Club Grievances and Complaint Proceedure

Swim England Handbook 2023 - HERE

The following is the Swim England procedure for W&DSC to ensure any internal disputes between any W&DSC members (swimmers and/or adults) are handled correctly from the outset. Most clubs from time to time have disputes and these can usually be resolved amicably between the individuals concerned.

W&DSC are required to have a fair and open disciplinary system to handling internal club complaints. All disputes will start with a mediation meeting and then progress to a club complaint hearing if required.

The W&DSC constitution is HERE

Why do disputes arise within sport?

Sport is competitive and a highly selective environment, at both amateur and professional level. Energy, focus and commitment, which are essentially qualities for sporting success, can be negative factors when a dispute arises. The passion and emotion at the heart of sport is replicated in every dispute or reasons for a Club Complaint.

These qualities are also seen within volunteers and parents of swimmers, usually to the great benefit of the sports. As with participants, this passion can give rise to a Club Complaint from time to time. Underlying factors that affect upon the resolution of conflict may include emotions, self-esteem, personal values and the need to be heard. Appreciation of these factors is crucial in resolving any sports dispute. Recognition of the need to be heard, and how that need is managed is important in creating a workable solution which will enhance future relationships. 

Definitions:

  • Club Complaint: a complaint involving an alleged breach of the club’s rules or any other dispute not relating to an alleged breach of Swim England regulations, between two or more club members, any or none of whom may be an officer of the club, or one or more club members and one or more employees of the club. 
  • Club Complaint Form: a form, which is completed by the person making the complaint, the respondent and the Club Chair.
  • Club Chair: principle officer of the Club
  • Complainant: a party who makes a Club Complaint.
  • Respondent: a party subject to a Club Complaint.

Club Complaint

If any member of W&DSC has a complaint against another member of the club (swimmer, parent, coach, official, volunteer etc) then the club will follow the below steps.

Flowchart of complaint - Stage 1

  1. Club receives the club complaint of a allegation of rule breach - club chair will ask complainant to fill in club complaint form and return.
  2. Informal resolution
  3. Mediation
  4. Club Hearing

After the following the above process to deal with the club complaint, either the complaint will be completed and filed away, or will proceed to stage 2 of judicial complaint (see below for stage 2). 

1. Club Complaint

A Club Complaint is any internal Club dispute between members of a Club concerning an alleged breach of the Club’s rules.

Making a Club Complaint

Any member of a Club may make a Club Complaint. Prior to doing so, the parties to the dispute should seek to 2.resolve the matter informally, within two weeks, such as by having a discussion informally and amicably. If the matter cannot be so resolved, the Complainant should request, as soon as reasonably possible, a copy of the Club Complaint Form from the Chair of the Club. The Chair is reminded to send this form out as soon as possible. The Club Complaint Form should be completed and returned to the Chair (or nominee) within seven days of receipt. Once returned, it will be forwarded to the Respondent within three days, who will have seven days to complete and return the form with their response to the complaint. The Club Complaint Form includes an administrative section for the Club Chair (or their nominee) to complete as the matter progresses. It is essential that this section is completed and a copy of the final form sent to the parties to the Club Complaint. If a Judicial Complaint is made following a Club Complaint, the completed form, documenting the Club’s actions, will form a key piece of evidence for the Club.

To request the club compliant form please email W&DSC club chair at: [email protected]  

3. Mediation

Mediation is a structured process whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. The Club Chair of the Club shall appoint an independent person to act as mediator. The mediator will seek to arrange a meeting, either in person or on video call, within 14 days. 

What are the benefits of mediation?

Although mediation is optional to parties, Swim England strongly recommends that individuals consider mediation of a means to resolve a Club Complaint. While it is unlikely to result in both parties to the complaint obtaining their ideal outcomes, it can produce an outcome that both are satisfied with, whilst preserving and repairing the relationship between the parties. 

Mediation has the following benefits:

  • The parties retain ownership of the dispute, and do not hand power to the mediator.
  • Parties are able to control the outcome and cannot be forced to accept a solution. This control shall be lost in the event that a matter escalates to a hearing.
  • A party is free to walk away at any time before a settlement agreement has come to fruition.
  • Mediation is confidential.
  • The process is flexible at the discretion of the mediator and can very often be a speedy and efficient means of resolving a dispute.
  • It can help preserve and repair the relationships between the parties and/or the Club, unlike a hearing, which usually occurs after such relationships have totally broken

The mediation process

Before, for mediation to work, it is essential that both parties agree to the independent mediator. The mediation will be held as quickly as required and it is important to consider how long the mediation may take given the topic at hand. Seek to schedule the mediation on a date and time, which will avoid time pressures. We also encourage those attending mediation not to arrange any personal events that would require them to leave at a set time. Mediation should be held in person if possible, due to the benefits of bringing those involved in a dispute into one room. The venue chosen should be convenient for the parties while ensuring confidentiality. If an in-person mediation cannot be held, it may be held over videoconferencing software. The process is confidential and generally without prejudice to ongoing proceedings and/or discussions relating to the dispute in question. Breach of confidentiality may in itself give to a Judicial Complaint.

