BYE - LAWS, Section F
October 2008
COMPLAINTS PROCEDURES
ARRANGEMENT OF PARAGRAPHS
Part I. Preliminary
2. Arbitration Committee
4. Appeals Board
5. Format of Complaints
6-8. Referral of Complaints
9. Disciplinary Powers of National Executive Committee
10. Independence
11. Representation
12. Settlement by Agreement
13. Natural Justice
Part II. Preliminary Procedures
14. First Stage
15. Second Stage
16. First Stage
Part IV. Other Complaints
18. First Stage
19. Second Stage
Part V. Mediation
Part VI. Arbitration Procedures
Part VII. Powers
24. Decision-Making Powers of Tribunal
25. Power of Appeals Board
Part VIII. Appeals
29-30. Notice of Appeal
36. Publication of Decision
Part IX. Costs
37. Submission of Complaint
38. Costs of Mediation
39. Order for Costs
40. Security for Costs
PART I. PRELIMINARY
1.
Interpretation
In these Bye-laws:-
(a) 'complaint'
means an allegation by a person or body that he or it has been
personally or individually wronged by another person or body.
(b)
'complainant' means any person or body submitting a complaint
under these Bye-laws.
(c)
'arbitrating body' means the body adjudicating upon a complaint
or appeal.
(d)
'respondent' means any person or body required to answer a
complaint or appeal under these Bye-laws.
(e)
'appellant' means any person or body appealing from a decision
under these Bye-laws.
(f)
'party' means any complainant, respondent or appellant in any
proceedings under these Bye-laws, including, where the context so
requires, any person or body which is the subject of a decision or award
of the arbitrating body.
(g) "third-party complaint" means a complaint
made by a complainant on behalf of a person or body other than himself.
(h)
'natural justice' means the provision for all parties of a fair
hearing for a complaint or appeal by an arbitrating body pursuant to
Article 6 of the Human Rights Act 1998.
(i)
'fair hearing' means the hearing of a complaint or appeal of
which prior written notice has been given to the complainant or
appellant and the respondent of each other's case and for which an
opportunity is given to all parties to make representations thereon.
(j)
'working day' means any calendar day other than a Saturday, a
Sunday or a public holiday.
(k)
'security for costs' means the deposit with the Union of a sum of
money as may be required by the Arbitration Committee or the Appeals
Board, as the case may be, before undertaking any hearing.
(l)
'significant failure' means a failure which can be shown to be
likely to have affected the decision against the appellant.
(m)
'suspend' means suspend for a definite period.
2.
Arbitration Committee
(1)
There shall be an Arbitration Committee, appointed annually by
the National Executive Committee, which shall carry out the functions
and duties assigned to it by or under these Bye-laws.
No member of the National Executive Committee, the Council, the
Appeals Board or the Arbitration Panel shall be a member of the
Arbitration Committee.
(2)
The Arbitration Committee shall have power to make, and from time
to time to vary and revoke, rules of procedure, without infringing the
general principles laid down in these Bye-laws.
(3)
The Arbitration Committee shall cause records to be kept of all
complaints referred to it and decisions thereon, and shall make such
reports to the National Executive Committee as may be necessary from
time to time.
3.
Arbitration Panel
There shall be an Arbitration Panel,
appointed by the National Executive Committee from among Class B members
of the Union. No member of
the National Executive Committee, the Council, the Arbitration Committee
or the Appeals Board shall be a member of the Arbitration Panel.
4.
Appeals Board
(1)
There shall be an Appeals Board, appointed from time to
time by the National Executive Committee, which shall carry out the
functions and duties assigned to it by or under these Bye-laws.
No member of the National Executive Committee, the Council, the
Arbitration Committee or the Arbitration Panel shall be a member of the
Appeals Board.
(2)
The Appeals Board shall have power to make, and from time to time
to vary and revoke, rules of procedure, without infringing the general
principles laid down in these Bye-laws.
(3)
The Appeals Board shall cause records to be kept of all appeals
referred to it and decisions thereon, and shall make such reports to the
National Executive Committee as may be necessary from time to time.
5.
Format of Complaints
(a)
A complaint shall not be dealt with unless it is in writing and
includes the signature, full name and address of the complainant.
(b)
Any complaint shall include as a minimum the following
information:-
(i)
the party or parties against whom the complaint is made;
(ii)
a statement of all relevant facts.
(c)
Third-party complaints shall not be accepted.
