01 October 2013

Further information concerning the Motion being put to Board this Friday


In light of the recent online discussion surrounding the motion being put to the Board this Friday, here is a statement clarifying the rationale behind proposing this motion:


Why is this motion being proposed?



This motion is being proposed because it is the opinion of the remainder of the Executive that Tom has breached the USU's Regulations and Directors Duties by deliberately disclosing confidential information to Honi Soit.  We consider Tom to have breached his fiduciary duty to the USU as well as made an improper use of information, both of which are serious breaches of the duties he is bound by as a Director of the USU.

 


Why is Tom Raue not being censured again?

 

The USU's Regulations state:



3.1.3. Failure to adhere to the Constitution, Regulations and/or Duty Statements may be acknowledged by a motion, carried, censuring the Director in question. Further failure by a Board Director to adhere to the Duty Statements may be brought before the Board provided the breach contemplated is clearly ascertainable and evidence thereto is supplied before the Board.



3.1.4 Upon satisfaction of clause 3.1.3, the Board may then decide:
(a) by Special Resolution only, that the Director in question is guilty of misconduct and shall cease to hold office. This shall apply in the case of a serious breach to the Constitution, Regulations and/or Duty Statements, such as a breach of fiduciary duty, abuse of corporate opportunity, disclosure of in camera proceedings, or systemic failure to attend meetings.



Tom was previously censured by the Board in August 2012. The Executive considers that in this instance, Tom's failure to adhere to the USU's Regulations and Duty Statements is of a serious enough nature that warrants the enactment of section 3.1.4 (a).





What was the nature of the confidential information Tom leaked, and why was it confidential?



The information Tom leaked was from a confidential report compiled by the USU's Director of Human Resources investigating a grievance raised by a USU staff member. Tom leaked a quote from a USU staff member that was made during an interview with the Human Resources Director. This report was an internal USU Human Resources document. 

The USU has a Handling of Grievances policy that outlines the processes surrounding workplace complaints. This policy exists to ensure that staff feel safe making workplace complaints and that their privacy is protected.

Section 2.1.3 states:



2.1.3. Everyone involved in the resolution of the complaint (including the complainant, the respondent, support people and witnesses) are required to keep the matter confidential. Breaches of this requirement may result in further disciplinary action being taken.



Tom was involved in the resolution of this complaint and was required by this policy to keep the report confidential. 


This breach of confidentiality directly undermines the assurance of strict confidence and confidentiality given by the Human Resources Director to the staff member whose quote Tom provided to Honi Soit.


Was Tom made aware that the information was confidential?



Yes, he was. Before releasing this information Tom contacted the President stating his intention to send it to Honi Soit, and the President requested that he first speak to the USU's Human Resources Director to discuss issues of confidentiality. Tom was made aware by the Human Resources Director of the confidentiality of this report, and he was also made aware of this by the remainder of the Executive. 




What section of the Regulations and Directors Duty Statements is Tom alleged to have breached?



Tom is alleged to have breached-



Regulations:


3.1.1. All Board Directors shall act in accordance with the Duty Statements for Board Directors



Duty Statements:


1.a. Directors shall comply with their roles and responsibilities as prescribed by the law and as outlined in the Institute of Company Directors Publication “Duties and Responsibilities of Company Directors” viz:

(a) Fiduciary duty to the USU and its members

(d) A duty not to make improper use of information



Fiduciary duties are not expressly defined in the Regulations, however under common law in Australia, fiduciary duties for Directors include:



Duty to act bona fide (in good faith) in the interests of the 
organisation as a whole

Duty not to act for an improper purpose

Duties of care and diligence

Duty to retain discretion

Duty to avoid conflicts of interest

Duty not to abuse corporate opportunities



Fiduciary duty to the USU includes complying with USU's Constitution, Regulations, Duty Statements, policies and processes, which are deemed to be in the best interests of the USU as an organisation. This would also include the Handling of Grievances Policy. 

Improper use of information involves using the information for a purpose outside of which it was intended. In this instance, Tom Raue was provided this report by the Human Resources Department to assist in the resolution of an USU staff member grievance.


 


What is the decision the Board will be making on Friday?



The Board will be determining whether Tom's deliberate disclosure of confidential information, in accordance with section 3.1.4(a) of the Regulations, finds that he is- "guilty of misconduct and shall cease to hold office. This shall apply in the case of a serious breach to the Constitution, Regulations and/or Duty Statements, such as a breach of fiduciary duty, abuse of corporate opportunity, disclosure of in camera proceedings, or systemic failure to attend meetings."


For the remainder of the Executive, bringing this motion to the Board is a decision that has not been taken lightly. The USU Board is committed to ensuring a fair workplace where policies and procedures ensuring staff privacy are respected by all, especially Board Directors. Tom's disclosure of confidential information has undermined this. 


Hannah Morris
President

3 comments :

  1. Further, actual information concerning the Motion being put to Board this Friday

    "Your" USU Board yesterday posted an article titled "Further information concerning the Motion being put to Board this Friday". Rather than providing further information, though, the article provided an exceedingly weak and prejudiced case against Tom Raue. The article, posted on the official USU website, should plant serious doubts in any reasonable mind about the impartiality and fairness of the Board's forthcoming deliberations.

