Conducting Disciplinary Proceedings

Natural justice

The fundamental principles which apply to disciplinary action by clubs against members are the principles of natural justice, now often referred to as procedural fairness.

In essence, a member of a club should not be disciplined unless:

1. The member has been given proper notice of what is alleged against them
2. The member has a reasonable opportunity to prepare a defence; and
3. The member is given an opportunity to respond to the charge before an unbiased and objective tribunal.

Prior to the meeting

A notice must be sent to the member concerned, notifying them of the charge under the constitution. The general charge would normally be:

• Conduct prejudicial to the interest of the club;
• Conduct which is unbecoming of a member; or
• Conduct which shall render the member unfit for membership.

Care must be taken to ensure the charge is one that is referred to or contemplated by the club’s constitution.

Full particulars of the charge should be set out in the notice sent to the member concerned. This should involve a clear statement setting out:

• Date of alleged offence
• Time of alleged offence
• Place of alleged offence
• Factual details of the conduct which, it is alleged, constitute a breach of the club’s constitution or otherwise how it renders the member liable for disciplinary action.

The notice should also state:

• Date of hearing
• Time of hearing
• Place where the charge is to be heard
• Instructions outlining that the member is entitled to attend the hearing for the purpose of answering the charge. It should also be articulated that they are entitled to submit a written representation to the meeting for the purpose of answering the charge.

During the meeting

The hearing must be conducted in an unbiased manner. Any Board member who has a potential conflict of interest or bias should disqualify themself from presiding at the hearing. Failure to do so could invalidate the proceedings.

The member concerned must be given the opportunity to:

• Ask questions of any witnesses supporting the allegations made against them
• Examine any documentation which is to be considered by the Board in relation to the charge
• Call their own witnesses to give evidence, either orally or in writing.

Right of a member: legal representation

• A club does not need to allow a member to have legal representation at a disciplinary hearing.
• If the Board is not allowing a member to have legal representation, then the Board should not have legal representation.
  To do so puts the member at un unfair disadvantage.
• Members may request to bring another person to the disciplinary hearing to be an observer or simply to give emotional support. Club Boards should consider requests of this nature carefully and for the most part should agree to them.
  The observer needs to agree to treat the matter in confidence and not divulge information regarding the matter to anyone.

Proceedings in the absence of a member

• Check the club’s constitution for guidance on members failing to appear at a hearing.
  The club’s constitution may allow for the charge to be heard and dealt with by the Board in their absence with the evidence put before it.
• The Board is required to consider any written representations submitted by the member, but may proceed to hear the matter if the member, having been properly notified, fails to attend the disciplinary hearing without a reasonable excuse.
• The member must be given due notice of the charge, and any reasonable request for an adjournment due to an inability to attend should generally be granted.

Decision of the Board is final

Many clubs have a provision in their constitution stating that the decision of the Board or its subcommittee on a hearing shall be final and not open to further challenge. The purpose of this provision is to prevent further challenge and unnecessary expense in dealing with disciplinary matters.

Removal of a director by the board

If a director has contravened the rules of the club as a member, the offending director can be dealt with by the board, as a member, in the same way as any other member would be dealt with for contravening the rules.

A director who is suspended as a member loses his or her privileges of membership. However, that person remains a director and is entitled to attend Board meetings, but should only be allowed to stay on the club’s premises for the Board meeting and should leave as soon as possible afterwards.

A director can only be removed from office as a director by the members.