(d)
A complaint shall be accepted only if preferred against:-
(i)
a member of the Union;
or
(ii)
a body or committee within the Union or a member of such.
6.
Referral of Complaints
(1) Except as
provided in (2) below, all complaints received by the Union shall be
referred to the Arbitration Committee.
(2) A complaint
against the Arbitration Committee shall be referred to the National
Executive Committee, which shall appoint a panel to deal with the
complaint in accordance with these Bye-laws.
No member of the National Executive Committee, the Council, the
Arbitration Committee or the Appeals Board shall be a member of such
panel.
7.
A complaint arising wholly within a Branch, a Church or a Kindred
Body shall in the first instance be dealt with in accordance with the
appropriate Bye-laws or Rules governing the body as the case may be.
Where the complaint has already been the subject of a decision
pursuant to the complaints procedure within the Branch or affiliated
body, any appeal shall be referred to the Appeals Board.
Where no such decision has been made, the complaint shall be
referred to the Arbitration Committee.
8.
The Arbitration Committee may refer a complaint to the National Executive
Committee if the Arbitration Committee considers it to be the more
appropriate body to deal with the matter.
9.
Disciplinary Powers of National Executive Committee
The provisions of these Bye-laws are
without prejudice to the right of the National Executive Committee to
exercise its disciplinary powers under the Articles and Bye-laws.
10.
Independence
No member of an arbitrating body shall
take part in any proceedings in relation to any complaint or appeal if
he is or has been previously concerned in the complaint or appeal,
either personally or as a member of a committee or other body, or if he
has a direct proprietary or financial interest in the outcome of the
proceedings.
11.
Representation
(a)
Any party to any proceedings in relation to any complaint or
appeal shall be permitted to have a legal or other professional
representative or lay advisor ("a McKenzie friend") present at any
hearing but such representative or advisor shall attend in an advisory
capacity only and shall not be permitted to make representations or to
conduct any examination or cross-examination.
(b)
Any point of law shall be submitted in writing in skeletal form
and submitted to the Arbitration Committee not less than 15 working days
before any hearing.
(c)
The arbitrating body shall not enter directly into communication
with any legal or other professional representative/advisor acting for
any party to the proceedings in relation to any complaint or appeal,
except for clarification of any point of law submitted under paragraph
11(b) above and only after consultation with the Arbitration Committee.
12.
Settlement by Agreement
All the provisions contained in these
Bye-laws are without prejudice to the right of the parties to the
complaint to endeavour to secure an amicable settlement by agreement at
any stage. It shall be the
duty of the parties or any mediator appointed to notify the Arbitration
Committee of the details of the amicable settlement and to provide it
with a copy of the agreed settlement signed by each party.
13.
Natural Justice
All proceedings under these Bye-laws shall
be conducted in all respects in accordance with natural justice.
PART II. PRELIMINARY
PROCEDURES
14.
First Stage
On receipt of a
complaint the Arbitration Committee shall:-
(a) acknowledge
the communication within 15 working days and send a copy of Bye-laws F
to the complainant;
(b) if it
thinks fit, request clarification of details of the complaint to be
submitted within 15 working days;
(c) within 15
working days of the acknowledgement under (a) above or of receipt of
clarification under (b) above, whichever is the later, rule whether the
complaint is malicious, vexatious or frivolous or an abuse of the
process; and
(d) if the
complaint has been rejected under (c) above, inform the complainant
accordingly;
(e) if the
complaint has not been rejected under (c) above, inform the complainant
accordingly, notify the respondent that a complaint has been received
and send him a copy of Bye-laws F.
15.
Second Stage
Subject to paragraph 14(d) above, the
Arbitration Committee shall then deal with the complaint in accordance
with the appropriate sub-paragraph below:-
(a)
A complaint concerning the Council, a Branch, district council,
Standing Committee or NEC sub-committee shall be dealt with in
accordance with Parts III, V, VI and VII of these Bye-laws.
(b)
Any other complaint shall be dealt with in accordance with Parts
IV, V, VI and VII of these Bye-laws.
PART III.
COMPLAINTS CONCERNING THE COUNCIL, A BRANCH, DISTRICT COUNCIL, STANDING
COMMITTEE OR NEC SUB-COMMITTEE
16.
First Stage
(a)
In the case of a complaint under paragraph 15(a) above, the
Arbitration Committee shall send a copy of the complaint and any
supplementary information obtained under paragraph 14(b) above to the
respondent and request his observations in writing within 15 working
days. An extension of the
time for making such observations may be granted by the Arbitration
Committee upon written request.
