DISCIPLINARY PROCEDURE

Transcription

1 1 DISCIPLINARY PROCEDURE 1. General 1.1 This is the disciplinary procedure ( Disciplinary Procedure, or Procedure ) and relative regulations ( Regulations ) of The British Association of Snowsport Instructors Limited ( BASI ), both of which were adopted by resolution of its board of directors ( BASI Board ) on 18th May 2016 pursuant to Article 44 of the articles of association of BASI ( Articles, or in the case of one article, Article ), in substitution for and to replace the existing disciplinary procedure and relative regulations of BASI in force on or prior to that date. 1.2 This Disciplinary Procedure relates solely to the code of ethics of BASI ( Code of Ethics ) made pursuant to Article 45 of the Articles and all charges ( Charges ) brought against a member of BASI ( Member Charged ) under this Disciplinary Procedure are instituted by and on behalf of the BASI Board (including any Charge brought against BASI itself which in that instance shall be deemed to be brought severally by the Directors in their personal capacity against BASI). 1.3 It should be borne in mind that a disciplinary panel ( Disciplinary Panel ) convened under this Disciplinary Procedure is not a court of law and is a disciplinary rather than an arbitral body. Achieving a just and fair result is the paramount objective under this procedure and, to that end, procedural and technical considerations are subsidiary to that objective. 1.4 All parties involved in proceedings subject to this Procedure ( Proceedings ) shall act in a spirit of cooperation to ensure such Proceedings are conducted expeditiously, fairly and appropriately, having regard to their sporting context. 1.5 The Disciplinary Panel shall have the power to regulate its own procedure. 1.6 Without limitation to the authority of the bodies which are subject to this Procedure to regulate their own procedures, where at any time in the course of any Proceedings, there has been a breach of procedures by BASI or a failure by BASI to follow any direction given, including any time limit, this shall not invalidate the Proceedings or its outcome unless the breach has been such as to seriously and irremediably prejudice the position of the Member charged. 1.7 Save where otherwise stated, the applicable standard of proof shall be the civil standard on the balance of probability. 1.8 All decisions made in accordance with this Disciplinary Procedure, or purportedly so subject to any right of appeal herein contained, shall be given effect by Articles 45 and 46 of the Articles. 2. The Disciplinary Group 2.1 From time to time, the BASI Board shall appoint Members to a body known as the Disciplinary Group from which the constituents of any Disciplinary Panel shall be selected by the Disciplinary Secretary (as hereinafter defined). 2.2 At any one time the Disciplinary Group shall consist of no fewer than 12 Members; Provided that if the

2 Disciplinary Group falls below such number, a Disciplinary Panel may still be constituted and the BASI Board shall act as soon as practicable to appoint a replacement Member or Members to the Disciplinary Group. 3. The Disciplinary Panel 3.1 The Disciplinary Panel in any case against a Member Charged shall be drawn from the Disciplinary Group. 3.2 A Disciplinary Panel shall be constituted by 3 members of the Disciplinary Group and shall consist of a Chairperson ( the Chair ), and two others. The constitution of the Disciplinary Panel shall be free from any conflict of interest in relation to the subject matter of the Charge, or the Member Charged. 4. The Disciplinary Secretary 4.1 The BASI Board shall appoint a disciplinary secretary ( Disciplinary Secretary ) from its membership or externally who shall at all times be independent from the Disciplinary Group. 4.2 The Disciplinary Secretary shall be responsible for convening the Disciplinary Panel in any given case, and choosing the Chair of that Disciplinary Panel, and shall act as clerk to the Disciplinary Panel. 4.3 The Disciplinary Secretary shall at all times assist the Disciplinary Panel, and shall be responsible for the general co-ordination of any Proceedings or appeal by, as the case may be a Member Charged or by BASI ( Appellant ) against the decision reached in any Proceedings ( Appeal ). 4.4 All parties shall communicate with the Disciplinary Panel via the Disciplinary Secretary by unless otherwise indicated and the parties shall always copy the Disciplinary Secretary into all communications. 5. The Presenting Officer 5.1 The BASI Board shall appoint a presenting officer ( Presenting Officer ) from its membership or externally who shall at all times be responsible during his tenure for the investigation ( Inquiry ) and presentation of any complaint regarding a Member s breach of the Code of Ethics, and for the institution and presentation of any Charge he or she brings on behalf of BASI, or the Directors of BASI in their personal capacity should the Charge lie against BASI itself, pursuant to this Disciplinary Procedure and the Regulations. 6. Evidence 6.1 A Disciplinary Panel shall not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before a court of law. 6.2 A Disciplinary Panel may draw such inference from the failure of a witness (including the Member Charged) to give evidence or answer a question which it considers appropriate. 7. Representation 7.1 A Member Charged attending an oral hearing may be represented by one individual of their choosing. 7.2 A Member Charged or an Appellant in relation to a decision of the Disciplinary Panel may be legally represented provided that they notify the Discipinary Secretary of the fact that they are to be legally represented by the date on which the Reply (as hereainafter defined) is served or as soon as practicable thereafter. 7.3 An individual acting as representative for a Member Charged shall not be allowed to give evidence under the 2

