National Discipline Committee (NDC)

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LTB 943/12 - National Discipline Committee (NDC)

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No. 943/12

Ref : SS/SW

Date: 19 December 2012



To All Branches

Dear Colleague,

National Discipline Committee (NDC)

Further to LTB No: 433/12 issued on 1 June 2012, the NEC has reviewed the revised NDC byelaws that were introduced from 8 June onwards.

It was decided that there is a need for further slight modifications in the light of experience. There are four specific changes:

1. Byelaw 3(g) has been amended so that the offer to resolve the issue of concern by third party mediation is made to both parties rather than just the charged party.

2. The cross-reference in byelaw 3(h) to 3(a) has been changed so that the cross-reference is now to byelaw 3(e). This means that the charged member needs to notify the officer to the NDC at an earlier stage than was previously the case, whether or not they intend to defend the charge or not and if so to provide written submissions.

3. Byelaw 12 has been changed such that an indexed bundle comprising all documents submitted by both sides, a list of witnesses and statements from all witnesses shall be circulated to the NDC and the parties in not less than 10 calendar days before the date of the hearing. The previous requirement was 14 days, but this meant that there was no gap whatsoever between the deadline for receipt of documents and when they had to be despatched. The revised byelaws are still more generous than the arrangements that existed before June 2012 when the bundle was only despatched to the parties 7 days prior to a hearing.

4. Finally, byelaw 12(b) has been amended as the NEC believed the wording was not as clear as it should be. The meaning is unaltered.

These byelaws apply from 12 December 2012 and therefore all NDC cases opened on or after that date will be governed by them.

A motion will be submitted to General Conference 2013 seeking endorsement for these byelaws as is required under Rule 14.3.3.

The advice offered to branches in LTB 433/12 regarding precautionary suspension of a representative's credentials still applies, as does the standing invitation from the committee to make itself available to branches and regions who would like more information.

Any queries should be addressed to my office at CWU headquarters.

Yours sincerely,

Simon Sapper
Assistant Secretary

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NATIONAL DISCIPLINE COMMITTEE – BYE-LAWS

A. GENERAL

1. These Bye-laws are made by the National Executive Council (NEC) pursuant to Rule 14, Section 3, paragraph 3 of the Union’s Rules and may be amended or rescinded at any time by resolution of the NEC.

2. At its first meeting after their election, the NEC shall appoint three of its members to constitute a Disciplinary Committee, with full authority to deal with and determine all matters calling for disciplinary action under the rules.

(a) There shall be three named substitutes to replace any or all members of the National Discipline Committee if they are not available.

(b) A member of the NEC who has any direct personal interest in the outcome of the proceedings shall not be permitted to participate in any such case.

(c) It shall not be necessary for the NDC members deciding the prima facie case to be the same members as those who subsequently hear the case in full.

(d) No member of the NDC hearing a case shall participate in the decision on that case unless they have been present throughout the Hearing.

3. Upon receipt of the notification of a charge against a member, the General Secretary shall ensure that the charge is put to the individual and their Branch without delay.

(a) Where the charge relates to the actions of a CWU Representative, the Representative’s credentials or office may be suspended pending the conclusion of the discipline process. This can be done by the Branch or by the National Discipline Committee as follows:

(b) Any Branch Officer or member of a Branch can instigate a charge. Once the charge has been submitted to the General Secretary under the CWU rules, the Representative’s Branch can then suspend the individual’s credentials or office and must immediately inform the Officer to the NDC when doing so, but must not inform the Employer. The charged CWU representative must be advised by the charging Branch that they may appeal against this to the National Discipline Committee; or

On receipt of a charge the National Discipline Committee may suspend the individual’s credentials or office.

(c) On receipt of notice of a suspension by a Branch the NDC will convene to determine whether to uphold the suspension, normally within 2 working days of receipt of the notice. The National Discipline Committee will generally only regard the suspension of a CWU Representative’s credentials as appropriate if there are clear indications that not to suspend credentials would bring the union into disrepute and/or compromise the safety of other members

(d) There is no right of appeal of the NDC decision to suspend credentials.

(e) A charged member shall be supplied with full details of the charge itself, the name of the person or Branch bringing the charge, together with a copy of submissions made in relation to it, the available evidence, a copy of these Bye-laws, Rule 14 and such other rules as may be appropriate. The charged member will also be invited to make any written submissions in relation to the charge made and to be received by the Officer to the NDC within the appropriate time limit and will be notified of the date of the NDC meeting convened to determine a prima facie case.

