[This article was written for National HRD Network’s magazine – its special number. I had originally submitted the blog ‘A Precipice in Front, Wolves Behind’. It was in the form of a dialogue with Lulu, my parrot. The editorial board wanted a staid article in keeping with the style of serious reading. So I wrote this, and the readers will find the cases discussed in this and the Lulu one same. But this blog (or call it article) has more (and different) discussion on the issues. Do tell me if you liked it.]
Dilemmas are the proverbial ‘caught-between-devil-and deep-sea’ situations. Usually one can see two choices, but adopting any choice by itself not a very happy situation. To complicate the matter, when you think of a dilemma, you think of Arjun and Lord Krishna at the war. It is difficult not to get influenced by the philosophical thoughts. There is something in dilemmas that raises deep questions for you. The obvious effect is one of leaving you thinking as well as disturbed, for lay persons like me spend long time searching answer till they are left exhausted.
Speaking of Bhagwadgita, I am reminded of Ashtavakrageeta. It is written by Sage Ashtavakra. Ashtavakra was a young Brahmin whose body was bent at eight places. People laughed seeing him walk. When King Janak invited pundits for a discourse, Ashtavakra’s father attended. Ashtavakra went to ‘durbar’ of King Janak in search of his father. Seeing him everybody laughed, King Janak laughed too. And Ashtavakra also laughed heartily. King Janak said, “There is a reason why we are laughing, but why are you laughing?”
Ashtavakra said, “Because I was told that this is a conference of pundits, but I see that only cobblers are assembled here! They are looking at my skin, my body but not the ‘real me.’”
While searching for a solution based on business exigencies, deliverables, due process, and dignity and rights of people we find ourselves tied in knots and bent at several places. The business manager sees the problem superficially, as a hurdle to achieving his goal, while the ER manager sees it in the context of rights and obligations, and the solution reveals the persona of the organisation.
Let us discuss some cases:
When I accidentally discovered that a certain worker [let us refer him as ‘B’] was a leprosy patient, I called him to my office. I asked him if he was indeed a leprosy patient. B confirmed it and stood still. Both of us did not speak for a while, and for me time almost stood still. I asked him if he was under treatment and discovered that he had stopped treatment. He volunteered to say that he was no longer in infectious stage. When I asked for his medical record to seek doctor’s advice on his fitness to work, he offered to resign and requested for some ex-gratia amount in addition to his dues. He said that the fact that he was called by me [Personnel Manager] was enough to arouse curiosity of other workers in the factory and it would not take much time for them to know of his ailment. Quitting was inevitable under these circumstances, he said. I recommended hospitalisation or treatment but it was undoubtedly a weak suggestion. I knew and I agreed with him that if other workers discovered his ailment they might refuse to work with him. B resigned and he was paid ex gratia payment and he left. All these actions took place in very short time.
While I had not asked for his resignation, I had felt a sense of relief that he had chosen to quit his job. I wondered if I should have persuaded B to accept treatment and rehabilitation. I knew it would be fraught with some risk on employee relations. Sometimes I wondered if that was a really any consideration at all, for if I really believed that treatment and rehabilitation was the right path, which I did, I should have proceeded with that decision. When B told me that other workers would know of his ailment, he had perhaps concluded that he had become ‘unemployable.’ But the question remains if the organisation, in the instant case represented by me, should concur with this view.
The future of a leprosy patient who loses his job is bleak, if at all that word connotes what the future holds for him at all.
It also raises the question of the employers’ responsibility towards his employees. And of human dignity and rights.
Here is another true story:
A food product manufacturing organisation employed women in large numbers, almost ninety percent of its total employees. The employees were represented by a union. Over a period, the employees got embittered with the General Secretary who was also an employee, let us call him Nakul. They joined en masse another union which was led by a leader known for his violent ways. The management had no option but to deal with the new union. Almost all employees had shifted their allegiance to the new union. All ladies too changed their allegiance. All the employees then signed a petition to the management demanding summary dismissal of Nakul. They threatened to resort to strike if he was not dismissed.
What followed can be guessed easily, the organisation terminated the services of Nakul. They later paid him some compensation and settled the issue.
It is important for any management [which is the ultimate torch bearer for all HR or ER issues] to follow the process. There is no justice without following the due process. One aspect of it is to ‘hear the other party’. Procedural justice is what management of every organisation owes to its employees. He could not be subjected to ‘trial by masses.’
The reality is that such a process takes inordinately long time. And delays introduce complications. Nakul had become unemployable. What do you do with such an employee? With the threat of an imminent strike hanging over the organisation, business considerations take priority over the propriety. Must they?
