* Last revised December 3, 2021
A. Purpose
1. This by-law is enacted pursuant to section 10.1 of the Constitution.
“10.1 A member whose conduct is considered by the Board of Directors to be contrary to the stated purposes of AMAPCEO and/or detrimental to the interests of AMAPCEO or its membership, shall be asked by the Board to explain or justify such conduct. If the member is unwilling to do so or if the explanation is deemed inadequate, the Board may impose disciplinary measures against the member. The disciplinary measures shall be in accordance with any by-law that the Board may enact. The member concerned shall have the opportunity to address the Board before the Board considers the question. Approval of such a motion shall require at least a two-thirds vote.”
It refers only to matters conducted under this section and does not apply to any other proceedings that may exist elsewhere in the Constitution.
2. This by-law has been enacted to provide a member accused of misconduct, as defined in Section 10.1 of the Constitution and further defined in this by-law, a fair and transparent process to dispute the allegation or defend their conduct, before the Board of Directors imposes any disciplinary measures.
B. Principles
In accordance with AMAPCEO’s Constitution, by-laws, policies, AMAPCEO’s Activist’s Code of Conduct, and AMAPCEO’s principles of equity and inclusion as outlined in AMAPCEO’s Equity Statement, all members, and officers:
- Shall have the right to full and equitable participation in AMAPCEO, without risk of harassment, discrimination, exclusion, or any other impediment to full democratic inclusion;
- Shall always act with honesty, integrity, and respect for the human rights of others;
- Shall not act in a manner that is contrary to the stated purposes of AMAPCEO, or in a manner that is detrimental to the interests of AMAPCEO or its membership
The AMAPCEO Board of Directors will not impose discipline against a member alleged to have engaged in misconduct until that member has been provided the opportunity to answer those allegations through a fair and transparent trial process.
The Board of Directors and the Executive Committee shall not make decisions under this by-law that are arbitrary, discriminatory, or in bad faith
C. Definitions
By-law 4: Member Complaint Resolution: which establishes guidelines and a process for resolving conflicts and disputes between two (2) or more members. See By-law 4 for more details.
By-law 9: AMAPCEO’s Activist Code of Conduct: which governs the conduct of AMAPCEO. See By-law 9 for more details.
Ombudsperson: A senior staff member of AMAPCEO who has been assigned to act as an impartial intermediary to assist members in conflict to resolve their differences. See Board policy entitled Role of the Ombudsperson for more information.
D. Misconduct dealt with under this by-law
Any member who engages in, or has been alleged to engage in, the following misconduct may be subject to a misconduct trial, and possibly discipline, under this by-law:
(a) Violating AMAPCEO’s Constitution and By-laws;
(b) Working in the interests of another union against AMAPCEO;
(c) Failing to respect an AMAPCEO picket line;
(d) Working behind a picket line during a work stoppage when under no legal duty to do so, or unless authorized by AMAPCEO;
(e) Engaging in any strikebreaking activity, including lockouts, during an AMAPCEO labour dispute;
(f) Violating AMAPCEO’s Constitution, By-laws, or policies regarding the fair and proper conduct of elections in a manner deemed by the Elections and Credentials Committee to warrant investigation and corrective measures;
(g) Gaining elected office within AMAPCEO by dishonesty or misrepresentation;
(h) While holding elected office in AMAPCEO, failing to perform the duties or obligations of their office in good faith, or performing those duties in a way that could reasonably be understood to breach AMAPCEO’s duty of fair representation;
(i) While holding elected office, helping another organization or another union, or an unauthorized lawyer, paralegal, or legal firm, seeking to service, represent, or negotiate on behalf of AMAPCEO members;
(j) While holding an elected or activist position, breaching confidentiality by disclosing details of confidential Board or Executive Committee proceedings or disclosing members’ personal information;
(k) Coercing, intimidating, or deliberately interfering with any official of AMAPCEO from carrying out their obligations or duties or exercising their rights under the Constitution and By-laws;
(l) Publishing or circulating, by mouth or other means, false reports or deliberate misrepresentations concerning AMAPCEO;
(m) Slandering or libeling any elected officer, appointed activist, member of AMAPCEO, or AMAPCEO staff;
(n) Taking legal action, or encouraging members to take legal action, against AMAPCEO, its officers, or members (unless it is over the right to fair representation) before trying to resolve the matter through the processes outlined in By-law 4: Member Complaint Resolution;
(o) Fraudulently receiving money payable to AMAPCEO, or misappropriating funds or properties of AMAPCEO;
(p) Using the name of AMAPCEO for soliciting funds, advertising, and the like, without the consent of the Board of Directors;
(q) Bringing forth frivolous, vexatious, or malicious accusations or complaints, which have no foundation in fact and are filed to bring an adverse consequence to an elected official, an activist, or member of AMAPCEO;
(r) Attempting to interfere with, or retaliate against, a participant in the member dispute process as outlined in By-law 4 Member Complaint Resolution, or the trial process as outlined in this By-law.