(f) The charging and charged members will also be required to confirm, to the best of their ability, that there are no outstanding employer’s procedures contemplated or in progress against any of the parties to the case. In cases where there is prospective or actual action by the employer in respect of one or more of the parties involved, the NDC will normally not progress the case until the employer’s interest has been terminated.

(g) The parties will be offered the option of informal resolution using third party mediation at the outset.

(h) The charged member must notify the Officer to the NDC, no later than 7 days prior to the NDC meeting, as notified under Section 3(g), if he/she intends to defend the charge or not, and if so, provide written submissions.

(j) Where a rebuttal of a charge by the charged member(s), in case that has already been submitted, includes a separate case referral to the General Secretary under the CWU Discipline rule against the charging member(s), the NDC may determine both charges as one.

4. The Officer to the NDC shall convene a meeting of the Committee, without delay, to
consider the charges, supporting evidence and submissions made. The Committee
shall decide whether to call for an investigation, offer third party mediation, or
proceed to determine whether or not a “prima facie” case has been made.

(a) At the meeting, the NDC must consider any written submissions made by the
charged and charging member.

(b) Where the NDC calls for an investigation, no decision as to whether or not a
prima facie case exists shall be made until the investigation report is
received.

(c) Where the NDC determines that a prima facie case does not exist, the
Officer to the NDC shall ensure that all parties are so advised without
Delay providing a brief summary of the rationale of the NDC decision.

(d) Where the NDC determines that a prima facie case does exist, the parties to
the case shall be summoned to a meeting of the NDC, where the full case will
be heard, unless the charged member indicates their intention not to defend
the case.

(e) Where a charged member indicates their intention not to defend the case, the
NDC will determine the case.

(f) There is no right of appeal against the decision of the NDC on whether a
prima facie case exists.

5. A Hearing of the NDC, convened under Bye-law 4(b), shall take place at such
time, date and place as the NDC shall determine is fair and reasonable in all the
circumstances. Once notified, dates for the hearing, submission of documentation and all other matters will only be varied in exceptional circumstances.

a) The NDC will meet to decide whether a prima facie case exists or whether further investigation is required within 6 weeks of the Officer to the NDC receiving the charge from the General Secretary.

b) Where a prima facie case exists, the NDC will convene a hearing within 56 calendar days of the prima facie case decision.

c) Where further investigation is required this will be completed, where possible, within 28 calendar days.

d) Not less than 28 calendar days’ notice of the Hearing shall be given to all parties.

e) Where the charged person’s own Branch has not brought the charge, any Branch of the members involved with the case shall have a right to be informed of the charge, the name of the members involved, the date of the Hearing and the outcome.

f) The National Discipline Committee will seek to ensure that all cases are heard and decided upon within 6 months of the charge being laid.,

g) The National Discipline Committee will always seek to comply with the timescales specified in the byelaws, but it is recognised that it may not always be possible to do so because of exceptional circumstances that may apply.

h) Throughout the NDC process, charging members have a requirement to demonstrate that the rules of the union have indeed been breached in the manner suggested by their case. The NDC will intervene in an appropriate manner if they have reason to believe that the unfounded allegations are being made by either charging or charged parties to a case. In some circumstances this may lead to the NDC themselves referring an alleged breach of the union’s rules to the General Secretary under the CWU Discipline Rule. If the NDC refers a case it will be considered by a newly constituted NDC.

6. The charged member must notify the Officer to the NDC, within 14 days of receipt of the notice under 5(e), if he/she intends to defend the case or not.

(a) Such notice must confirm whether an oral Hearing is requested or not.

(b) Where an oral Hearing is not requested, any further written submissions must be received by the Officer to the NDC not less than 14 calendar days before the date of the Hearing.

(c) If the charged member fails to notify their intention and/or fails to attend the meeting of the NDC, then the NDC shall hear the case in their absence and may make such decision as it sees fit.

7. Any Branch presenting a charge against a member shall nominate a senior
elected Branch Officer to represent it at the Hearing and no other member shall
be permitted to represent the Branch at the Hearing. A Branch of the Union may,
if it so desires, present a charge and any supporting evidence in writing.

8. A member of the Union who presents a charge against any other member, shall
be given the opportunity to present the charge at the Hearing. A member who
presents a charge may, if they so desire, present the charge and any supporting
evidence in writing.

9. Any individual member presenting a charge, or any charged member, may be
represented by another member of the CWU.

(a) No party to a charge or anyone with an interest in a charge may be represented by a Solicitor, Counsel or any other person who is not a member of the Union.

