Dispute resolution

Dispute resolution

Text in italics has been added for our purposes including content from our previous rules of incorporation. Plain text is from the Companies Office's Constitution Builder. Items in bold are defined terms.

Meanings of dispute and complaint

1. A dispute is a disagreement or conflict involving SCANZ (as an organisation) and/or its members in relation to specific allegations set out below.
2. The disagreement or conflict may be between any of the following persons -
   1. 2 or more members
   2. 1 or more members and SCANZ
   3. 1 or more members and 1 or more officers
   4. 2 or more officers
   5. 1 or more officers and SCANZ
   6. 1 or more members or officers and SCANZ.
3. The disagreement or conflict relates to any of the following allegations -
   1. a member or an officer has engaged in misconduct
   2. a member or an officer has breached, or is likely to breach, a duty under SCANZ's constitution or bylaws or the Act
   3. SCANZ has breached, or is likely to breach, a duty under SCANZ's constitution or bylaws or the Act
   4. a member's rights or interests as a member have been damaged or member rights or interests generally have been damaged.
4. A member or an officer may make a complaint by giving to the committee (or any complaints subcommittee set up for that purpose) a notice in writing that -
   1. states that the member or officer is starting a procedure for resolving a dispute in accordance with SCANZ's constitution; and
   2. sets out the allegation(s) to which the dispute relates and whom the allegation or allegations is or are against; and
   3. sets out any other information or allegations reasonably required by SCANZ.
5. SCANZ may make a complaint involving an allegation against a member or an officer by giving to the member or officer a notice in writing that -
   1. states that SCANZ is starting a procedure for resolving a dispute in accordance with SCANZ's constitution; and
   2. sets out the allegation to which the dispute relates.
6. The information setting out the allegations must be sufficiently detailed to ensure that a person against whom an allegation or allegations is made is fairly advised of the allegation or allegations concerning them, with sufficient details given to enable that person to prepare a response.
7. A complaint may be made in any other reasonable manner permitted by SCANZ's constitution. Noting that we also have the process for impeaching a committee member, and R&Ding members(KM)
8. All members (including the committee) are obliged to cooperate to resolve disputes efficiently, fairly, and with minimum disruption to SCANZ's activities.
9. The complainant raising a dispute, and the committee, must consider and discuss whether a dispute may best be resolved through informal discussions, mediation, arbitration, or a tikanga-based practice. Where mediation or arbitration is agreed on, the parties will sign a suitable mediation or arbitration agreement.

How a complaint is made

This seems to be a thinly disguised repeat of clauses 4-7 in the previous section. Is this _really_ necessary? (SC). Yes, at this time - we are using the safe-harbour provisions of Schedule 2 of the Act, which requires us to include all of the processes contained in Schedule 2, including this one (Schedule 2 s2).

1. A member or an officer may make a complaint by giving to the committee (or a complaints subcommittee) a notice in writing that -
   1. states that the member or officer is starting a procedure for resolving a dispute in accordance with SCANZ's constitution; and
   2. sets out the allegation or allegations to which the dispute relates and whom the allegation is against; and
   3. sets out any other information reasonably required by SCANZ.
2. SCANZ may make a complaint involving an allegation or allegations against a member or an officer by giving to the member or officer a notice in writing that -
   1. states that SCANZ is starting a procedure for resolving a dispute in accordance with SCANZ's constitution; and
   2. sets out the allegation to which the dispute relates.
3. The information given under subclause (1.2) or (2.2) must be sufficient to ensure that a person against whom an allegation is made is fairly advised of the allegation or allegations concerning them, with sufficient details given to enable that person to prepare a response.
4. A complaint may be made in any other reasonable manner permitted by SCANZ's constitution. Insert any additional process here (KM)

Person who makes a complaint has a right to be heard

1. A member or an officer who makes a complaint has a right to be heard before the complaint is resolved or any outcome is determined.
2. If SCANZ makes a complaint -
   1. SCANZ has a right to be heard before the complaint is resolved or any outcome is determined; and
   2. an officer may exercise that right on behalf of SCANZ.
3. Without limiting the manner in which the member, officer, or SCANZ may be given the right to be heard, they must be taken to have been given the right if -
   1. they have a reasonable opportunity to be heard in writing or at an oral hearing (if one is held); and
   2. an oral hearing is held if the decision maker considers that an oral hearing is needed to ensure an adequate hearing; and
   3. an oral hearing (if any) is held before the decision maker; and
   4. the member's, officer's, or SCANZ's written or verbal statement or submissions (if any) are considered by the decision maker.