E. Allegation of Misconduct
Any member may report an allegation of serious misconduct by filing a complaint with the Executive Committee via the Secretary or President/CEO, or via the Ombudsperson. The following details should be included when filing a complaint of misconduct:
(a) The name of the member(s) and witness(es) (if applicable);
(b) A description of the alleged misconduct, or incident (s), including relevant date(s) and time(s); and
(c) Any evidence supporting the allegation.
Upon receipt of a formal misconduct complaint, the Executive Committee will initially review the complaint, along with the documentation and evidence, and shall determine:
(a) That due to the seriousness of the alleged misconduct the matter should be referred to the Board under Section 10 of the Constitution for a determination of the next steps;
(b) That the misconduct allegations are best dealt with through the application of either By-law 4: Member Complaint Resolution, or By-law 9: Activist Code of Conduct; and, as such, the Executive Committee shall refer the matter to the Ombudsperson for disposition;
or
(c) That the allegations are frivolous, or without merit, and must be dismissed without any referral.
The Executive Committee may contact the member who filed the complaint to request additional information before making a decision.
The Executive Committee may also refer a member complaint that has been filed under By-law 4: Member Complaint Resolution, or an alleged violation of By-Law 9: Activist Code of Conduct, to the Board via section 10.1 of the Constitution due to the seriousness of the alleged misconduct.
D. Board of Directors Review of the Misconduct Complaint
Once a misconduct complaint has been referred to the Board of Directors from the Executive Committee, the Board of Directors shall have up to one year to review the complaint and determine if the misconduct trial processes as outlined in this by-law shall be used to investigate and decide on the allegation. Should the Board of Directors not take any action on the complaint within this period, the complaint shall be deemed withdrawn and closed.
A decision to proceed to a misconduct trial requires the support of at least two-thirds (2/3) of the Board of Directors, otherwise, the misconduct complaint shall be dismissed.
E. Misconduct Trial Process
Within 15 working days of the Board of Directors deciding that a misconduct complaint should proceed to trial, the Board of Directors shall designate the Executive Committee to serve as a Trial Committee.
Should the Executive Committee believe that, due to the nature of the alleged misconduct, the trial should be conducted by an independent third party, they shall have the authority to make such a referral. The third party shall follow the trial process as outline in Part F of this policy, and submit a report of their findings to the Executive Committee at the trial’s conclusion.
Any Executive Committee member directly involved in the alleged misconduct as the Complainant or witness shall not serve on the Trial Committee. In such situations, the Board of Directors may choose to appoint a member of the Board of Directors to the Trial Committee. Should three (3) or more members of the Executive Committee be directly involved in the alleged misconduct, the trial shall be conducted by an independent third party. The third party will conduct the trial as outlined in Part F of this policy, and render a decision as outlined in Part G of this policy.
The Trial Committee shall choose from among them a Chair. The AMAPCEO Board Secretary shall serve as the Secretary for the Trial Committee. If the Secretary is unable to serve on the Trial Committee, another member of the Trial Committee shall be selected to serve as the Committee’s secretary.
Once the Trial Committee is in place, both the member alleging the misconduct (the Complainant) and the member alleged to have perpetrated the misconduct (the Respondent) shall be provided with 20 working days’ written notice of the commencement of the trial. This written notice will also provide information on how the trial will be conducted.
In conducting the trial, the Trial Committee:
(a) shall decide its procedures and processes to ensure the hearings are conducted efficiently and effectively, including but not limited to determining the length of each hearing day, and the total length of the hearing process;
(b) shall protect personal information received during the hearing process, except as required to reasonably process and conclude the complaint;
(c) shall act in a sensitive, confidential, professional, and timely manner;
(d) may receive any information or evidence it considers appropriate; and
(e) shall not deal with information or evidence that is given anonymously.
F. Trial Hearing Procedures
The trial hearings shall be held in-camera and in accordance with the current version of Robert’s Rules of Order and the principles of natural justice,1 to ensure the Respondent receives a fair and impartial hearing.