(b)
The Arbitration Committee shall send a copy of such observations
to the complainant.
(c)
In the event of unreasonable failure by any party to respond with
his observations in writing within the prescribed period the Arbitration
Committee may proceed in the absence of such.
17. Second
Stage
The Arbitration Committee shall:-
(a)
if appropriate, send a copy of the complaint and the respondent’s
observations to the relevant committee with a request for its comments
within 20 working days;
(b) on receipt
of such comments, reconsider whether to rule that the complaint is
malicious, vexatious or frivolous or an abuse of the process and, if so,
inform the complainant, respondent and the relevant committee
accordingly; and
(c)
subject to sub-paragraph (b) above, appoint a mediator, who shall
endeavour to secure an amicable settlement by agreement.
PART IV.
OTHER COMPLAINTS
18.
First Stage
(a)
In the case of any complaint under paragraph 15(b) above, the
Arbitration Committee shall send a copy of the complaint and any
supplementary information obtained under paragraph 14(b) above to the
respondent and request his observations in writing within 15 working
days. An extension of the
time for making such observations may be granted by the Arbitration
Committee upon written request.
(b)
The Arbitration Committee shall send a copy of such observations
to the complainant.
(c)
In the event of unreasonable failure by any party to respond with
his observations in writing within the prescribed period the Arbitration
Committee may proceed in the absence of such.
19.
Second Stage
The Arbitration Committee shall:-
(a) on receipt
of such observations, reconsider whether to rule that the complaint is
malicious, vexatious or frivolous or an abuse of the process and, if so,
inform the complainant and respondent accordingly;
and
(b)
subject to sub-paragraph (a) above, appoint a mediator, who shall
endeavour to secure an amicable settlement by agreement.
PART V.
MEDIATION
20.
Procedure
The mediator shall:-
(a)
convene a meeting or meetings with the parties to the complaint
to endeavour to secure an amicable settlement by agreement;
(b)
if an amicable settlement is reached, have the agreement recorded
in writing and signed by each party to the complaint and send it to the
Arbitration Committee, which shall issue it to all parties, to any
relevant committee under paragraph 17(a) above, and to the National
Executive Committee;
(c)
if an amicable settlement is not reached, send his written
observations on the case to the Arbitration Committee, together with all
documentation relating thereto.
PART VI.
ARBITRATION PROCEDURES
21.
Procedure
(1)
In the event of failure to secure an amicable settlement by
agreement the Arbitration Committee shall, subject to sub-paragraph (2)
below, deal with the complaint in accordance with the appropriate
sub-paragraph below:-
(a)
Where a complaint consists solely of an allegation or allegations
of an infringement or infringements of the Union's Articles of
Association, Bye-laws or the Rules governing an affiliated body, the
Arbitration Committee may either:-
(i) make
a summary decision and send it to all parties to the complaint, to any
relevant Committee under paragraph 17(a) above, and to the National
Executive Committee; or
(ii)
convene a hearing in accordance with sub-paragraph (b) below.
(b)
In all other cases the Arbitration Committee shall appoint three
members from the Arbitration Panel to constitute a tribunal, none of
whom shall be the person who acted as the mediator in the complaint or a
member of any relevant committee under paragraph 17(a) above.
The tribunal shall convene a hearing or hearings with the parties
and any witnesses for the purpose of hearing the complaint.
(2) None of the
powers contained within paragraph 24, sub-paragraph (b), clauses (vi) to
(xiv) shall be exercised in the case of a summary decision.
22.
Tribunal Hearing
(1) The
tribunal shall give all the parties to the complaint not less than 20
working days’ notice of the date, time and place of the hearing.
(2) Not less
than 15 working days before the hearing all parties to the complaint
shall supply the Arbitration Committee with copies of the statements of
evidence to be made by themselves and any witnesses, which shall
thereafter be delivered to the tribunal and all the parties to the
complaint.
(3) The
proceedings shall be tape-recorded and the hearing shall be conducted as
follows:-
1.
Opening address by complainant.
2.
Evidence by complainant and witnesses.
3.
Cross-examination of complainant and witnesses by respondent.
4.
Re-examination of witnesses by complainant.
5.
Evidence by respondent and witnesses.
6.
Cross-examination of respondent and witnesses by complainant.
7.
Re-examination of witnesses by respondent.
8.
