17. DISCRETION NOT TO INVESTIGATE

17.1 Overview

As outlined in Clause 6.7 of the Constitution, the Ombudsman has the discretionary power to decline to investigate a complaint, or to decline to investigate a complaint further, if in the opinion of the TIO:

a) the complaint is frivolous or vexatious or was not made in good faith;
b) the complainant does not have a sufficient interest in the subject matter of the complaint; or
c) an investigation, or further investigation, is not warranted.

The TIO may also decline to investigate a complaint, or decline to investigate a complaint further, where, under Clause 6.8(b) for example, the complaint is more conveniently or effectively dealt with by the Australian Communications & Media Authority, the Australian Competition and Consumer Commission, the courts or any other body.

The Ombudsman delegates his powers to exercise discretion not to investigate to both Enquiry and Investigation Officers

17.2 Frivolous and vexatious complaints

When considering whether or not a complaint should by nature be classified as frivolous or vexatious, the TIO has regard to the reasonableness of the complaint in all the circumstances while considering the intention of the complainant. In practice, the TIO rarely classifies complaints as frivolous or vexatious. However, the TIO might exercise its discretion to classify a complaint in this way where:

• it is clear that the complainant's intention in raising the matter is to be of annoyance to the Member and/or the TIO; or
• the complaint is so obviously untenable or manifestly groundless as to be hopeless.

Complaints classified as frivolous or vexatious are not charged to the TIO Member concerned directly but are recorded as Enquiries.

17.3 Complaints without identifying information

As a general rule, in order to register a complaint the TIO requires a complainant to supply both their name and a service identifier, i.e. a telephone number, internet username, or order/account/reference number.

Where a complainant does not supply their name, the TIO registers an Enquiry. The TIO will refer the complainant to the relevant Member but will advise that the Member may require a name and other identifying details in order to address their complaint (as will the TIO, should the complainant call back to request further assistance). In line with standard practice, the Member would not be charged directly for the Enquiry.

Where a complainant supplies their name but not their service identifier, the TIO will establish why the complainant is not able to supply a service identifier. Sometimes, a complainant can have a valid reason for not supplying a service identifier, e.g. their complaint relates to an old debt or to a new connection for which the Member has not supplied an order or telephone number. In other cases, complainants may have forwarded their complaint by fax or letter, without being aware of the requirement to provide a service identifier.

In such instances, provided the complainant supplies their name and other contact details (and where the matter is in jurisdiction and is not a first resort complaint), the TIO will log a Level 1 complaint and will refer the complainant to the Member's senior level of complaint. The TIO will also record its decision to register the complaint as a Level 1 complaint despite the absence of a service identifier, in its complaint management system.

Where a complainant is not able to offer a plausible reason for not supplying service identifier information, the TIO will register an Enquiry only (but may still refer the matter to the Member's senior level of complaint as it does anonymous complaints).

17.4 Insufficient interest in subject matter

The primary focus of the TIO is to resolve individual complaints by customers of providers. For this reason, the TIO may exercise its discretion not to investigate complaints where a complainant cannot demonstrate that they have sufficient interest in a matter. Such complaints include:

• A protest about a provider’s actions or policies, which cannot be demonstrated to be a grievance or dissatisfaction that those actions or policies have affected the complainant as an individual customer of that provider.

  Example: a customer objects to a decision by its provider to direct debit all its customers, even though the customer has already agreed to and intends continuing a direct debit arrangement.

• Complaints from individuals who are not customers of the provider in question, or who have not been granted permission by a provider’s customer to register and pursue a complaint on their behalf. Another name for an individual with this type of complaint is an ‘officious bystander’.

  Example: an individual objects to a provider stringing a cable at knee height across their neighbour’s property. Only the neighbour would be entitled to pursue this matter, because they are the party directly affected by the height of the cable (and they are the owner/occupier of the property).

Exceptions

The following are two exceptions to the above. Other exceptions may arise from time to time.