The Complainant and Respondent shall have the right to be present at the trial, to call witnesses, and to cross-examine witnesses called by the other side. The Complainant, the Respondent, and all witnesses will be asked to agree to protect the privacy and confidentiality of the trial process, and to not divulge any information or evidence brought forward and discussed during the trial hearings.
All members involved in the trial shall be entitled to AMAPCEO funded leave under the appropriate clause in their Collective Agreement for the time required to participate in the trial hearings.
Both written and oral evidence shall be accepted during the trial hearings.
The Complainant and Respondent shall be permitted to be represented by another AMAPCEO member “in good standing” at the trial, should they choose to do so.
The Complainant and Respondent shall be permitted to obtain outside legal counsel at their own expense.
Once all the testimony and evidence has been heard and reviewed, the Trial Committee shall render a decision on the alleged misconduct complaint; and, if necessary, will also recommend to the Board of Directors what type of disciplinary measures should be imposed on the Respondent.
1 These principles stipulate that whenever a person’s “rights, privileges or interests” are at stake, there is a duty to act in a procedurally fair manner, and are based on the theory that the substance of a decision is more likely to be fair if the procedure through which that decision was made has been just.
G. Rendering a Decision after Trial
Within 30 working days from the final date of trial hearings, the Trial Committee will prepare a written report with their findings and their decision, and send it to the Respondent and the Complainant.
The report shall outline:
(a) the allegations in the misconduct complaint;
(b) a summary of the information and evidence presented during the trial hearings
(c) the Trial Committee’s findings on whether the misconduct complaint is substantiated or unsubstantiated; and
(d) a summary of the reasons for their decision.
In rendering a decision on a misconduct complaint, the Trial Committee shall be empowered to interpret the Constitution and By-laws as necessary to come to a decision.
The Trial Committee may either find that the misconduct complaint has been substantiated or not substantiated. To find that a misconduct complaint has been substantiated shall require majority support of the members of the Trial Committee, otherwise, the complaint shall be dismissed.
Should the Trial Committee find that the complaint is unsubstantiated, the complaint will be dismissed.
Should the Trial Committee find the complaint substantiated, the Trial Committee shall inform the Board of Directors of their decision and make a recommendation on the appropriate disciplinary measures to be imposed on the Respondent. The disciplinary measures available to the Trial Committee are:
(a) Censure;
(b) Suspension of membership for a period that is no less than two (2) years; or
(c) Permanent membership expulsion from AMAPCEO.
When recommending disciplinary measures to the Board of Directors, the Trial Committee must consider the nature of the misconduct, the seriousness of the matter, the impact on the Complainant, or other members, any prior record of misconduct by the Respondent, and any other relevant matters.
H. Board Decision on Disciplinary Measures
After receiving the Trial Committee’s recommendation, the Board of Directors shall deliberate and decide to either accept the Trial Committee’s recommendation or to substitute lesser discipline. The decision on the appropriate discipline to impose shall be made based on a majority vote of the Board of Directors. For clarity, the Executive Committee members who participated on the Trial Committee will not be eligible to vote.
Within five (5) working days of rendering their decision, the Board Secretary will contact the Respondent who has been found guilty of the misconduct and communicate the Board’s discipline decision and the reasons for this decision. The Secretary will also communicate that the Respondent will have the opportunity to address the Board in writing within 20 working days to explain or justify their conduct. Such written submissions shall be limited to no more than five (5) pages double-spaced.
Should the Respondent choose not to address the Board of Directors, the disciplinary measures decision will be imposed.
Should the Respondent decide to address the Board of Directors, the Board shall review the Respondent’s comments and make a final decision within 10 working days. A decision to overturn the Board’s own earlier decision on discipline, and substitute lesser discipline, shall require a twothirds (2/3) vote of the Board of Directors. To clarify, the Executive Committee members who participated on the Trial Committee will not be eligible to vote.
I. Review of Member Expulsion Decisions
Once every two (2) years, an expelled member may seek a review of their expulsion by the Board of Directors. The Board shall have the ability to uphold, commute, or set aside the initial discipline.
J. Bad Faith Complains or Allegations
Complaints filed in bad faith are those motivated by ill will, hostility, malice, or personal animosity, or when the Complainant knows the allegations are not true. Bad faith complaints or allegations are considered serious, and may be dealt with under By-law 9: Activist Code of Conduct or By-law 10: Trial and Discipline.
K. Annual Reporting
The Board shall report the results of all trial outcomes and disciplinary decisions to the next Annual Delegates’ Conference. The Report to the Delegates shall consist of a summary of the misconduct, the trial outcome, the disciplinary decision, and if the decision was appealed.
Appendix A: By-law 10 Process Map