It also raises the question of the employers’ responsibility towards his employees. And of human dignity and rights.
Let us now consider another case.
Commerce vs Compassion
A fitter working in a company met with an accident, and died on the spot. He was married two years ago and his wife was pregnant with their first child. The union asked the management to provide employment to the deceased worker’s wife. Coming from a family with modest means, she was not a well-educated lady.
There were two options before the organisation: Firstly, provide a job to her. And secondly, pay sumptuous compensation, much more than the statutory liability, so that her future needs are provided for, at least in the short term.
I have seen Tatas taking the first option. This provides great security to the lady. But given the social background, and lack of skills, I have seen that they are like fish out of water. Their sense of pride takes a beating. They find it difficult to hold the job and difficult to give it up too. Yet the organisation surely shows generosity toward an ex-employee’s wife. We may say that it is the organisation’s way of atoning their failure to provide safe work place.
On the other hand, a sumptuous compensation leaves it in the hands of the lady to decide her future. Some help in the form of counselling or advice on investment can be offered but no employment. We can’t say that this is unfavourable to her in any way. Why should an organisation employ a lady who is not fit for any role within it? Why should an organisation carry a dead wood from the first day of employment?
For the decision maker, the question is what is just and fair? Isn’t justice done when he pays statutory compensation and discharges his liability? Isn’t that the limit where the employer’s liability end? What is the justification for paying more than the statutory compensation? And if more is to be paid how much is considered enough? Who takes that call?
I have seen some organisations taking the second option. It is commerce over compassion. Must it be always like that?
It also raises the question of the employers’ responsibility towards his employees. [Where does it end?] And of human dignity and rights.
Let us discuss one more case.
Discrimination and Disability
The HR Head of an organisation short-listed two ladies for the post of Chief Accountant, after a series of interviews. They were well qualified, had relevant experience, and both were ‘selectable’ on their merit. But Nilu was decidedly more suitable than Shalu. Her competencies were distinctly superior to Shalu’s. Both Nilu and Shalu were asked to go for pre-employment medical check-up. Nilu declared there that she had tested positive on her pregnancy test, and that she had learnt it after the last interview and just two days ago. The doctor noted this in his report. The HR Head made offer to Shalu, not to Nilu.
There is an issue here. Admittedly Nilu is not an employee as yet and therefore the organisation has the discretion or the power to make an offer to the person of their choice. But the dilemma arises because we examine the process of decision making. While doing so we also examine the underlying beliefs.
The decision maker wants the work of his organisation to proceed smoothly. He is entitled to such a consideration because the purpose of recruitment is to get the work done without much interruption, by a competent person. When no contract [of employment] is entered in to its violation cannot be alleged.
Another belief which also can be read in to his action is that he equates pregnancy with disability. That tantamount discrimination. Washington Supreme Court has held in the case Hegwine v. Longview Fibre Company, that “pregnancy-related employment discrimination claims are matters of sex discrimination.”
It also raises the question of the employers’ responsibility towards the society. [Where does it begin and where does it end?] And of human dignity and rights.
The Clash of Values
All dilemmas see a clash of values. Two values dearly held by the decision maker. What is a value? It is something you stand for as well as something you do not stand for. In a sense both values define his identity. When faced with a dilemma the decision maker is faced with deciding which rides over the other.
Take the ‘unemployable’ leprosy worker’s case. As a person born in a family of doctors, it pained me that I wanted the worker to receive medical treatment. As the worker pointed out, even after he was cured or even after advising other employees that he was not in the infectious stage, it would have been almost impossible to have him work in the factory. As a doctor’s son I am given to look at the patients in more empathetic way, I have valued their rehabilitation. As a business manager, I know that getting him accepted by other workmen is a herculean task. With my not-so-well-developed persuasion skills it could as well be an impossible task. As a business manager, the ‘cost and benefit’ aspect will get questioned. I get caught between concern for people and concern for results. My decision may look simple and obvious to people, but nobody will ever understand my travails unless they realise that it is a clash between two identities.
The case of compassionate employment or the case of discrimination of a pregnant woman in employment also see clashes of values. I grew up in a Tata Colony. I had seen how a lady whose husband passed away in a tragic incident was offered a job. Although it was hailed as a very good decision by all I also saw how she became a persona non-grata in that office. Incidents such as this leave a mark. We do not know how it gets ‘cooked in our personality’. When we are faced to make a decision in which we subconsciously draw on that experience we realise what we meaning made of that experience. We see compassion conflicting with allowing space, freedom to a person within boundaries set by a business manager. There is a large group of business manager who do not accept unlimited liability. Yet we hold Ratan Tata in the highest reverence because he undertook unlimited liability while providing for the victims of 26/11 terrorists attack on The Taj. So what is the right thing to do? Isn’t it all about the decision maker and the way he made meaning of his life experiences?
