Most clubs or member based organisations have constitutions which include provisions for reprimand right through to expulsion on penalising of members in the event of adverse disciplinary action and findings. Those proceedings can arise from relatively minor indiscretions to serious conduct. Generally speaking the more serious the conduct alleged the more rigorous should be the attention to ensuring procedural fairness is adopted in the hearing process.
If the club or organisation has a defined process for disciplinary hearings in its constitution this should be followed. The variety of constitutions and articles of association can be very limited or very detailed. This depends on how the constitution or articles were structured in the first place. Some may therefore be lagging behind the law if they have not been reviewed in the meantime.
Often many constitutions were settled years and possibly decades ago. Whether or not legal input was made or whether model rules were followed in devising a particular constitution should not substantially alter the need to ensure basic procedural fairness in disciplinary hearings.
Regardless of the nature of the content of the constitution it is important to bear in mind that ultimately the courts will have principles which are applied in terms of remedial orders in respect of disciplinary hearings which come under challenge. Following some basic procedural steps will prevent the likelihood of challenge or risks of adverse Court findings if a decision comes under challenge.
There are a number of fairly straightforward features to ensure hearings are properly undertaken. Some of the key issues which must be kept in mind in the process are as follows:
- Commonsense planning to ensure all hearings are conducted fairly (ie how would I wish to be treated in terms of being given a fair hearing);
Specifically observe the main facets of the hearing rule, which involves many aspects including:
- Charges being properly particularised setting out the particulars as clearly as possible including dates and times if known together with a particularisation as to how the conduct is alleged to be in breach of the club’s rules;
- Give proper notice of the charges (ie the charges should be set out in writing almost invariably and given to the person charged by a method which ensures that they have been received);
- Give proper notice of the hearing (ie it would be unacceptable to give someone less than any reasonable time to prepare their own defence including seeking input from persons who would reasonably be able to assist as a witness in the proceeding);
- Give direction as to how the hearing will proceed (whether by correspondence or whether before the decision maker with actual evidence being called);
- The names or constitution of the persons or panel hearing the charges should be stipulated and advised to the respondent in sufficient time prior to the hearing to ensure that there is no risk of bias developing though inadequate time to discover potential bias;
- Allow a reasonable opportunity for the respondent to the charges to be heard;
- Assess and weigh all the evidence fairly;
- Arrive at a decision in a reasonable time and give proper reasoning for the decision;
- A decision should wherever possible be given in writing.
If there is a detailed constitution for the organisation this must be followed as far as possible unless it is grossly inconsistent with the principles of procedural fairness as outlined broadly above.
For example another facet of the hearing rule is that the person or persons hearing the matter should not have any personal or business interests in the outcome of the decision in matters to be decided. In particular, the rule against bias would ensure that any person who fails to declare a potential conflict runs the risk of having their decision set aside or potentially their participation in the process prevented under any challenge which could become subject of a pre or post hearing court order.
In the hearing, witnesses should have fair access and ability to cross-examine any witnesses who may give live evidence. Generally in club and organisation disciplinary hearings legal representation is not allowed in terms of legal representatives speaking or making submissions. Generally legal advisors for the club and for the member can be present to advise the club organisation or the person subject of the hearing but not otherwise speak at or interrupt the hearing.
Content of Decision
In respect of the decision itself the rules of procedural fairness require a proper weighing up and consideration of the evidence. Some of the main issues which result in error involve placing too much weight on irrelevant considerations or taking into account irrelevant considerations, failing to take into account relevant considerations or not fully taking into account all proper relevant considerations. Generally speaking a decision which on its face does not accord with the findings open on the evidence or lacks sufficient weight to sustain the decision is prone to being set aside. In any case, direct evidence may not exist to support a finding. In such case a disciplinary tribunal can consider whether an inference as to certain facts leading to a logical conclusion may properly be drawn.
In terms of inferences which are found to be made out on the evidence, it is important for any decision in order to withstand scrutiny must be based upon a finding fairly arrived at and capable of being objectively inferred from the evidence. Such evidence must be cogent and reliable for an inference to be properly drawn. It is most important that facts used as the basis for an inference must be clearly and demonstrably justified on the evidence.
For most decisions in hearings to withstand external scrutiny they should be properly structured and reasoned. On the face of the decision there must be a setting out of the basis upon which a decision was reached in all of the circumstances.
The decision must be communicated in a reasonable time after hearing to the relevant party and again it is most important that the person subject of the decision is actually given the decision by a means ensuring that it has been received. Furthermore if there is an appeal process in the constitution it ideally should be set out as a notice showing those rights to accompany the decision.