t tell me I must do it.” is always a defence that is open to them. Doubt is plausible. Maybe they misunderstood?
There is simply no substitute, in imperative requirements, for the words and phrases that convey that meaning in an unambiguous way. Meaning must be explicit, not implied or inferred.
In the NSW Public Service Commissioner Direction, No 1 2015 the language is quite specific:
I direct the heads of government sector agencies listed in Schedule 1 to implement The Code of Ethics and Conduct for NSW government sector employees on and from 1 September 2015, and to require employees to complywith the Code. (my bold)
Here the Commissioner directs agencies to require compliance. This is written with no leeway to interpret the words to mean other that ‘must do.’
Why does this matter?
The NSW Public Sector Code of Conduct lays out 4 Core Values. I have listed them below. Each value has 4 dot points, making 16 articulated values in all.
2.4 Integrity
- Consider people equally without prejudice or favour
- Act professionally with honesty, consistency and impartiality
- Take responsibility for situations, showing leadership and courage
- Place the public interest over personal interest.
2.5 Trust
- Appreciate difference and welcome learning from others
- Build relationships based on mutual respect
- Uphold the law, institutions of government and democratic principles
- Communicate intentions clearly and invite teamwork and collaboration
2.6 Service
- Provide services fairly with a focus on customer needs
- Be flexible, innovative and reliable in service delivery
- Engage with the not-for-profit and business sectors to develop and implement service solutions
- Focus on quality while maximising service delivery.
2.7 Accountability
- Recruit and promote employees on merit
- Take responsibility for decisions and actions
- Provide transparency to enable public scrutiny
- Observe standards for safety
- Be fiscally responsible and focus on efficient, effective, and prudent use of resources.
I have placed in italics the values that are most often violated in acts of discrimination and exclusion against staff with disability. That’s 11 in all. That’s 69% of the values.
The Code includes the following (the italics are mine):
4.1 The effect of behaviour that is contrary to the Code
Behaviour contrary to this Code and to the Ethical framework for the government sector can bring individual employees into disrepute, undermine productive working relationships in the workplace, hinder customer service delivery, and damage public trust in the Commission or the broader government sector.
It is noticeable that the effect of causing injury is not mentioned at all. Injury to reputation is mentioned. And yet it is fully understood that discrimination, bullying and abuse (all violations of the Code of Conduct) cause personal psychological and physical injury (through precipitating illness). Of course, a staff member with disability subjected to such violations also suffers reputational injury as well.
4.2 If you see behaviour contrary to this Code
If you see someone act in ways that are contrary to this Code, you should in the first instance discuss that person’s behaviour with your immediate supervisor or manager, or report your concerns to any member of the executive.
Notice here that a staff member is not told they ‘must’, but they ‘should’ discuss the conduct with their immediate manager (or next up if their line manager is the person in question) – hence effectively rendering the desired response optional. A lack of trust in the line of management will also weaken any resolve.
For employees in the Public Service, the GSE Act sets out the actions that a Public Service agency head may take where there is a finding of misconduct against an employee. These actions are as follows:
- Terminate the employment of the employee (without giving the employee an opportunity to resign)
- Terminate the employment of the employee (after giving the employee an opportunity to resign)
- Impose a fine on the employee (which may be deducted from the remuneration payable to the employee)
- Reduce the remuneration payable to the employee
- Reduce the classification or grade of the employee
- Assign the employee to a different role
- Caution or reprimand the employee.
What is absent from this list, and what I find disappointing, is imposing a requirement for an employee to undergo a developmental opportunity to address their discriminatory conduct – as part of a caution or reprimand. Just doing either alone is, I think, insufficient.
Conclusion
The most common complaint by staff with disability is a failure or refusal by a manager to treat them in a respectful, inclusive, or fair manner. In short, managers acting in violation of the Code of Conduct.
The expectation that such a violation, when reported, will be taken seriously, is very frequently unfulfilled. The move to making a formal complaint triggers a complex and unequal process that rarely works out well for the complainant. This also tends to precipitate processes that are adversarial, rather than conciliatory, and which support outcomes that are punitive rather than corrective (making the experience a developmental opportunity).
Even senior executive responses to advice of demonstrable violations of the Code of Conduct is often inadequate. Responsibility for action is understandably delegated – but it often appears that such delegation is not followed up with confirmation of effective action.
Here is where the language of a comfortable community takes precedence over the articulation of non-negotiable duties and obligations. Violations of the Code of Conduct against staff with disability are rarely met with a willingness to take unambiguous action that holds the perpetrator to account – resulting in punitive or developmental outcomes.
A staff member with disability who reports that they are subject to discrimination should not be forced to submit a formal complaint. The offense is against the agency if the matter is a violation of the Code of Conduct – since the requirement to abide by the Code of Conduct is made by the agency, not the staff member with disability.
This seems to be rarely understood. It may be a technical matter that a staff member with disability does not allege a breach of the Code of Conduct is a direct and technical way. Another potential source of misunderstanding is that maybe the staff member with disability should ‘work the matter out’ with the other party, or ‘negotiate’ with them. Neither option is incorporated in the Code of Conduct. The matter should be handed on to a senior manager or executive to deal with.
Offences against members of the public, or agency property or assets are far more likely to trigger action. Staff who fail to perform to a required standard will be put on a performance improvement plan far sooner than a manager who is abusive to staff with disability will be held to account for their failure to perform to the required standard.
It is imperative that the language of mandatory compliance is not watered down to become an optional component of a leadership role. Accountability is a core NSW Public Sector value that is so often missing in action – as testified to by staff with disability who suffer in silence, complain, and get no resolution, take ‘stress leave’ under WorkCover, or quit.
It is imperative that action is taken by those in whom is vested the responsibility for ensuring accountability.