3 3 provisions of this Disciplinary Procedure. 8. Confidentiality/Publication of Proceedings 8.1 All Proceedings, including those in relation to an Appeal, shall take place in private. 8.2 Subject to Rules 8.4 and 8.5 below, all oral or written representations, submissions, evidence and documents created in the course of any Proceedings are confidential between BASI and as the case may be the Member Charged or the Member concerned. 8.3 All oral or written representations, submissions, evidence and documents created in the course of any Proceedings shall be subject to qualified privilege. 8.4 BASI shall have the power to publish in the public press, on a web site or in any other manner considered appropriate: a. the outcome of any Inquiry (irrespective of whether a Charge is issued in respect of that Inquiry); b. the outcome of, or any aspect of, any Proceedings including without limitation reports of the Proceedings and any hearing, order, requirement, instruction, decision, proceedings, acts, resolution, finding and penalty or sanction; c. any representations, submissions, evidence and documents created or presented in the course of Proceedings whether or not this reflects on the character or conduct of a Member or any third party (together a Report ). Each Member Charged shall be deemed to have consented to any Inquiry or Proceedings or Appeal, and to the publication of any Report. 8.5 BASI shall have the right to use and rely upon any Report including without limitation representations, submissions, evidence and documents created or presented during the course of any Inquiry and/or are created or presented during the Proceedings for the purpose of carrying out its regulatory functions and monitoring and implementing compliance with this Procedure and Regulations and any other rules and regulations applying to Members (including taking action against any Member). 9. Service of Documents 9.1 A document may be served by giving it to the person to whom it is addressed or by leaving it at, or sending it by first class post, or by fax to, the last known address, address or fax number of the addressee. 9.2 Once a Charge has been presented to the Disciplinary Secretary all service of documents shall take place through him or her via unless otherwise indicated. 10. Days 10.1 Any reference to a day or days in this Procedure shall mean a calendar day or days. Bank Holidays in the UK shall not be counted. 11. Other Proceedings

4 11.1 The fact that a Member is liable to face or has pending any other criminal, civil or disciplinary proceedings in relation to or involving the whole or any part of the same subject matter as an Inquiry or a Charge shall not prevent or fetter BASI from conducting Proceedings under this Disciplinary Procedure Where the subject matter of a Charge is sufficiently linked in the opinion of the Disciplinary Panel to any other Charge or Disciplinary Proceedings commenced against another Member, the Disciplinary Panel may consolidate the two Proceedings if it is of the opinion that it is just and convenient to all parties so to do Record Keeping 12.1 A record shall be kept at all stages within the disciplinary process. The Disciplinary Secretary shall ensure that copies of all records are stored in a secure place for such period as the Disciplinary Secretary may determine from time to time. REGULATIONS FOR BASI DISCIPLINARY ACTION 1. Introduction 1.1 These Regulations set out the way in which Proceedings for a breach of BASI s Code of Ethics shall be conducted. 2. The Collection of Evidence 2.1 Members must take all reasonable measures to assist the Presenting Officer in the collection of evidence for the purpose of his or her Inquiry. Where BASI requests the production of evidence from any Member, that Member shall (subject to considerations of confidentiality and legal professional privilege) be under an obligation to provide it. 3. The Charge 3.1 The decision as to whether facts or matters indicate a breach of the Code of Ethics so that a Charge should be brought against a Member will be made by the Presenting Officer, following his or her Inquiry, who will file the Charge with the Disciplinary Secretary. 3.2 The Charge shall: (a) State briefly the nature of the alleged breach. (b) Identify the provision(s) alleged to have been breached. (c) Provide copies of the documents or other material referred to in the Charge. 3.3 Upon the filing of a Charge the Disciplinary Secretary shall within 7 days serve the Charge upon the Member Charged. 4. Directions Introduction 4.1 This Regulation gives effect to the general principle that it is in the interest of the timely and efficient

