Dealers & agents: provider denying liability for dealer's actions

For most complaints that the TIO handles, providers do not deny liability for the actions of their dealers. However, the TIO has in the past dealt with complaints where the provider argues that its agent was acting outside its authority in taking certain action.

As they are not eligible carriage service providers, dealers do not fall within the jurisdiction of the TIO. Moreover, as the Australian Communications & Media Authority has declined to declare dealers a section of the telecommunications industry, they are not directly bound by Telecommunications Industry Codes. In order to investigate a complaint involving a dealer where the principal denies liability for the dealer's actions, the TIO will explore whether or not the dealer may be taken to have acted with the authority of the service provider. Even if a written agreement states that a dealer would not have been authorised to perform a certain act (e.g. to commit a phone company to paying out a new customer's old contract), the TIO will still consider investigating on the grounds that the dealer may have acted with apparent authority.

As a general rule, the TIO considers that a dealer or agent may be taken to have acted with the authority of a service provider where it has performed acts that are:

• necessary in performing its job as an agent for the service provider (e.g. executing a mobile service contract)
• incidental to the type of business in which the service provider is involved (e.g. selling and/or repairing mobile handsets), and/or
• common custom in the type of business in which the service provider is involved (e.g. providing a 'loan' mobile in the event of repair).

The TIO will also examine "indicators" that may imply that a dealer or agent had the authority of a service provider such as:

• verbal statements regarding authority
• signs and the name of the dealer's shop
• letterheads on contracts and bills, and/or
• uniforms of staff.

Where it establishes that the dealer or agent was acting with actual or apparent authority, the TIO will pursue the complaint against the provider. Where it does not establish authority, the TIO will likely refer the complainant to the Office of Fair Trading or advise them to seek legal advice in order to pursue their complaint against the dealer.

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