    The article uses the Royal "we", ostensibly on behalf of the entire Board, to draw conclusions such as "we consider Tom to have breached his fiduciary duty to the USU as well as made an improper use of information, both of which are serious breaches of the duties he is bound by as a Director of the USU." This language is explicable only by reference to the terms of the USU's governing documents, into which certain members of the Board are attempting to fit their arguments in an anti-democratic attempt to remove Tom.

    It is an uncontroversial proposition that a person ought not be removed from a democratically elected office unless exceptional circumstances exist, which are here defined by the aforesaid documents. The USU's Regulations state:

    3.1.3 Failure to adhere to the Constitution, Regulations and/or Duty Statements may be acknowledged by a motion, carried, censuring the Director in question. Further failure by a Board Director to adhere to the Duty Statements may be brought before the Board provided the breach contemplated is clearly ascertainable and evidence thereto is supplied before the Board.

    3.1.4 Upon satisfaction of clause 3.1.3, the Board may then decide:

    (a) by Special Resolution only, that the Director in question is guilty of misconduct and shall cease to hold office. This shall apply in the case of a serious breach to the Constitution, Regulations and/or Duty Statements, such as a breach of fiduciary duty, abuse of corporate opportunity, disclosure of in camera proceedings, or systemic failure to attend meetings.

    ReplyDelete
  2. (continued, 2/3)

    One will immediately note that a "serious breach" must be established. Several examples are given. Tom does not fall into any of those examples. The Motion accuses Tom of breaching a fiduciary duty, but this is certainly not "clearly ascertainable" nor does it appear that expert "evidence thereto" has been supplied to the Board. The best that certain members of the Board have been able to do, in an attempt to make out their case, is to quote certain general Common Law rules. Unfortunately for Tom's detractors, to quote a rule does not a man guilty make.

    So it is that Tom's would-be deposers move quickly to their second allegation—that Tom, contrary to his Duty Statement, made improper use of information. They admirably establish that the quote in question was confidential according to the terms of Board policy. They further establish that Tom has breached that policy. Yet they do not appear to grasp that Tom must be found guilty of a "serious breach" of the terms of the USU's governing documents. The policy in question does not form part of those governing documents. It is not in the Constitution, nor is it a Regulation, nor a Duty Statement. The only thing that the policy can tell us is that the information that Tom leaked was "confidential" according to Board policy.

    It is at this juncture that Tom's accuser's fail in their quest to depose Tom. They assume, without further inquiry, that Tom has improperly used information according to his duty statement. And even if he has improperly used information, it must be improper use of the order that it amounts to a "serious breach". Clearly, not every improper use of information amounts to a "serious breach" in the sense required. If, for example, a Board director learned that a food outlet was about to discontinue their favourite candy, and rushed to that outlet in order to purchase every last one, that director has improperly used information to gain personal advantage. Yet no one could seriously suggest that the hypothetical director could be Constitutionally deposed because, 12 months earlier, they had been censured for stealing a USU pen.

    Of course, Tom's use of information was of a different nature. Was it "improper" in the sense required? And if so, was it such as to amount to a "serious breach"? These are the questions that the Board should be asking.

    Tom's accusers have omitted the following duty from their deliberations:

    (ii) Duty of care and diligence

    Tom encountered information that revealed collaboration between university management and the NSW police force during recent industrial actions. Tom knew that further industrial action was (at the time) imminent. He further knew, from first hand experience, that police brutality at the picket lines was a real threat. Tom's duty of care and diligence demanded that USU members be informed of this collaboration, so that they could make an informed decision about their participation in this industrial action. This use of information was arguably consistent with Board policy, since the Board clearly cared about the welfare of member's at the picket line; for the previous industrial action, the Board decided to provide food and water to those members involved. Tom's use of information was in breach of confidence. However, he was clearly required to do what he did in the discharge of his Duty Statement. So, while it may be argued that Tom's use of information was "improper", it cannot seriously be argued that it amounted to a "serious breach" of his Duty Statement.

    ReplyDelete
  3. (Continued, 3/3)

    Moreover, despite asserting that "bringing this motion to the Board is a decision that has not been taken lightly", the Board can be seen to be rushing to a conclusion on what is a serious matter by providing only the minimum four days notice for the Special Meeting, and holding it on a date when Executive is quite aware that not all of the Board will be able to attend. This is a clear abrogation of democracy.

    The aforesaid article claims that the present anti-democratic scheme that has been concocted by certain Board directors has not been embarked upon lightly. Yet it is plain, from even the most uninformed vantage points, that something fishy is going on. The entire process is not a process at all—it is a crusade to remove a democratically elected director. One may even venture to say that certain members of the board are in patent breach of their Duty Statement ((c)(ii)) by allowing personal preferences or differences to impede their work as directors. One may venture further and suggest that personal ambition is at play. Speculation aside, it may be fairly concluded that due process, fairness, and democracy have been put to one side by many on the USU Board. For that, they should be ashamed.


    Edward McMahon and Fahad Ali

    (Original text found here: https://www.facebook.com/notes/fahad-ali/further-actual-information-concerning-the-motion-being-put-to-board-this-friday/10151758571604442)

    ReplyDelete

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