5 disposal of Proceedings that directions be given whenever a Charge is brought against a Member. In the case of complex matters, these directions may, at the discretion of the Chair of the Disciplinary Panel, be the subject of a directions hearing ( Directions Hearing ) which shall be conducted by him or her alone and in his or her discretion, either orally and in person, by telephone, or via exchange. 4.2 All Charges will be subject to the following standard directions ( Standard Directions ) which may be deviated from or modified at the discretion of the Chair of the Disciplinary Panel. Standard Directions (i) The Member Charged shall reply ( the Reply ) to the Charge within 28 days of its service upon him or her setting out whether the Charge is admitted, and if so in what terms, or denied, and if so in what terms. If a Member Charged admits the Charge, without the need for a hearing, then the Disciplinary Panel shall (when determining the penalty or sanction to be applied) be entitled to take that into account as a mitigating factor entitling the Member Charged to a reduction in penalty or sanction, to be determined by the Disciplinary Panel, in their discretion.. (ii) Upon receipt of the Reply the Disciplinary Secretary shall convene the Disciplinary Panel by the notification of the selected panel members to the parties in case of any conflict of interest. Should there be no objection from the parties to the proposed constitution of the Disciplinary Panel within 7 days, the Disciplinary Panel shall be deemed duly constituted and competent to deal with the Charge, the same being notified to the parties by the Disciplinary Secretary. (iii) Within 14 days following the constitution of the Disciplinary Panel the Chair shall decide and notify to the parties his or her decision as to the level of seriousness of the Charge. The level of seriousness may be regarded as either: a. minor misconduct ( Minor Misconduct ), or b. serious misconduct ( Serious Misconduct ). (iv) Following the notification of the level of seriousness the Member Charged shall indicate one of the following, where applicable, to the Disciplinary Secretary within 14 days: a. That, where the Charge involves Minor Misconduct, the Charge is admitted (in which event the Disciplinary Panel shall then proceed to determine the penalty or sanction without a hearing (unless upon an application made by the Member Charged (before the penalty or sanction is determined) the Disciplinary Panel in its discretion is satisfied that the determination of the penalty or sanction should proceed after an oral hearing for representations regarding such penalty or sanction). b. That, where the Charge involves Serious Misconduct, the Charge is admitted (in which event the Disciplinary Panel shall then proceed to determine the penalty or sanction without a hearing (unless upon an application made by the Member Charged (before the penalty or sanction is determined) the Disciplinary Panel in its discretion is satisfied that the determination of the penalty or sanction should proceed after an oral hearing for representations regarding such penalty or sanction). c. That, where the Charge involves Minor Misconduct, the Charge is denied (in which event the Disciplinary Panel shall then proceed to convene a hearing (unless upon an application made by the Member Charged (before the hearing is convened) the Disciplinary Panel in its discretion is satisfied that the consideration of the Disciplinary Panel on whether the Charge is proven may proceed without an oral hearing). d. That, where the Charge involves Serious Misconduct, the Charge is denied (in which event the Disciplinary Panel shall then proceed to convene a hearing (unless upon an application made by the Member Charged (before the hearing is convened) the Disciplinary Panel in its discretion is satisfied 5