Person who is subject of a complaint has a right to be heard

1. This clause applies if a complaint involves an allegation that a member, an officer, or SCANZ (the 'respondent') -
   1. has engaged in misconduct; or
   2. has breached, or is likely to breach, a duty under SCANZ's constitution' or bylaws or the Act; or
   3. has damaged the rights or interests of a member or the rights or interests of members generally.
2. The respondent has a right to be heard before the complaint is resolved or any outcome is determined.
3. If the respondent is SCANZ, an officer may exercise the right on behalf of SCANZ.
4. Without limiting the manner in which a respondent may be given a right to be heard, a respondent must be taken to have been given the right if -
   1. the respondent is fairly advised of all allegations concerning the respondent, with sufficient details and time given to enable the respondent to prepare a response; and
   2. the respondent has a reasonable opportunity to be heard in writing or at an oral hearing (if one is held); and
   3. an oral hearing is held if the decision maker considers that an oral hearing is needed to ensure an adequate hearing; and
   4. an oral hearing (if any) is held before the decision maker; and
   5. the respondent's written statement or submissions (if any) are considered by the decision maker.

Investigating and determining a dispute

1. SCANZ must, as soon as is reasonably practicable after receiving or becoming aware of a complaint made in accordance with this constitution, ensure that the dispute is investigated and determined.
2. Disputes must be dealt with under the constitution in a fair, efficient, and effective manner and in accordance with the provisions of the Act.

SCANZ may decide to not proceed further with a complaint

1. Despite the "Investigating and determining a dispute" rule above, SCANZ may decide not to proceed further with a complaint if -
   1. the complaint is considered to be trivial; or
   2. the complaint does not appear to disclose or involve any allegation of the following kind:
      1. that a member or an officer has engaged in material misconduct:
      2. that a member, an officer, or SCANZ has materially breached, or is likely to materially breach, a duty under SCANZ's constitution or bylaws or the Act:
      3. that a member's rights or interests or members' rights or interests generally have been materially damaged:
   3. the complaint appears to be without foundation or there is no apparent evidence to support it; or
   4. the person who makes the complaint has an insignificant interest in the matter; or
   5. the conduct, incident, event, or issue giving rise to the complaint has already been investigated and dealt with under the constitution; or
   6. there has been an undue delay in making the complaint.

SCANZ may refer a complaint (mandatory section)

Each of the rules we have included detailing the various dispute resolution processes are those included in Schedule 2 of the Incorporated Societies Act 2022. They are consistent with the rules of natural justice, but only if — your society includes all the processes contained in Schedule 2, and any additional procedures you include are consistent with Schedule 2.

1. SCANZ may refer a complaint to -
   1. a subcommittee or an external person to investigate and report; or
   2. a subcommittee, an arbitral tribunal, or an external person to investigate and make a decision.
2. SCANZ may, with the consent of all parties to a complaint, refer the complaint to any type of consensual dispute resolution (for example, mediation, facilitation, or a tikanga-based practice).

Decision makers (mandatory section)

Each of the rules we have included detailing the various dispute resolution processes are those included in Schedule 2 of the Incorporated Societies Act 2022. They are consistent with the rules of natural justice, but only if — your society includes all the processes contained in Schedule 2, and any additional procedures you include are consistent with Schedule 2.

1. A person may not act as a decision maker in relation to a complaint if 2 or more members of the committee or a complaints subcommittee consider that there are reasonable grounds to believe that the person may not be -
   1. impartial; or
   2. able to consider the matter without a predetermined view.