In early March this year, a teacher who was in dual capacity of a school librarian and Chinese teacher (“Teacher”) from a school in Hong Kong fell to death from a building in the school campus. It was reported that the Teacher had a meeting with the school principal the day before her death and she was seen leaving the principal’s office in tears after the meeting. She subsequently went to the Complaints Office of the School Sponsoring Body but she could not file a complaint as the officer was away from office. Some teachers from the school had hinted at communication problems between the Teacher with the school management.
The family members of the Teacher said that she was under a lot of stress at work. The convenor of a School Librarian Group in Hong Kong (Lau) also said in a radio programme, “The greatest feature of the job as a school librarian other than it being very demanding – is that no one, from your principal and programme leader to your ordinary colleagues, really understands what you are doing.” Lau added that “This is a job of conscience … You are the only person who knows how bitter your life can be.” She mentioned that the school librarian has been subject to overwork. He/she often needs to work overtime and even makes sacrifices for time off work or vacation planned.”
The school sponsoring body has now set up an independent panel to investigate the incident. Given the current information available, it is apparent that the Teacher had different issues at the workplace, including communication with the superiors, workload or even workplace conflicts. This article will examine the existing mechanism of the public schools in Hong Kong in addressing workplace issues, the problems in relation to those mechanisms and how they can be adequately addressed so that workplace conflicts and issues can be better managed in the future.
The current system and its problems
Currently, if a teacher or a staff member at a public school has conflicts or issues with another colleague, there are several ways that such member of staff (“Claimant”) can bring up or even escalate the matter with the administrator of the school or government authority:
a. Making a complaint to the school in accordance with the designated complaints procedures formulated by the school.
b. Filing a complaint to The Council on Professional Conduct in Education, if the Claimant is a member of the teaching staff.
c. Filing a complaint with the School Sponsoring Body (SSB)
d. Filing a case with the Education and Development Bureau (EDB).
The above complaints management system/procedures denote the following characteristics:
a. It is a formal mechanism, characterized by written records and statements, stringent procedural steps, an inflexible time frame and the parties’ substantiation of their respective case by evidence.
b. It is adversarial and confrontational where the parties make representation to the panel of decision makers with a view to convincing the decision makers that one is right and the other is wrong.
c. The parties lose control to the inquiry panel or decision makers which control the process, makes finding of facts, and decides on the final outcome of the dispute.
d. The procedure itself incurs a lot of time, costs and stress. The parties will be unlikely to have an opportunity to discuss the dispute directly with one another and as a result the relationship between them will likely be damaged.
From the filing of a complaint up to the time of the hearing, the parties involved in the dispute continue to meet and encounter each other at school. The atmosphere amongst members of the staff involved may become acrimonious. The relationship, not only between the disputants but amongst the other colleagues, may grow tense and uneasy. Very often, the productivity of the staff involved will be impacted when the conflict continues. It may lead to absenteeism of the disputants involved, or disputants come to work when they are not entirely fit to do so. The current problem may escalate or even bring about further conflicts.
The right-based nature of the current process also fails to take into account the interests and relationship of the parties. The outcome available under the complaints procedure will be win/lose and lacks creativity. The relationship between the parties, after the final determination of the dispute by the panel, may even worsen. At times when the conflict becomes publicized, it also tarnishes the reputation of the school.
Further, not all public schools have an internal complaints system. If a school does not have a complaints procedure in place, a Claimant may lodge a complaint with EDB which will be handled by the regional education office where the school belongs. However, it is often found that such regional office will direct the relevant school to deal with the case on its own on the basis of school-based management policy. Accordingly, when a complaint is made against the principal of the school or its management personnel who is charged with addressing the complaints, it is questionable whether the complaint is handled fairly and appropriately and may raise concerns of conflict of interest.
Given the shortcomings of the existing complaints system, EDB needs to explore alternative solutions to address such issues. It is advocated that establishing procedures to allow intervention by organizational ombuds may fill the vacuum in the current complaints systems.
An organizational ombuds serves as a conflict resolution specialist in an organization. According to the American Bar Association, Standards for the establishment and operation of Ombuds offices, the role of organizational ombuds is to “facilitate fair and equitable resolutions of concerns that arise within the entity.” It goes further to describe the functions of organizational ombuds as follows:
· “To undertake inquiries and function by informal processes.