• Where a caller claims that there may be fault on the service of a party they are trying to call, and they know the called party’s service provider, the TIO will refer them to the service provider. Section 14.3 of Part 2 of the Customer Service Guarantee Standard states, ‘if a person other than the customer reports on behalf of the customer a fault or service difficulty to the carriage service provider, the guaranteed maximum rectification period begins when the fault or service difficulty is reported.’ This indicates that service providers should act on fault reports from parties other than the customer or their authorised representative.
  
  
• The TIO would investigate a complaint about liability for damage to a buried cable, where the property’s owner/occupier claims to have checked cable placement or depth before digging, e.g. by calling ‘Dial-before-you-dig’. In this instance, the cable may be providing service to adjacent properties so the complainant is not directly affected by the provision or supply of services, and the complainant may or may not be a customer of the carrier presenting the charge.

17.5 Investigation not warranted

TIO Officers may exercise discretion not to investigate, or not to investigate further, at any stage during the consideration of a Complaint if they decide that the complaint does not have sufficient merit or importance to warrant investigation.

The reasons why the TIO would consider that a matter does not warrant further investigation include, but are not limited to, the following:

• there is insufficient evidence available for the TIO to make a judgment about the merits of either party's case;
• based on the balance of probability, the Member's version of events is considered to be more likely;
• evidence presented by the Member clearly supports a view that the complaint has no merit;
• the TIO considers that a resolution proposed by a Member is reasonable in all the circumstances.

In making decisions not to investigate, or not to investigate further, the TIO has regard to its criteria for decision making, which are outlined in section 21.

17.6 Complaints better handled by other bodies

As an alternative dispute resolution body investigating individual complaints, the TIO's approach may not suit all complainants or the nature of the complaints they raise. The TIO may therefore exercise its discretion not to investigate, or decline to investigate a Complaint further, where a complaint would be more conveniently or effectively dealt with by another body. For example, where a complainant seeks the sort of remedies that are more appropriately pursued by a court, the TIO may suggest that the complainant consider seeking legal advice. Where a complainant has what appears to be a legitimate complaint but primarily wants to see a Member's business practice investigated as a potential breach of the Trade Practices Act, the TIO may refer the complainant to the Australian Competition and Consumer Commission (ACCC).

17.6(a) Referral of non-compliant members to the Australian Communications & Media Authority

Introduction

The TIO is provided for under Part 6 of the Telecommunications (Consumer Protection & Service Standards) Act 1999 (the Act).

S.132 of the Act requires members of the TIO Scheme to comply with the Scheme. The TIO does not itself enforce this provision. That job is the role of the Australian Communications & Media Authority.

However, the ACMA cannot exercise its enforcement power without information or evidence provided in the first instance by the TIO. Therefore, where a member appears to be non-compliant with the TIO Scheme, the TIO takes the following steps:

Note: each step pre-supposes that the previous measure has been unsuccessful. The Member Communications Manager is responsible for each step unless otherwise specified.

1. The TIO identifies instances of alleged non-compliance with the TIO Scheme by a member. Behaviours that might constitute non-compliance are set out in the following guidelines/criteria:
   
   • Guidelines for identifying member behaviours constituting a case for referral to ACMA under s132
     
   • Additional criteria (Ombudsman's use) possibly warranting ACMA action under s132
     
     
2. The TIO approaches the member informally, for example by telephone, to discuss the situation and seek an undertaking that it will comply with the TIO Scheme. Where the member gives such an undertaking, the TIO will write to the member to confirm having received such advice.
   
   
3. The TIO considers implementing steps to mitigate the effects of non-compliant behaviours. For detail, see Step 8 below.

   Explanatory note: in the TIO's experience, member behaviour that is consistent with non-compliance generally results in a relative increase in complaint numbers and complaint escalations, because members do not respond at all or do not respond adequately to TIO referrals and formal notifications of complaint (Level 1, 2 & 3 letters). Effects of non-compliance include uncertainty for complainants, longer complaint closure timeframes, and increased costs to the TIO scheme.