(b) If a member is to be represented, then they must notify the Officer to the NDC of the name of their representative not less than 14 calendar days before the Hearing.

(c) For the purpose of these Bye-laws, the notified representative of a party shall be recognised as that party.

(d) The Officer to the NDC, if requested by either party, will appoint a representative to either party of equal standing within the CWU.

10. All relevant documents upon which either party intends to rely must be provided
to the Officer of the NDC not less than 14 calendar days before the date of
Hearing.

11. The NDC may, at any stage prior to and at the Hearing, ask for reports, written statements or summon certain witnesses to attend, as it sees fit in relation to any charge before it.

(a) Any direction made by the NDC to any member of the Union shall have
the status of decision of the NEC.

(b) If necessary, the NDC will adjourn the Hearing to allow for circulation and
consideration of new evidence.

12. An indexed bundle comprising all documents submitted by both sides, a list of witnesses (indicating which witnesses are intended to be called in person), and statements from all witnesses shall be circulated to the NDC and the parties not less than 10 calendar days before the date of the Hearing.

(a) In the event that inclusion of any document or witness is challenged on any grounds by either party, the NDC shall determine which documents or witness/witness statement may be admitted.

(b) The Committee’s decision to admit or not admit a document, or a witness statement, be final.

13. It will be the responsibility of the parties to notify the Officer to the National
Discipline Committee of the names, addresses and telephone numbers of all the
witnesses they intend to call, not less than 14 calendar days prior to the date of
the Hearing.

(a) The Officer to the NDC shall notify all witnesses of the date, time and place of the Hearing not less than 10 days prior to the Hearing.

(b) It is the responsibility of the parties to ensure that their witnesses are in attendance at the Hearing.

14. Any witness called by either party to a charge must be a member or employee of the Union. An employee may only be called where they are the sole or a key witness. Employees cannot be compelled to attend as a witness.

15. The NDC may authorise payment of actual incurred expenses in full or part
from Head Office funds for parties, witnesses or others, at its own absolute
discretion.

16. If the NDC finds a charge against a member proven to its reasonable satisfaction
on the available evidence, it may impose such penalty as provided for under the
CWU Discipline Rules as it is reasonably satisfied is just in all the circumstances.

17. An Appeal against a decision of the National Discipline Committee can be made to an Independent Review Body, but can only be brought by the charged member.

B. HEARING

1. The Chair shall invite the party presenting the charge(s) to make an opening statement and to state the grounds for the charge(s).

2. The Chair shall then ask the charged member whether they admit the charge(s). If the member admits the charge(s), the Chair shall invite a brief statement from the charging member and a brief statement of mitigating circumstances from the charged member. Once any such statements have been made, the Committee shall proceed to consider the penalty (if any) to be imposed.

3. In the event that the member does not admit the charge(s), the Chair will invite the party presenting the charge to call any evidence in support, whether by way of previously agreed witnesses in person or previously submitted written statements. Evidence from witnesses shall not be taken on oath.

4. After the evidence in support of the charge has been completed, the charged member or their representative will have the right to make a statement and to present any previously agreed evidence to the NDC and to call previously agreed witnesses in answer to the charge.

5. At any stage in the proceedings, the Chair and/or members of the NDC, the parties and/or their representatives may with leave of the Chair, ask any questions of a witness or a party to the proceedings. Normally, such questions shall be directed at the party or witness whose evidence is being heard. However, previous witnesses and/or parties may be questioned if the Chair so directs.

6. The Chair shall conduct the proceedings fairly and ensure that both parties are able to present their respective cases effectively and fully without undue pressure of time.

7. After the conclusion of the evidence called in defence of the charged member, the Chair will invite both parties to make a short final submission in support of their respective cases.

8. The Committee will then consider the evidence heard and submissions made by both parties, in private. Their decision will be given, in writing and with a brief rationale, to all parties as soon as possible after the Hearing.

9. The Committee shall have the ability to provide advice without penalty.

10. The proceedings of NDC hearings will be digitally recorded, with a copy retained securely at CWU HQ for a period of not less than 7 years from the date of the hearing.

11. All parties attending the Hearing are entitled to be treated with respect and dignity in line with the CWU Rules. Failure to adhere to any CWU Rules in a hearing may result in a disciplinary charge being laid by the NDC under the CWU Discipline Rule...