· ..To conduct independent and impartial inquiries into matters within the prescribed jurisdiction of the office..
· ..To issue reports…
· ..To advocated for change within the entity.
An ombuds’ work and position are built on four cardinal principles. They are:
The International Ombudsman Association (IOA) Code of Ethics provides that “The Ombudsman is independent in structure, function, and appearance to the highest degree possible within the organization.’
Though the ombudsman is employed by an organization, he does not belong to any part of it and does not participates in management functions. He reports to the highest level of the organization. He is not an office of notice and is not obliged to report anything that comes to his knowledge to the management as a result of his position.
The ombuds shall also function independently without any control, interference of any other officials in the organization and has sole discretion as to how to act when visitors come and seek help in his office. Furthermore, to protect an ombuds’ independence of its office, he should be afforded access to outside counsel when his independence is challenged.
Neutrality and Impartiality
The IOA Code of Ethics provides that an ombuds has to remain unaligned and impartial, not to engage in any situation which creates any conflict of interest. Hence, the ombuds should not be taking any other position in the organization that will compromise his neutrality or be perceived as a conflicts of interests with his status as ombuds. The ombuds should assure that all members of the staff are entitled to consult with him and he will act fairly and impartially towards the people coming to his office to seek assistance. He should treat them with respect and dignity but should not advocate for any individual in the organization.
The neutrality and impartiality of the ombuds role are further enhanced by the fact he does not report to any person other than the board of directors/highest level of authority. He does provide feedback to the organization regarding trends or other information that may help the organization improve and become more aware of issues and challenges that must be addressed. However, this feedback is always done in a way that protects the identity of those who have spoken with the ombuds.
Further, an ombuds could provide visitor with information on possible options, resources available in the company to resolve the problem, or even explore or assess those options. It is only when the visitor needs advice or guidance to make decision that an ombuds will do so.
An ombuds should keep all information shared by those seeking assistance in strict confidence and will not reveal the identity of any person seeking assistance unless that person gives their permission to do so. Similar to mediation, the principle of confidentiality is a predominant reason for people seeking help from ombuds. This enables visitors to feel safe to discuss issues without the fear of retaliation.
Even when a visitor gives permission to the disclosure of information, it will be limited pursuant to the extent of permission. The only exception permissible under the IOA Code of Ethics is when it appears to the ombuds that there will be imminent risk of serious harm to any person. This is typically interpreted as physical harm such as someone harming themselves or another. The Ombuds is obliged to decide whether a particular situation gives rise to such risks.
Further, the office of ombuds should be located where the privacy of the visitors to his office could be protected. IOA Best Practices also provides that an ombuds is obliged to keep all information collected in the course of duties in a secured place and should not be accessed by anyone except those from the ombuds office.
The ombuds shall not participate in any formal adjudicative or administrative procedure in relation to those matters brought to him. The ombuds uses first and foremost, informal means, such as listening, providing and receiving information, identifying and reframing issues, developing a range of responsible options. The significance of the informal nature encourages employees to go to the ombuds office to raise issues and concerns, and makes it easier to suggest interest-based options for conflict management. The ombuds may reach out to others involved in order to help resolve a conflict if given permission. Ombuds supplements but does not replace any formal channel, and it is not a required step in any grievance process or organizational policy.
Services and functions of organizational ombuds
An organizational ombuds provides a wide range of services and functions for dealing with workplace issues. This includes but not limited to, counseling, acting as an informal go-between and facilitator. Sometimes, the ombuds will act as a formal mediator between the disputing parties. The ombuds serves as an upward feedback-mechanism or even a change agent, when he makes recommendations to the management based on the trends of issues and disputes.
According to the research of the ombuds practitioners, the first step usually taken to assist others is “careful, attentive listening and the development, with the (you use different ways to name the ‘visitor’ of a clear definition of the concern or complaint.” At this stage, the ombuds will identify with the visitor his underlying interests and define goals that he would like to achieve in resolving the issue/complaints.