Closing address by complainant.
9.
Closing address by respondent.
10. Clarification of
any points of law which may be needed by the tribunal.
11. Assessment by
tribunal of parties’ costs.
(4)
Not more than 30 working days
after the conclusion of the hearing the Arbitration Committee shall
publish the tribunal's decision in writing to all parties to the
complaint, to any relevant committee under paragraph 17(a) above and to
the National Executive Committee.
(5) The
decision of the tribunal shall include:-
(a) a statement
of the facts as found;
(b) a statement
as to which parties are at fault and, if so, in what respects;
(c) the penalty
or award, if any;
(d) the order
for costs.
PART VII. POWERS
23.
Interim Powers of Arbitration Committee and Tribunal
While the complaint is under consideration
and until the decision is published the Arbitration Committee or the
tribunal in consultation with the Arbitration Committee shall:-
(a)
in relation to any person or body which is concerned in the
complaint, have power to:-
(i)
convene and preside over any meeting or meetings with any person
or body which is concerned in the complaint;
(ii)
convene, preside over, postpone or cancel any general meeting of
members or of any committee;
(iii)
take possession of and/or examine any or all account books,
records and documents;
(iv)
appoint an auditor or independent examiner to inspect and report
on the finances or prepare the accounts;
(v)
take measures to safeguard any or all assets.
(b)
in relation to any party to the complaint, have power to:-
(i)
place it under the supervision of the National Executive
Committee or of the appropriate District Council;
(ii)
suspend or reinstate any holders of elected or appointed
positions within it;
(iii)
suspend or reinstate the registration of any SNU Registered
Healer;
(iv)
suspend or reinstate any or all of its activities;
(v)
suspend or reinstate any or all of his or its rights and
privileges;
(vi)
take any action necessary to maintain its constitutional
obligations;
(vii)
discharge outstanding liabilities and debts from assets;
(viii)
arrange for the holding of elections;
(ix)
supervise the conduct of any or all of its activities.
24.
Decision-Making Powers of Tribunal
In formulating its decision the tribunal
shall:-
(a)
in relation to any person or body which is concerned in the
complaint, have power to:-
(i)
declare vacant any position and make such arrangements as it may
consider necessary or expedient for the constitutional filling of the
vacancy and for the discharge of the duties of the position in the
meantime;
(ii)
order the convening, postponing or cancelling of any general
meeting of members or any meeting of the Committee;
(iii)
order the taking of any action necessary to maintain the
constitutional obligations of the body;
(iv)
order the preparation, audit or independent examination of its
accounts;
(v)
order the holding of elections;
(vi)
order the supervision of any or all of its activities.
(b)
in relation to any party to the complaint, have power to:-
(i)
censure him or it for his or its conduct;
(ii)
suspend or reinstate his membership;
(iii)
suspend or reinstate any or all of his or its rights and
privileges;
(iv)
suspend or reinstate his registration as an SNU Registered
Healer;
(v)
suspend or reinstate any or all holders of elected or appointed
positions within it;
(vi)
recommend that it be placed it under the supervision of the
National Executive Committee or of the appropriate District Council;
(vii)
recommend that the National Executive Committee terminate his
membership;
(viii)
recommend that the National Executive Committee revoke any or all
of his or its rights and privileges;
(ix)
recommend that the National Executive Committee revoke his
registration as an SNU Registered Healer;
(x)
recommend that the National Executive Committee remove or replace
any or all holders of elected or appointed positions within it;
(xi)
recommend that the National Executive Committee suspend,
reinstate or revoke any or all of its activities;
(xii) recommend that the
National Executive Committee suspend his eligibility for any or all
offices in any or all affiliated or associated bodies for a specified
period;
(xiii)
recommend that the National Executive Committee suspend, revoke
or reinstate his Class B or D membership or, in the case of a Class B
member, re-allocate him to another District Council;
(xiv)
recommend that the National Executive Committee suspend, revoke
or reinstate its affiliation, re-allocate it to another District Council
or dissolve it.
25.
Power of Appeals Board
The Appeals Board shall have power to
examine any or all account books, records or documents.
PART VIII. APPEALS
26.
