21. DECISION-MAKING

21.1 Introduction

As an ADR body, the TIO is guided by the Benchmarks for Industry-Based Customer Dispute Resolution Schemes. This means that the TIO works towards early resolution of complaints by consensus, helping to reduce costs and build better relationships between consumers and telecommunications companies.

However, speedy resolution by consensus is not always possible. Where a solution that is acceptable to both parties cannot be achieved within a reasonable timeframe, the TIO must decide how a complaint should be resolved. In making such decisions, the TIO has regard to:

1. the law;
2. good industry practice; and
3. what is fair and reasonable in all the circumstances.

21.2 The law

As a body that offers an alternative dispute resolution service, the TIO aims not to take an overly legalistic approach. However, the TIO must have regard to the law when considering complaints, and the law provides a starting point in determining fair and reasonable outcomes.

21.3 Good industry practice

The Australian Communications Industry Forum (ACIF), together with industry participants that include the TIO, regulators, industry members, and consumer groups, have developed codes that cover a number of aspects of telecommunications, including billing, credit control, and customer transfer. ACIF codes aim to protect consumers in a competitive environment.

ACIF codes are voluntary, but once a provider has become a signatory to a code, it is bound by the code rules. Codes which are registered with the Australian Communications & Media Authority are enforceable by the Authority.

When considering complaints, the TIO has regard to ACIF codes as benchmarks of industry practice. Therefore, even if a code is not registered, or a member is not a signatory to the relevant code, the TIO may assess the complaint and the member's actions, using the code as a benchmark, although where a code is unregistered or not signed by a member, use of the code as a benchmark will not necessarily be determinative.

21.4 Fair and reasonable in all the circumstances

The TIO bases its decisions on what it considers is fair and reasonable in all the circumstances. Application of the law and industry codes of practice will in most cases produce fair and reasonable outcomes.

Consumers and telecommunications companies will often vary in their view of what constitutes 'fair and reasonable', particularly where the law provides no clear guidance, and in the absence of a relevant industry code. The TIO acknowledges this point and must make its decisions with the understanding that the complainants and/or members involved in a complaint may disagree with its position on a particular matter, and/or with the reasoning behind it.

In order to minimise any arbitrariness - or perception of any arbitrariness - in its decision-making, the TIO provides guidelines to staff in relation to the concepts of fairness and reasonableness. These guidelines are also intended to assist interested parties to understand the TIO's approach to complaints, and the sorts of criteria upon which it bases its decisions. The guidelines should be considered in conjunction with the TIO's Position Statements, which outline the TIO's approach to particular types of complaints.

21.4.1 Fair Procedures

While the TIO's complaint handling procedures are designed to ensure that consumers and telecommunications companies are able to participate effectively in the complaint resolution process, the TIO must ensure on a case-by-case basis that those involved in a dispute are able to present fully their perspectives, and to challenge each other's viewpoint if they wish to do so.

21.4.1.1 Considerations

• Does the complainant require any special assistance to present their complaint?*
• Does the complainant understand the TIO's processes and the nature of the information that is relevant?
• Does the complainant understand the role of the TIO and the extent of the TIO's powers?
• Has the TIO given notice of its investigation (Level 2,3,4) to the member?
• Have the complainant and member had adequate opportunity to present fully their perspectives, including the presentation of any evidence?
• Have the complainant and member had the opportunity to know, and respond to, each other's case?
• Has the TIO given reasons for its decisions, including why it has given particular weight to evidence, to both member and complainant?
• Has the complainant had adequate opportunity to exercise their right to a review of their complaint by a Manager?
• Has the TIO given fair consideration to any objections by the member?
  
  *Assistance to members is provided via the TIO's Member Communications section, which is available to explain the role and processes of the TIO, and to answer any queries that providers may have.

21.4.2 'Fair and Reasonable' outcomes

The existence of fair procedures is not sufficient to guarantee fair outcomes. To ensure complaint outcomes are fair and reasonable, the TIO must understand the particular perspectives, actions and needs of the complainant and member. The TIO must then assess each complaint on its merits, identifying and weighing up the relevant facts in each case, and considering the reasonableness of the actions by both the complainant and member.

Listed below are the factors which, if relevant, should be considered by the TIO when deciding what is 'fair and reasonable' in all the circumstances. Importantly, this list is non-exhaustive and intended as a guide only. Moreover, no one factor will necessarily be determinative, and each case will ultimately be decided on its own particular facts.

21.4.2.1 Considerations

• What resolution results from an application of the law?
• What resolution results from the application of any applicable industry codes?
• Has either the member or complainant contributed to the problem? If so, to what extent?
• Has either the member or complainant acted in a manner that was not reasonable in all the circumstances? (e.g. Did the customer fail to follow the provider's advice? Did the provider fail to give clear advice to the customer?)
  

• Have the real and relative costs and benefits - financial or otherwise - to the member and the complainant been considered?
• Has the member behaved in a way not reasonably necessary in the protection of its legitimate interests?
• Does the TIO understand fully the particular perspectives, actions and needs of the member and the complainant? Has all the available evidence been considered?
• Would an average person in possession of all the relevant facts regard the outcome as fair and reasonable?

21.5 Previous Decisions

The TIO considers it is useful to Members - and all interested parties - to have as much guidance as possible as to how the TIO approaches certain types of complaints. To this end, the TIO produces Position Statements that outline the TIO's approach to particular types of complaints, including - where possible - its view on what constitutes a fair and reasonable outcome in a given set of circumstances. The TIO also has in place a 'systemic issues' procedure for dealing with complaints that are very similar in nature.

However, unlike a court of law, the TIO is not bound by its previous decisions. As an alternative dispute resolution body, the TIO remains flexible in its approach to complaints, and must consider each case on its own particular merits.

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