12. The CWU National Disciplinary Committee Hearings are confidential and it may be a disciplinary offence under the CWU Disciplinary Rule if information referred to in a Hearing is subsequently used for pursuance of claims against individual members of the CWU with their employer.

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Does all that mean the CWU are going to start conduct coding us as well now?

Rule 14 Discipline
1. General
1. Matters of a disciplinary nature arising from the rules or regulations of the Union
affecting Union members shall be dealt with in accordance with this rule.
2. A member shall be liable to disciplinary action in respect of the following:
a) Acting in breach of the Rules of the Union;
b) Behaving in a manner contrary to the interests of the Union;
c) Failing to carry out lawful and reasonable instructions of a Branch, the NEC,
Annual or Special Conference;
d) Being a member of a union or association of employees, the interests of
which conflict with those of the Union, or speaking or circulating literature on
behalf of any such union or association.

2. National Discipline Committee (NDC)
1. All matters calling for disciplinary action shall be determined by the NDC, which
shall consist of three members appointed by the NEC. There shall be three
named substitutes to replace any or all of the members of the NDC if they are not
available.
2. The Committee shall be served by an Officer appointed by the General Secretary.

3. National Discipline Committee Powers and Procedures
1. All matters requiring consideration under this rule shall be referred by the General
Secretary to the NDC. Such matters may be referred by either a member or a
Branch.
2. The NDC has the power to require the production of written evidence and
attendance of witnesses who are members of the Union. In the event of nonproduction of written evidence or non-attendance by either of the parties involved,
the Committee has the right to take a decision in their absence.
3. The NEC shall prescribe regulations governing the procedure for the conduct of
all cases before the NDC and may amend such regulations from time to time.
These amendments shall be subject to endorsement at the subsequent General
Conference.
4. A Union Representative accused of being involved in conduct that brings the
Union into disrepute may have their credentials or office suspended pending the
outcome of the discipline process. -52 -
This can be done in two ways:
a) On receipt of a charge a Branch may suspend the individual’s credentials or
office. This carries the right of appeal to the NDC; or
b) On receipt of a charge, the NDC can suspend the individual’s credentials or
office
In relevant circumstances if suspension is deemed appropriate it must be done
quickly and Branches are required to consider this option in the relevant
circumstances. Suspension of credentials or office can only be done as part of
the process involving National Discipline and at no other time.
5. The NDC shall consider each charge and conclude whether or not a prima facie
case exists. If a prima facie case exists it shall proceed to a full hearing of the
NDC. The NDC will conclude their deliberations on each case within six months
of the charge being laid unless there are exceptional circumstances.
6. Following the full hearing of a complaint the NDC may exercise any one or more
of the following powers:
(a) censure the member concerned;
(b) fine the member such sum as the NDC shall consider fair and reasonable,
having regard to the circumstances;
(c) suspend the member from membership or from all or any benefits of
membership for such time as may be determined;
(d) remove the member from any office;
(e) disqualify the member from holding office for such period as the NDC may
determine;
(f) impose a suspended sentence for so long as the NDC shall consider just
and reasonable;
(g) expel the member from the Union.
7. If a fine imposed by the NDC is not paid within twenty-one days of the date of a
demand in writing addressed by the General Secretary to the member at their last
known address, the member shall be automatically expelled from membership of
the Union.

4. Independent Review Body (IRB)
1. The NEC shall prescribe regulations governing the procedure for the conduct of
all cases before the IRB and may amend such regulations from time to time. -53 -
2. There shall be the right of appeal against decisions of the NDC to an IRB. In all
cases of appeal, the decision appealed against shall be suspended pending the
hearing of the appeal. An appeal against a decision of the NDC can only be
brought by a charged member.
3. The IRB shall consist of two members and an Independent Chair.
4. The IRB shall be served by an Officer appointed by the General Secretary.
5. The members of the IRB shall comprise one member elected by and taken from
the Postal Constituency and one member elected by and taken from the
Telecoms and Financial Services Constituency. The members of the IRB shall
be elected biennially. Members of the NEC, PE and T&FSE shall not be eligible
to be members of the IRB.
6. The decision of the IRB shall be final and binding on the appellant and the Union.

5. Functions of the General Secretary and the Discipline Officer in
Relation to Disciplinary Matters
1. The Officer to the NDC shall be responsible for the documentation of matters
requiring consideration by the NDC and for recording the proceedings of the
Committee.
2. The Officer to the NDC shall notify the General Secretary, who shall notify a
member of their rights under the rules of the Union and of the consequences of
failure to comply with any direction issued, or any penalty imposed by the NDC.