From time to time, members will engage in unsatisfactory behaviour which will result in the club having to commence disciplinary proceedings against the offending members. The question facing club boards and managers in these circumstances is this: how does the club give effect to disciplining a member and ensure any proceedings are both binding and lawful?
Most (if not all) club constitutions will allow the club to commence disciplinary proceedings against a member who has allegedly engaged in “conduct which is unbecoming of a member” and “conduct which is prejudicial to the interests of the club”.
A club’s constitution typically includes provisions dealing with:
(a) the procedure to be followed in respect of the disciplinary proceedings generally;
(b) the reasons and grounds upon which disciplinary proceedings can be commenced against a member; and
(c) the amount of notice that the member must receive of the disciplinary charge and hearing;
(d) the rights and entitlements of members at the disciplinary hearing;
(e) the procedure to be followed at the actual hearing.
Disciplinary proceedings must be conducted in accordance with the constitution of the club and the principles of natural justice and procedural fairness.
It is important that clubs review and understand the provisions of their constitutions dealing with disciplinary proceedings before formally commencing disciplinary proceedings against members.
This is because, in general terms, if a club carefully follows the disciplinary provisions set out in the constitution, the club can be satisfied that the disciplinary process has been conducted in accordance with the principles of natural justice and procedural fairness, as required by law.
Therefore, if a club complies with its constitution when conducting disciplinary proceedings, a member will have significant difficulty in challenging the validity of the disciplinary proceedings and its outcome.
However, if a club fails to comply with the requirements of its constitution, a member may have strong grounds to challenge the validity of the disciplinary proceedings and most importantly, the outcome of the disciplinary proceedings.
This can be highly problematic and it can often involve wide-ranging negative consequences.
Some Common Mistakes…
Some of the common mistakes that clubs make when disciplining members and conducting disciplinary proceedings are:
(a) contrary to the requirements of the constitution of the club, the member is disciplined (for example, suspended or expelled from membership of the club) without disciplinary proceedings being conducted against the member.
(b) the notice of disciplinary charge and hearing does not contain the correct and required information (for example, the notice fails to state the charge against the member or it does not include any particulars to enable the member to adequately address the charge).
(c) the member is not given sufficient notice of the charge and hearing.
(d) the Board does not allow the member to make a submission to the Board in respect of the penalty which is to be imposed on the member if they are found guilty of the charge.
Some Possible Negative Outcomes …
We have acted for clubs who (despite acting in good faith) have not complied with the provisions of their constitution when conducting disciplinary proceedings.
Unfortunately, this has resulted in negative outcomes for some of those clubs.
This is because it is difficult (if not impossible) to remedy the failure of a club to comply with its constitution and to retrospectively provide a member with natural justice and procedural fairness.
Some of the negative outcomes include:
(a) the outcome of the disciplinary proceedings being voided.
(b) members submitting complaints against the club to the ClubsNSW Code Authority regarding the conduct of the disciplinary hearing.
(c) clubs receiving letters of demand from legal representatives to overturn the outcome of the disciplinary proceedings;
(d) members taking legal action against the club.
To address and resolve the issues arising from the deficient disciplinary proceedings, the clubs in question have incurred significant costs (in time, energy and fees).
Furthermore, if a club has failed to conduct one set of disciplinary proceedings correctly, it is possible that other disciplinary proceedings have not been conducted correctly. This means that the club could be exposed to further claims of conducting deficient disciplinary proceedings.
2 Key Recommendations:
1) Know your Rules
Before a club commences disciplinary proceedings, the club should be aware of and fully understand the requirements in their constitution for disciplinary proceedings.
If a club is unsure about anything related to the disciplinary proceedings, it should obtain legal advice because there is a significant risk that the club could be subject to a negative outcome if the disciplinary proceedings are not correctly dealt with.
From our experience, it is more effective (with regard to time, hassle and cost) for clubs to obtain advice at the outset as opposed to waiting until an issue arises.
2) Keep the Rules up to date
Additionally, it may be worthwhile for clubs to review and if necessary amend the provisions of their constitutions dealing with disciplinary proceedings so that they reflect the club’s existing practice and best practice generally.
For instance, we have assisted many clubs recently to amend their constitutions to allow a club to discipline members for unacceptable conduct without having to commence formal disciplinary proceedings against members.
In this regard, a possible solution is for club boards to grant their CEOs with greater disciplinary powers to deal with certain types of disciplinary matters and the power to issue certain penalties without the need for disciplinary proceedings. You can find out more about the powers available to a CEO to discipline members here.
Further information and contact details
We have guided many clubs through difficult disciplinary proceedings, and can assist clubs by drafting industry leading and tailored disciplinary rules into your club’s constitution.
If you would like our assistance with dealing with any unacceptable conduct from a member and/or preparing an appropriate set of disciplinary rules for your club, please get in touch with a member of our specialist registered Clubs Team on 02 8251 7777 or at the email addresses listed below.
This publication is produced by Pigott Stinson. It is intended to provide general information only. The contents of this publication do not constitute legal advice and should not be relied upon as legal advice. Formal legal advice should be sought from us in respect of the matters set out in this publication. Liability limited by a scheme approved under Professional Standards Legislation.