6 that the consideration of the Disciplinary Panel on whether the Charge is proven may proceed without an oral hearing). In the event of a failure or delay of the Member Charged to provide the indication to the Disciplinary Secretary within the deadline, then he or she shall be deemed to have denied the Charge and paragraph (v) below shall apply. (v) Following compliance with and subject to paragraph (iv) above, where the Charge is admitted a date will be set for the Disciplinary Panel to determine the appropriate penalty or sanction. The Member Charged shall provide all written information that he or she wishes to rely upon in mitigation no later than 7 days prior to the date set. (vi) Following compliance with and subject to paragraph (iv) above, where the Charge is denied (or is deemed to be denied) a date will be set for the Disciplinary Panel for an oral hearing to consider whether the Charge is proven. In the case of a Charge to be determined without an oral hearing the following timetable shall apply: a. Not later than 4 weeks before the oral hearing BASI, or the Directors of BASI where appropriate, shall file all information and evidence on which it/they wish to rely with the Disciplinary Secretary for provision to the Disciplinary Panel and the other parties. b. Not later than 1 week before the hearing the Member Charged (or BASI if applicable) shall file all information and evidence upon which they wish to it/they wish to rely with the Disciplinary Secretary for provision to the Disciplinary Panel and other parties. In the case of a Charge to be determined at an oral hearing the following timetable shall apply: c. As for paragraph (vi) a., save that 4 weeks shall be 8 weeks. d. Not later than 4 weeks before the hearing, the Member Charged, or BASI if applicable, shall provide all information and evidence upon which it/they wish to rely and shall notify which (if any) witnesses they wish to call to give oral evidence. Where known to them, they shall notify to BASI, or the Directors of BASI if applicable, and to the Disciplinary Secretary a list of all matters in dispute in the Charge and in relation to any evidence to be given by their witnesses, the evidence upon which such witness will be relying in giving their testimony and how that evidence and testimony relates to the matters in dispute. 6 Procedural Applications and Procedural Hearings 4.3 If the Charge is denied, a party to the Disciplinary Proceedings may apply for procedural issues to be dealt with on a preliminary basis (a Procedural Application ) at a procedural hearing ( Procedural Hearing ) whether oral or not. A Procedural Application must be made as soon as practicable following service of the Charge, and in any case no later than 10 working days prior to the hearing date set for the Charge to be considered. In the event that a party wishes to have the Procedural Application determined by a separate member of the Disciplinary Group the party may submit the Procedural Application to the Disciplinary Secretary who shall determine whether it will be considered by the Disciplinary Panel appointed to determine the Charge or by another single member of the Disciplinary Group appointed by the Disciplinary Secretary for the purpose ( Procedural Determinant ). 4.4 The relevant Disciplinary Panel or Procedural Determinant where applicable shall have the power to decide the procedure to be followed in determining the Procedural Application, including for the Procedural Application to be heard by the Chair alone. If the Procedural Application is determined by the Chair alone or

7 a Procedural Determinant, he or she shall have the same powers in this regard as the Disciplinary Panel. In determining the Procedural Application the Disciplinary Panel, the Chair alone or a Procedural Determinant shall have the power to: a. Dismiss the Procedural Application. b. Order that the procedural issues raised in the Procedural Application be dealt with as part of the main Proceedings and not on a preliminary basis. c. Allow or dismiss the Procedural Application in full or in part. d. Make such further order as it considers appropriate. Any such decisions relating to a Procedural Application shall be final and binding and there shall be no right of further challenge Written Reasons 5.1 The Disciplinary Panel shall give written reasons for: a. Finding the Charge proven or not proven. b. Any penalty or sanction imposed upon a Member Charged. 5.2 The Written Reasons shall be provided to the parties. 6. Appeal 6.1 An Appeal may be lodged by either party against a decision of the Disciplinary Panel to: a. Find the case proven or not proven, or b. Impose a penalty or sanction on the Member Charged. 6.2 The grounds of Appeal ( Grounds of Appeal ) are limited to those set out in, as the case may be, clause 6.3 or clause 6.4 and must be notified to the Disciplinary Secretary within 21 days of receipt by the Appellant of the Written Reasons relating to the decision to be appealed, after which the decision in question shall become final and binding, subject to the Members Ombudsman s discretion to extend this period in exceptional circumstances. 6.3 The Grounds of Appeal available to BASI, or the Directors of BASI if applicable, shall be that the Disciplinary Panel: a. Misinterpreted or failed to comply with the Regulations relevant to its decision, and/or b. Came to a decision to which no reasonable such body could have come, and/or c. Imposed a penalty or sanction that was so unduly lenient as to be unreasonable and the other party or parties to the Charge ( Respondent ) shall receive a copy of the Grounds of Appeal within 7 days of receipt by the Disciplinary Secretary. The Respondent shall respond ( Response ) to the Grounds of Appeal in writing within 14 days after he, she or it receives a copy of the Grounds of Appeal. On receipt of the Response, the Disciplinary Secretary shall send a copy of the Response to the Appellant.