The next step in the process will be brainstorming options by the ombuds together with the visitor, where they will assess the advantages and risks associated with each option, prioritizing them and arriving at an action plan to achieve the goals. From time to time, some ombuds will support a direct attempt at resolution by the visitor. Other approaches in dealing with the problem may include meeting up with the respondent by the ombuds, convening mediation between the relevant parties, or facilitating joint meetings of the parties. Sometimes, the ombuds may resort to generic options such as conducting training that this is geared towards dealing with a category of cases, or refer the visitor to use other company’s resources.
Establishing an ombuds programme into the existing mechanism (“Program”) and its key features
1. It is advocated that the EDB should establish an ombuds program for managing and dealing with workplace conflicts and concerns of all the public schools in Hong Kong. EDB could establish a panel of ombuds who can be deployed to different locations. The ombuds services can be called for when they are required by the schools. The Program shall exist in parallel with the current complaints system and aims at providing this complimentary option to members of staff in the public schools when they encounter challenges in the workplace.
2. Under this mechanism, the ombuds are not engaged or attached to a specific school. There is more flexibility in the deployment, and it will not add to the financial burden to individual schools. At the same time, the members of staff, teaching or non-teaching, will be able to resort to an independent source of personnel who are conflict resolution specialist to deal with workplace problems or issues. It is a caring human resources policy, and the rights and interests of the staff in the Aided Schools are better supported.
3. The ombuds engaged will report to a senior executive in the EDB, who shall oversee the operation of the Program.
4. Regarding the qualification of the ombuds, the standards required by IOA can be adopted as an appropriate reference. To be qualified as an ombuds certified by the IOA, one needs to complete a five days foundation course which will be followed by satisfactory completion of an assessment. Such prospective ombuds will then need to accumulate work experience as an ombuds for at least one year (full time) or 2000 hours in practice as an organizational ombuds before he can be eventually qualified as an IOA Certified Ombuds.
What could have happened to the Teacher if an ombuds program were in place?
Had the case of the Teacher and the school been handled by an ombuds at an early stage, the ombuds could have been able to intervene at an early stage in the following manner:
a. Assuming the Teacher made a visit to the ombuds on her own initiative, the ombuds could have intervened by using informal means of listening to the Teacher’s concerns and issues encountered in her work. The ombuds might have explored with the Teacher her underlying interests and goals if the conflict and work issues were to be resolved. The confidential setting of the process could have enabled the Teacher to be open and candid in speaking up about the underlying dispute with the principal.
b. With the permission of the Teacher, the ombuds could have contacted the principal to obtain a full picture of the conflicts from the perspective of the principal. In this unique position, the ombuds would have been able to diagnose the conflict or identify resources or options for solving the problem.
c. Upon hearing the stories from both parties, the ombuds could have, based on the interests and goals of the parties, devised an appropriate strategy for further intervention, such as coaching or even counseling for either party, continue the process by shuttle diplomacy or even arranging mediation between the parties.
Though it cannot be guaranteed that issues of the Teacher could have been resolved in its entirety, or she would have acted otherwise when the service of an ombuds had become available, at the very least, she could have enlisted his assistance, and had a neutral and impartial third party listene to her concerns and issues in a confidential setting without the fear of retaliation. Furthermore, from the perspective of the school, it could have benefitted by the ombuds’ reporting of issues and trends which afforded the school an opportunity to address them early before the issues escalated into a lawsuit, damaged the morale or exacerbated the productivity of the staff.
The incident of the Teacher was disastrous and caused irreparable damage to the Teacher’s family, the school and the students. All the stakeholders in the education sector should reflect over the incident in order to diagnose what caused the incident, identify the shortcomings of the existing complaint system and procedures in order to design a suitable mechanism to address workplace conflicts and disputes in the future.
Ms. Jody Sin is a solicitor, the chairperson of Hong Kong Mediation Council (a division of Hong Kong International Arbitration Centre), and an accredited mediator of Hong Kong International Arbitration Centre. She is also an adjunct lecturer with the University of Hong Kong School of Professional and Continuing Education (HKU SPACE), teaching accredited mediator courses in Hong Kong, workplace mediation and other courses in relation to the application of mediation. Jody has been actively promoting the use of mediation in Hong Kong. She is a member of the Public Education and Publicity sub-group under the Mediation Steering Committee of the Secretary for Justice. She is also a member of Mediators Admission Committee and Mediation Committee of the Law Society of Hong Kong.