During, the mediator should:

  • remain independent and neutral throughout;
  • not force a settlement;  
  • not provide advice;
  • provide a forum in which to dissect the past whilst also thinking forward. Strong views on each side may be safely expressed but it should not be seen as an opportunity for a heated argument;
  • not be afraid to call time if a line of discussion is proving fruitless;
  • keep the process confidential; and
  • record the outcome of mediation;

A mediator could:

  • challenge preconceptions by testing thought processes for example, by asking “why do you think you were overlooked for the training camp? Is there another way of looking at what happened that seems plausible”;
  • explore the views of the parties;
  • support both parties by guiding them to clear communication and manage emotions helping parties to make your points calmly and clearly; and/or
  • suggest a night’s sleep to reflect on the discussions that could assist the parties in reaching an agreement however, the mediator is reminded that there are time restrictions in place. 

What happens after mediation?

The mediator must share the outcome of the mediation in writing to the complainant, respondent and the Club Chair as stated in regulation 103.4.3. If mediation was successful, the details of the agreement between the parties shall be recorded on the Club Complaint Form by the Club Chair. If the mediation is unsuccessful, the mediator shall notify the Chairperson of the Club (or their nominee) in writing only that the mediation has failed without providing any additional detail. Once this has been received, the Chair will have 7 days to appoint a panel of three members to determine the Club Complaint. This will then go to a Club Complaint Hearing procedure.

4. Club Hearing

If the Parties do not agree to mediation or mediation fails, the Judicial Regulations require that a Club Complaint Hearing takes place. A Club Complaint hearing is a process in which a Club Complaint between two parties is resolved by a panel of three independent members who, after listening to each party, decide upon an appropriate outcome. Such a hearing is part of the Club Complaints procedure. If mediation is unsuccessful or does not occur, then the Club Complaint will be resolved through a hearing.

The Swim England Handbook, Regulation 103.5, details the hearing proceedings that Clubs must follow.

Natural Justice refers to the basic principles of fair treatment for individuals who have a dispute, which is being heard by a body, including a Club Complaint panel. These principles include the duty to ensure a fair hearing; the duty to ensure that someone who is impartial decides the matter; and the duty to allow an appeal against a decision (through a Judicial Complaint). A Club Complaint hearing is rooted in the principles of natural justice and it is essential that these principles be adhered to throughout the Club Complaints process.

Before the hearing

Within seven days of the mediation either not being agreed to, or the mediation failing, the Club Chair shall organise a panel of three independent members to hear the Club Complaint. The panel consists of three individuals who have had no involvement in the Club Complaint. One of these individuals shall be the Panel Chair. The Club Chair, or their nominee if involved in the Club Complaint, is responsible for assembling the panel. Ordinarily, the Club Chair should contact their Region to request that it proposes an independent person to serve as the Panel Chair. Where such a person is not proposed, the Club Chair (or their nominee) should themselves appoint the Panel Chair. The Club Chair must also appoint two independent wing members. Once appointed, the Chair must communicate the identities of the panel to the parties to the Club Complaint. Either party can object to a panel member’s appointment within three days of being notified of the panel members.

The grounds for objection to a panel member’s participation are (Regulation 103.5.3):

  • the panel member has prior involvement in the complaint;
  • the panel member will be realistically or may be adversely affected by the club complaint; and
  • the panel member will be or realistically may be conflicted in determining the club complaint.

The Panel Chair should then set a date for the hearing, which should take place within 28 days of the panel appointment. The parties must be notified at least 14 days in advance. Once set, the date may only be changed for a compelling reason and with the approval of the panel. Please ensure that the hearing is held in person where possible, and the venue is appropriate to hold a hearing. You may need two rooms within the venue or a place to separate the witnesses and the hearing. A hearing may be conducted via videoconferencing software where an in-person hearing is impractical.

Holding the Hearing

Natural Justice must be adhered to throughout the process as it ensures the parties receive a fair hearing. The conduct and procedure of the hearing shall be determined by the Panel Chair who will have discretionary powers over such. The proceedings should be flexible.