8 8 6.4 The Grounds of Appeal available to a Member Charged, or BASI if applicable, shall be that the Disciplinary Panel: a. Failed to give the Member/BASI a fair hearing; and/or b. Misinterpreted or failed to comply with the Regulations relevant to its decision; and/or c. Came to a decision to which no reasonable such body could have come; and/or d. Imposed a penalty or sanction that was excessive in all the circumstances, or which it had no power to impose and the Respondent shall receive a copy of the Grounds of Appeal within 7 days of receipt by the Disciplinary Secretary. The Respondent shall provide the Response to the Grounds of Appeal in writing within 14 days after he, she or it receives a copy of the Grounds of Appeal. On receipt of the Response, the Disciplinary Secretary shall send a copy of the Response to the Appellant 6.5 Subject to clause 6.6 and 6.18, as soon as practicable after due receipt of the Grounds of Appeal, and any Response, the Disciplinary Secretary shall lodge the Appeal with a tribunal appointed in accordance with the Arbitration Rules of Sport Resolutions (UK) (a trading name of Sports Dispute Resolution Panel Limited - Company No ). The Appeal shall be governed by the Arbitration Act 1996 and the Arbitration Rules of Sport Resolutions (UK). The decision of this tribunal shall be final and binding on all concerned. Appeal in the case of removal of membership pursuant to Article 9(a)(iii) 6.6 In the event that the penalty or sanction is the removal of membership pursuant to Article 9(a)(iii), then there is in that event a first right of Appeal ( First Appeal ) by the Appellant to the Members Ombudsman, within 21 days of receipt by the Appellant of the Written Reasons relating to the decision to be appealed, by the Appellant giving notice to that effect (including the Grounds of Appeal) to the Members Ombudsman (with a copy to the Disciplinary Secretary) who upon receipt of the Grounds of Appeal shall determine the First Appeal without an oral hearing except where the Members Ombudsman gives leave to present new evidence in which case there will be an oral hearing to hear such new evidence. 6.7 An Appellant is not required to use the Members Ombudsman in a First Appeal and may instead proceed directly to an Appeal to a tribunal appointed in accordance with clause 6.5. The decision of this tribunal shall be final and binding on all concerned. 6.8 The parties in a First Appeal shall be entitled to make oral submissions to the Members Ombudsman if an oral hearing is held but a First Appeal shall be by way of a review on documents only, without oral evidence, except where the Members Ombudsman gives leave to present new evidence. 6.9 The Respondent to a First Appeal shall provide theresponse to the Grounds of Appeal in writing within 14 days after he, she or it receives a copy of the Grounds of Appeal. On receipt of the Response, the Disciplinary Secretary shall send a copy of the Response to the Appellant A hearing on a First Appeal before the Members Ombudsman shall be conducted when and where the Members Ombudsman considers appropriate 6.11 In determining a First Appeal the Members Ombudsman may in his or her discretion: a. Allow the First Appeal in whole or in part, or