Let us discuss Albie Sachs for further insights.
The Outlaw and The Judge
Just in case you haven’t read this story earlier so you refuse to believe it, let me tell you that this is a true story. You are welcome to check Wikipedia.
Albie Sachs was a South African lawyer who defended mostly black people. He was declared outlaw. He went to UK and then to Mozambique where he was teaching law. SA agents placed a bomb in Albie’s car which almost killed him. He lost one hand and an eye in this attack. Later when SA gave up apartheid, he returned to SA and became the judge in the Constitutional Court. In his 15 years on the Court, Sachs helped place South African justice in the forefront of the legal recognition of human rights. His judgments are quoted in many courts outside SA.
How does he make judgments which uphold human values? Remember his experience with atrocities and his oppressive apartheid government. Yet this is what he has to say:
“Finally, the story of the story needed to be told. How do I actually make my decisions and write my judgments? When teaching a course at the University of Toronto I opened with the words ‘Every judgment I write is a lie.’ It captured the attention of the students. I explained that the falsehood lay not in the content of the judgment, which I sought to make as honest as possible, but in the discrepancy between the calm and apparently ordered way in which it read, and the intense and troubled jumping backwords and forwards that had actually taken place when it was being written. I felt a need to dispel the notion, induced by the magisterial tone we judges conventionally adopt, that judgments somehow arrive at their destination purely on rational autopilot. This led me to find out that there were at least four different logics involved in any judgment I wrote: the logic of discovery, the logic of justification, the logic of persuasion, and the logic of preening. And ultimately my thoughts went to the relationship between reason and passion, then to the concepts of human dignity and proportionality: these interconnected and indivisible concepts ran right through the book.
Having grown up in the tradition of the enlightenment I am loath to embrace anything associated with alchemy. But I readily acknowledge that many of the processes that affect our decisions do so in mysterious ways that though not unfathomable in principle, in practice are rather difficult to define. The way life experiences enter into judicial pronouncements, or at least, into my judicial pronouncements, falls into this category. So I simply state that although the alchemy between my oversaturated life and the intense work I do on the Court is strange, it is none the less full of challenge, bafflement and delight. And if the question which emerged from writing this book is ‘How do life experiences affect the legal decision making?’ the answer is ‘In unexpected ways.’
Just as the legal decisions are finally judged by the Supreme Court, the decisions of ER manager – I am using this description to include business managers who make the decisions affecting people – are judged by employees. They speak their approval or disapproval by communicating their happiness or by ‘their feet’. It is here that ‘the logic of discovery, the logic of justification, the logic of persuasion, and the logic of preening’ which Albie Sachs refers comes into play. The fact is that too little communication much less discussion happens with employees on such critical cases. These discussions create bonds with organisation even if the employees register disagreement. Lack of communication, lack of discussion deprives opportunity of creating a discussion on what we stand for and what we do not stand for – or in other words, deeply held values. Without such a discussion also a decision that does not appeal to the employees may have merits, ‘but it is no more a decision than a mule is a horse. Alas, all of us, HR managers from time to time give birth to these unsatisfactory hybrids.’ These dilemmas create persona of the organisation and also answer employees’ question ‘what if it happens to me.’
There are no easy answers. In a dilemma a right is pitted against a right. The decision maker must follow his conscience. Yet he must act responsibly. I understood the word responsibility in a new light when I read Osho. He says, “The fact is that “responsibility”, the very word, has to be broken into two words. It means “response ability”. And response is possible only if you are spontaneous, here and now. Response means that your attention, your awareness, your consciousness, is totally here and now, in the present. So whatever happens, you respond with your whole being. ….This ability to respond is responsibility.”
The decision maker is the final arbiter of these dilemmas where he is to make a choice between two difficult options. Nobody envies him. He shapes the personality of the organisation; he reveals his own. Yet, he is like a matador who is like proverbially ‘on the horns of dilemma’ neither horn of the bull being comfortable.
Those are wages of leadership!
Vivek S Patwardhan
 Albie Sachs in ‘The Strange Alchemy of Life and Law’ p 7-8.
 Adopted from W. Somerset Maugham’s statement ‘A play that does not appeal to an audience may have merits, ‘but it is no more a play than a mule is a horse. Alas, all of us dramatists from time to time give birth to these unsatisfactory hybrids.’ The Summing Up
NOTE: This article was written for NHRDN’s special number published in April 2017.