Normally, the Panel Chair invites the parties, representatives, witnesses and others with interests into the room in which the hearing will be conducted. The Panel Chair will introduce themselves and the other panel members to those present, after which the parties and others present will be invited to introduce themselves. The Panel Chair will outline the manner in which they intend to conduct the hearing and then ask all witnesses to leave the room. The complainant will present their case before the panel. When the complainant’s presentation has been completed, the Respondent will be invited to question the complainant. The panel may, and usually do, question the complainant. The complainant will then usually be invited to call their witnesses (one at a time) to give their evidence. As the witnesses complete their evidence, the Respondent and the panel may question them. Please note that witnesses shall normally be provided with an area outside the hearing room to wait while they are not taking an active part in the proceedings and shall not take any part in the hearing other than giving evidence and responding to questions, which may be asked of them by the Club Panel only. Each party may usually call no more than three witnesses unless the panel agrees there is a compelling reason to allow more. The parties involved must obtain consent for all witnesses called and they should only provide factual information specifically related to the Club Complaint. Once the Complainant has stated their case and any witnesses have spoken, the process will usually be repeated for the Respondent.

Once complete, the Panel Chair may wish to finish the proceedings by inviting final comments from each party. Once each party has finished making their points, the panel will make a decision, which will be documented as a Club Complaint Outcome. The Panel’s decision is by a majority and on the balance of probabilities. If it fails to reach a majority decision on any issue, the decision of the Chair to the Panel shall be final. If either party fails to attend the hearing, the panel can proceed, taking into account any written submission.

Club Complaint Panel Powers

The panel must ensure that Natural Justice is adhered to throughout the hearing. Where the panel finds that there has been a breach of the Club’s rules (as stated in Regulation 103.6.1). They may:

  • apply sanctions to a member relating to activities wholly within the Club’s power, up to and including suspension from any or all of them (for example, including but not limited to training with the Club, competing for the Club in Club competitions and volunteering for the Club); and/or
  • submit a Judicial Complaint to the Commissioner in accordance with Regulation 104. If the alleged offence is deemed a breach of Swim England Regulations, the Club shall not deal with it but may instead make a Judicial Complaint to the Commissioner under Regulation 104.

Outcome Once the panel has come to a decision, it shall be recorded in writing as a Club Complaint Outcome, shall be dated and signed by the Panel Chair and, unless otherwise agreed, shall be accompanied by the reasons on which it is based.

The Club Complaint Outcome should include:

  • a list of individuals in attendance from each party;
  • a list of panel members in attendance;
  • a description of the disputed issue;
  • a rough outline of evidence before the panel;
  • the facts found including a background if necessary; 
  • conclusion, determination and sanction (if any); and
  • who it should be sent to

Once the Club Complaint Outcome is complete,

It should be distributed to the parties to the Club Complaint and the Club Chair within 14 days of the date of hearing. The Club Chair should also note the outcome on the Club Complaint Form. A Club Complaint hearing is a confidential process. Accordingly, the Club Complaint Outcome should not be distributed or discussed beyond those who the Panel Chair states should see it. Breach of confidentiality may result in a breach of Swim England Regulations and a Judicial Complaint. The Club Complaint Outcome is final and binding unless there are grounds to make a Judicial Complaint. Next Steps The Club Chair shall complete the Club Complaint log form, including details of the hearing and Club Complaint Outcome, and provide a pdf copy to all parties to the Club Complaint. Either party may escalate to a Judicial Complaint if they believe that the Club Complaints procedure or natural justice have not been complied with under Regulation 103. They can also escalate if they believe that the sanction imposed by the panel is disproportionate. A Judicial Complaint may not be made by a party to a Club Complaint on the sole basis that the Club Complaint Outcome was not in their favour. 

Stage 2 - Judicial Complaints (Regulation 104)

Making a Judicial Complaint A Judicial Complaint may include:

  1. a complaint alleging maladministration, misconduct or serious misconduct by a Club or individual;
  2. a complaint arising from a water polo match following conduct which, in a referee or delegate’s view, warrants a sanction more severe than a water polo automatic sanction;
  3. a complaint alleging a breach of Swim England Regulations or the Code of Ethics;
  4. a complaint arising out of a Club Complaint outcome (see above); or
  5. a protest appeal.

An individual may make a Judicial Complaint by filing a completed Judicial Complaint Form with the Office of Judicial Administration. A copy of this form can be obtained from the same. When providing you a copy of the Judicial Complaint Form, the OJA may also offer to put you in contact with a Swim England Friend to provide advice on the specifics of your concern.

The time limit for the submission of a Judicial Complaint is 30 days from the date of the alleged breach of the SE regulations or the receipt of the club complaints outcome.

The full complaints procedure and the steps of a Judicial complaint can be found in the Swim England Handbook (above).