9 9 b. Dismiss the First Appeal, or c. Send the case back to the Disciplinary Secretary to convene a fresh Disciplinary Panel to rehear the Charge in whole or in part The Members Ombudsman shall proceed in a First Appeal as follows: a. The Members Ombudsman shall hear new evidence only where he or she has given leave that it may be presented. An application for leave to present new evidence must be made by the relevant party when the Grounds of Appeal or Response are submitted, setting out the nature and the relevance of the new evidence, and why it was not presented at the original hearing. The Members Ombudsman will not grant leave to present new evidence unless satisfied with the reason given as to why it was not, or could not have been, presented at the original hearing, or that such evidence is relevant and material to the First Appeal, or that the circumstances are otherwise exceptional. The Members Ombudsman s decision shall be final in this regard. b. Any time limit for lodging the Grounds of Appeal or Response may be dispensed with, abbreviated or extended. c. Any First Appeal may be adjourned for such period and upon such terms as the Members Ombudsman considers appropriate. d. As soon as practicable after the hearing or consideration of the First Appeal the Members Ombudsman shall publish a written statement of his or her decision which he or she shall sign and date, and which shall state: i. The names of the parties and the decision(s) appealed; ii. The Grounds of Appeal; iii. Reasons for the decision and the decision itself, and iv. Any order The Appellant shall prepare a set of documents which shall be provided to the Members Ombudsman and Respondent at least seven days before the hearing and which shall comprise the following (or their equivalent): (1) the Charge; (2) any documents or other evidence referred to at the original hearing relevant to the Appeal; (3) any transcript or record of the original hearing; (4) the Written Reasons; (5) any new evidence; (6) the Grounds of Appeal; (7) the Response. Where the Disciplinary Panel has not stated the reasons for its decision, either: (i) the Appellant shall request Written Reasons from the Disciplinary Panel which shall be provided to the Members Ombudsman; or (ii) the Members Ombudsman shall require that a member of the Disciplinary Panel shall attend in which case, questions may be put by the Members Ombudsman at a hearing to satisfy himself or herself as to the reasons for the decision. Cross-examination by the Appellant or Respondent shall not be permitted. Representations may be made by the parties to the Members Ombudsman who may then put questions to the member of the Disciplinary Panel.

10 6.14 Where an application to present new evidence has been made, the party making the application shall address the Members Ombudsman in support of the application and the other party may respond; the Members Ombudsman shall then determine whether or not he or she will receive the new evidence. The following procedures shall be followed at a First Appeal hearing unless the Members Ombudsman thinks it appropriate to dispense with or amend them: (1) The Appellant to address the Members Ombudsman, summarising its case; (2) Any new evidence to be presented by the Appellant; (3) The Respondent to address the Members Ombudsman, summarising its case; (4) Any new evidence to be presented by the Respondent; (5) Each party to be able to put questions to any witness giving new evidence; (6) The Members Ombudsman may put questions to the parties and any witness giving new evidence at any stage; (7) The Respondent to make closing submissions; (8) The Appellant to make closing submissions The Members Ombudsman shall proceed in the absence of any party, unless he or she is satisfied that there are reasonable grounds for the failure of the party to attend, and shall do so in such manner as he or she considers appropriate The Members Ombudsman may, in the event of a party failing to comply with an order, requirement or instruction of the Members Ombudsman, take any action he or she considers appropriate The Members Omudsman shall give written reasons for: a. The decision in allowing or not allowing the First Appeal, and b. Any order, requirement or instruction which he or she may issue in connection with the First Appeal ( Written Reasons of the Members Ombudsman ) and the Written Reasons of the Members Ombudsman shall be provided to the parties There shall be a final Appeal ( Final Appeal ) from the decision of the Member s Ombudsman in a First Appeal to a tribunal appointed in accordance with clause 6.5, by the Appellant giving notice of the Final Appeal to the Disciplinary Secretary within 21 days of receipt by the Appellant of the Written Reasons of the Members Ombudsman, after which such decision shall become final and binding. As soon as practicable after due receipt of the notice of Final Appeal, the Disciplinary Secretary shall lodge the Final Appeal with a tribunal appointed in accordance with clause 6.5, with the Grounds of Appeal being those lodged in the First Appeal. The decision of this tribunal on the Final Appeal shall be final and binding on all concerned. 10