Grounds of Appeal
Any person or body which is the subject of
a decision by the Arbitration Committee, a tribunal, a Branch, the
Healing Committee or an affiliated body pursuant to the complaints
procedures may give notice of appeal to the Appeals Board on one or more
of the following grounds only:-
(a)
that there was a significant failure to follow the proper
procedure;
(b)
that the findings of fact cannot be supported having regard to
the evidence;
(c)
that the decision is unsafe and unsatisfactory or is
unreasonable;
(d)
that any penalty imposed is too lenient, too severe or otherwise
inappropriate;
(e)
that in all the circumstances of the case there was a miscarriage
of justice;
(f)
that there is new evidence, not available at the time of the
decision, which renders such decision unsafe and unsatisfactory or
contrary to a fair trial pursuant to Article 6 of the Human Rights Act
1998.
27.
Any person who is the
subject of a resolution under Church Rule 5(3) or 16(2)(a) may give
notice of appeal to the Appeals Board on one or more of the following
grounds only:-
(a)
that there was a significant failure to follow the proper
procedure;
(b)
that the findings of fact cannot be supported having regard to
the evidence;
(c)
that the decision is unsafe and unsatisfactory or is
unreasonable;
(d)
that in all the circumstances of the case there was a miscarriage
of justice;
(e)
that there is new evidence, not available at the time of the
decision, which renders such decision unsafe and unsatisfactory or
contrary to a fair trial pursuant to Article 6 of the Human Rights Act
1998.
28.
Any person who is the subject of a resolution under Church Rule
16(2)(b) may give notice of appeal to the Appeals Board only on the
ground that there was a significant failure to follow the proper
procedure.
29.
Notice of Appeal
(a)
Any notice of appeal shall be submitted in writing to the General
Secretary of the Union within fifteen working days of the date of
written notification to the parties of the decision or resolution as the
case may be. An extension of
the time for appeal may be granted by the Appeals Board.
(b)
The General Secretary shall without undue delay:-
(i)
acknowledge the communication;
(ii)
inform the other party or parties of the receipt of the appeal;
(iii)
send the correspondence to the Appeals Board;
and
(iv) in the case of
an appeal against a decision of the Arbitration Committee or a tribunal,
send a copy of the notice to the Arbitration Committee.
30.
Any notice of appeal shall include the grounds of appeal and
particulars in support thereof.
In considering an appeal the Appeals Board shall take into
account any significant failure to follow the proper procedure
notwithstanding the failure of the appellant to cite such ground.
31.
Preliminary Procedure
(a)
Upon receipt of the appeal the Appeals Board shall send a copy of
the appeal to the respondent or respondents thereto and request his or
their observations in writing within 15 working days.
An extension of the time for making such observations may be
granted by the Appeals Board on written request.
(b)
The Appeals Board shall send a copy of such observations to the
appellant.
32.
In the event of unreasonable failure by any party to respond
with his observations in writing within the prescribed period the
Appeals Board may proceed in the absence of such.
33.
Upon receipt of the appeal the original decision or resolution as
the case may be shall be suspended.
34.
Subsequent Procedure
The Appeals
Board shall:-
either
(a)
make a summary decision on the appeal and publish it in writing to all
parties to the appeal, to the National Executive Committee, to the
Arbitration Committee, to the arbitrating body and to any relevant
committee under paragraph 17(a) above;
or
(b)
convene a meeting or meetings with the parties and any witnesses for the
purpose of hearing the appeal and publish its decision in writing to all
parties to the appeal, to the National Executive Committee, to the
Arbitration Committee, to the arbitrating body and to any relevant
committee under paragraph 17(a) above.
35.
If the Appeals Board upholds an appeal it shall:-
either
(a)
substitute such other decision or decisions as it considers warranted in
all the circumstances;
or
(b)
order the original complaint to be re-heard in accordance with Part VI
of these Bye-laws.
36.
Publication of Decision
(1)
The decision of the Appeals Board shall come into effect upon
publication to the parties and shall be final and binding on all
parties.
(2)
There shall be no appeal against the decision of the Appeals
Board.
PART IX. COSTS
37.
Submission of Complaint
A person submitting a complaint shall be
required to pay the prescribed administration fee as a precondition of
dealing with the complaint.
Such fee may be waived on grounds of hardship.
38.
Order for Costs
At the completion of all proceedings the Arbitration Committee shall make an
order for costs as it deems appropriate against any or all of the
parties to the complaint or appeal as the case may be.
Any costs awarded shall be paid within 15 working days of the
publication of the order and in default thereof shall bear interest
thereafter at the rate of 2 per cent per annum above base interest.
39.
Security for Costs
The Arbitration
Committee shall have power to require security for costs as a
precondition of undertaking any hearing.