4. The TIO sends a letter to the member which:
   • details the alleged non-compliant behaviour
   • warns of the consequences of non-compliance, and
   • specifically requests corrective action within a certain timeframe (7-14 days)
     Note: the TIO has discretion to extend the deadline for an additional period, if it would be reasonable to do so in the circumstances.

5. If the member does not respond, or does not take adequate corrective action, the TIO notifies the member in writing that the TIO intends to refer the member to the ACMA for non-compliance (under s132 of the Act). This letter also:
   • gives the member a final opportunity to cooperate
   • warns of the consequences of non-compliance
   • specifically requests corrective action within a certain timeframe (7-14 days)
   • includes a schedule of complaints currently on hold within the office (see Step 8).
     
     
6. If the Member does not respond, or does not take adequate corrective action, the Ombudsman will send a letter of notification to the ACMA. This letter specifies the evidence on which the TIO has based its decision to refer the member to the ACMA (see Guidelines & Criteria). The TIO also sends a copy of the Ombudsman's letter to the member.

   It is then a matter for the ACMA to exercise its powers to enforce s132 of the Act.
   

7. The TIO may include information about any Members that have been referred to ACMA in its Annual Report.
   
   
8. After a member is referred to the ACMA, the TIO handles new and existing complaints about the non-compliant member as follows. (The TIO may also take these steps before referral to the ACMA.)

   New complaints against non-compliant members

The TIO handle new complaints against members in one of two ways:

The TIO registers a Level 1 complaint

1. The Level 1 complaint is referred to the Member
2. If the complainant advises the TIO after referral that the member has not resolved the complaint (and the Level 1 time frame for resolution has expired), the TIO will NOT escalate the complaint to Level 2
3. The TIO may seek permission to forward the complainant's contact and complaint details to the ACMA
4. The TIO informs complainants why it cannot handle their complaint and what measures have been taken to address the situation
5. If/when compliance is instated/restored and where practicable, the TIO would resume investigating the complaint in line with the TIO's Complaint Classification & Escalation Guidelines.

The TIO registers an Enquiry

1. The TIO may exercise its discretion not to refer and/or investigate at any level
2. The TIO may seek permission to forward the complainant's contact and complaint details to the ACMA
3. The TIO informs complainants why it cannot handle their complaint and what measures have been taken to address the situation
4. If/when compliance is instated/restored and where practicable, the TIO would handle the complaint in line with the TIO's Complaint Classification & Escalation Guidelines.

Open complaints against non-compliant members

1. The TIO handles open complaints against non-compliant members by either closing them or putting them on hold
2. On a case-by-case basis, the TIO may write to the complainant to explain why the TIO has taken this action
3. The TIO may seek permission from the complainant to forward personal details to the ACMA
4. If/when compliance is instated/restored and where practicable, the TIO would reopen and resume handling complaints in line with the TIO's Complaint Classification & Escalation Guidelines.

Exceptions

From time to time, there may be exceptions where the TIO chooses to either investigate a new complaint, or continue to investigate an open complaint. Where investigation proceeds, the Ombudsman may determine the complaint.

Example: a new or current complaint might proceed where the TIO holds evidence that a Member seeks to apply a termination fee or contract cancellation fee that may not be fair and reasonable in the circumstances. In such instances, the Ombudsman may exercise their discretion to investigate. Failure to respond or cooperate may result in escalation of the complaint with a view to determining the complaint.

17.7 Policy to deal with High Volumes of Complaints

To protect the Scheme's ability to deliver quality dispute resolution services, and to avoid the abuse of the TIO Scheme particularly for commercial gain, the TIO may at its own discretion impose conditions on the lodging and handling of complaints, or exercise its discretion not to investigate complaints. Where the TIO exercises this discretion, it must advise Council of the number and circumstances of such complaints at the next Council meeting.

17.8 Advice to complainants

As a matter of procedural fairness, all TIO staff must give clear and understandable reasons for their decisions when exercising discretion not to investigate a complaint, or not to investigate a complaint further.

Page updated: 22 January 2009

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