What most commonly prompts me to write most of my articles about not-for-profits is reading about issues that have arisen (in the media or in a report of a Court case), but this present article has been prompted by personal experience.
It is common for many group sporting and cultural activities to be organised by societies, with participants being members of the society established to facilitate the playing of a sport or involvement in a cultural activity. Participation is commonly based on one of two alternatives:
- Participation is open to “all comers” – as in a social golf tournament, a mah jong group, or an un-auditioned musical group, or
- Participation is subject to some screening process – as in selection for sports teams, auditions to act in a play, or for a place in a choir or orchestra (in which case the selector will also usually determine what each participant does), or by assignment to play or participate in a “grade” (as in the case of a bridge club, for instance).
I have for many years sung in a community choir where the singers are not auditioned (and the practices and performances may therefore suffer if some singers cannot sing in tune or in time!). Recently (the personal experience to which I referred above) I auditioned for and was accepted into an auditioned choir – and this experience lead me to consider the implications for society membership where members are “selected” and may later be “deselected,” and, especially, the possible “rights” of people aggrieved by not being selected, or by being assigned to participate in some way they do not want, or by deselection. With the proposed new Incorporated Societies Act likely to give society members clearer rights to raise “grievances” with societies to which they belong this is an issue many societies should be thinking about now.
Different organisational structures
The implications of merit-based selection and deselection will depend on why people join and the structure of the organisation:
- Those seeking to join a sporting or cultural society to play a sport or to engage in a cultural activity may be motivated by one or more of the following:
- People may join simply to support a particular sport or cultural activity with, possibly, some benefits such as preferential rights to access facilities and attend events. That type of membership may be regarded as being more passive than active.
- Some may join to be actively involved in society activities, such as using the society’s facilities (which it may own or lease) to play a game or to engage in a creative activity, or to perform with other society members in cultural pursuits such as theatrical or musical performances.
- More competitive or highly skilled people may want to represent a society in inter-club activities, such as competitions and tournaments (where there is likely to be a selection and deselection process involved).
Most of those activities involve people in becoming members of a society which organises the activities. The relationship of those members with the society to which they belong is governed by the society’s constitution and by statute (the proposed reform of the Incorporated Societies Act is discussed below).
- Especially in sporting codes, regional and national activities are commonly organised by a society whose members are local or regional clubs not individual players. Such regional or national teams will be selected on merit, but team members will not usually be members of the regional or national organisation. The relationship between those selected with the organisation that runs the regional or national games is most likely to be governed by a contract (either written or implied).
- Some organisations (probably more commonly for cultural activities) may be organised as charitable trusts, governed by trustees and managed by volunteers, employees or contractors. Participants in trust activities may become “members” but without rights similar to those enjoyed by members of incorporated societies, but they may have some contractual rights.
Differing selection, allocation and deselection scenarios
Some of the different issues that may arise include:
- Non-selection to a team or performance group,
- Selection to a team or performance group, but being assigned to play or perform somewhere other than in accordance with the member’s preference,
- Re-assignment from one position to another within the team or performance group, and
- Removal from the team or performance group.
An individual’s options if unhappy with non-selection, placement within, or deselection from the team or performance group
A quick check of a range of society constitutions indicates that these issues are seldom well-considered in society constitutions. In the absence of clear guidance in a constitution, those advising affected society members or the societies themselves, will have to consider whether there are contractual or quasi-contractual rights involved, whether the principles of natural justice may apply, and whether decisions may be subject to possible judicial review in the High Court.
The new Incorporated Societies Act is likely to require that society constitutions spell out a member’s rights in respect of complaints against them and grievances they may have, and that will require societies which select, allocate and deselect members to play or perform being required to spell out the applicable criteria for those decisions in some detail, and also to have appropriate methods to handle member complaints and grievances in accordance with the principles of natural justice. The new Act will give the District Court jurisdiction to deal with incorporated society issues.
Distinguishing between misconduct or misbehaviour and ineptitude
Most commonly, complaints about society members involve some misconduct or misbehaviour. In contrast, where a judgment is made that leads to a member being moved within, or removed from, a team or group that judgment is based on an assessment of the member’s ability to contribute to the team or group. Such a member may behave in an otherwise exemplary way, but a judgment call may be made to move the person within the team or group, or to remove the person totally. That judgment may be partly objective (i.e. capable of being established on the basis of a test) and partly subjective (i.e. based on an opinion), and underlying it is an assessment of skills, performance and aptitude.
Avoiding unnecessary unpleasantness
In a society context, the different interests of those involved must be considered and balanced, especially when skills are being assessed:
- In competitions, a society will usually want the best possible team or group to represent it,
- Society members will want everyone treated fairly, while recognising the need to enable its teams or groups to perform to high standards,
- Members of the society’s teams or groups will want to enjoy being involved and to perform to high standards,
- Those in charge of the society’s teams or groups will want to guide them to perform to high standards, and
- Everyone would prefer to avoid unpleasantness.
To avoid unnecessary unpleasantness a society should address a number of issues, for instance:
- Careful consideration should be given to complying with the principles of natural justice, with those who may be affected by the process:
- Given reasonable, full, clear, and definite notice of the process to be followed and the issues that will be considered,
- Given a reasonable time to prepare for any assessment or test,
- Given a fair opportunity to demonstrate their abilities and skills, and
- Being entitled to have the issues determined in good faith by unbiased people.
- The rights (and feelings) of all those affected by such decisions must be factored into the process.
- If the processes are governed by or under the society constitution (the details may be included in the constitution or in policies, by-laws or regulations made pursuant to the constitution):
- The first fundamental requirement is that the society’s constitution must spell out very clearly the basis upon which team or group members are or may be selected, assigned to participate in different ways, re-assigned, and deselected,
- Those responsible for making the crucial decisions should be protected from undue criticism (having some objective standard for assessment if that is possible and/or having another person involved in the assessment process may assist), and
- Whether or not there is any right to appeal (or right to seek a review of) decisions needs to be made clear, and if there is an appeal or review process how such appeals or reviews are dealt with must also be spelt out.
- If the processes are not adequately governed by or under the society constitution:
- Consideration should be given to amending the constitution to give those processes a better legal foundation, or
- At the very least, ensuring that the processes should be well-publicised and accepted by members.