20. INVESTIGATION

20.1 Introduction

If referral back to the Member fails to resolve a Complaint, the TIO will consider whether the matter warrants investigation (and hence escalation to a higher level as outlined in section 18). In some cases, the TIO may consider investigating a complaint without first referring it back to the Member. This might occur where the complainant has already spoken to a senior level or where the complaint is of such a serious and/or urgent nature that it warrants immediate investigation.

Formal investigation involves the collection and consideration of various documentation and the provision of notification to both Member and complainant.

20.2 Definition

Investigation involves any or all of the following:

• collection and analysis of documentation from Member;
• review and analysis of the complainant's case and any supporting documentation;
• collection of additional documentation from the complainant;
• requesting of specific testing by the Member and provision of test results;
• discussion with Member;
• discussion with the complainant;
• consideration of the Law;
• consideration of industry Codes of Practice;
• legal or other specialist advice.

20.3 Notification to Member

Under Clause 5.1(b) of the Constitution, the TIO may investigate a complaint in detail only after it has verified with the complainant that the complainant has given the Member concerned an opportunity consider the complaint, and after the Member has been notified that the TIO intends to investigate the complaint in detail.

In fulfilling its obligations to notify a Member of its intention to investigate, the TIO prepares a letter to the Member outlining:

• the level to which a Complaint has been raised;
• the reasons why the complaint is being formally investigated;
• information to identify the complainant such as name and service number or username;
• the TIO's reference number;
• the name of the Investigation or Enquiry Officer;
• the issue(s) in dispute from the complainant's perspective;
• the information and/or documentation the TIO requires from the Member;
• any interim requirements such as suspension of credit management on the complainant's account; and
• the date by which the TIO requires the Member's response.

At this time, the TIO will also supply the Member with copies of all correspondence and documentation received from the complainant. Correspondence is faxed to the Member wherever possible, with the fax transmission report being kept for file. Unless desktop faxing is used, correspondence is also posted to the Member as confirmation.

20.4 Notification to complainant

At the time of writing to the Member, the TIO writes to the complainant to advise of the action it has taken. The Investigation Officer advises that they will re-contact the complainant within an approximate timeframe and notifies of any interim action the complainant should take, such as paying the undisputed portion of their account.

A copy of the TIO's letter to the Member is sent out to the complainant in most instances. Any personal information about the Member's employees (e.g. name and contact details) are deleted.

20.5 Documentation/evidence

In investigating a complaint, the TIO examines and weighs up the available evidence in any given case, including documentation submitted by both parties, verbal statements to the TIO, and the actions of either party before or after submission of a complaint.

Prior to notifying a Member of an investigation, the TIO endeavours to collect from a complainant all documentation that may be relevant to a complaint and as is necessary to understand and, where possible, to substantiate the complaint. Unless a complainant has reasonable grounds for not supplying all documentation requested, the TIO will not proceed with an investigation unless and until such documentation has been received.

20.5.1 Obligation on Members to supply all relevant documentation

The TIO's Constitution [Clause 5.1(c)] states that a Member is obliged, within 28 days after receiving notification of an investigation by the Ombudsman, to provide to the Ombudsman all documentation relevant to the complaint other than documentation containing confidential information of a third party, who despite the reasonable efforts of the participant, has refused to consent to disclosure of this information to the Ombudsman. In notifying a Member of an investigation, the TIO will usually indicate what particular information and documentation it requires. However, a Member is still obliged to supply all documentation it considers to be relevant to the complaint, regardless of whether or not the TIO specifically requests it.

Relevant documentation may include customer care notes, which the TIO will forward to a complainant if it deems them to be relevant to the investigation. Section 11 of the ACIF Protection of Personal Information of Customers of Telecommunications Providers (CPI) Code requires providers to make personal information relating to a customer, including customer notes, accessible to that customer. Accordingly, the TIO would consider any refusal by a provider to allow the TIO to provide customer notes to a complainant as a potential breach of the CPI code.

20.5.1A Requests from parties that information be treated confidentially

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. This includes being given a reasonable opportunity to review and respond to any evidence or information that may affect the way in which the TIO assesses the complaint. However, the TIO must balance the need to provide transparency in its investigations with the legitimate concerns of parties that certain information be treated as confidential, and therefore not be provided to the other party to the dispute. The TIO will consider any request that information be treated confidentially on a case-by-case basis, having regard to all the circumstances of the case.

On occasion, the TIO receives documentation from members that is marked “commercial in confidence”, or words to that effect. In deciding whether to forward such information to a complainant, the TIO will have regard to any “commercial in confidence” markings, or other requests to keep information confidential. However, the TIO will ultimately decide for itself whether a document ought to be held in confidence.

In general, the TIO will treat as confidential any document marked “commercial in confidence” where that document:

• Discloses personal information about a third party
• Discloses commercially sensitive information about a provider’s relationships with retailers, wholesalers, dealers or another party with which it has a commercial relationship

The TIO will generally not treat documents such as customer care notes, fault or provisioning records or complaint handling records as commercial in confidence regardless of whether they are marked as such, on the basis that a provider would ordinarily be obliged to provide such information to the customer on request. However, where the TIO has been advised of circumstances that suggest that disclosure may not be appropriate in any given case, the TIO will have regard to those circumstances and the National Privacy Principles when deciding whether to disclose the documents in question.

To protect the anonymity of individual representatives of its members, it is the TIO’s standard practice to remove any personal details of member representatives from any document that is forwarded to a complainant.

Where the TIO is provided with documents on a "commercial in confidence" basis by a Member and, after due consideration concludes that they can properly be released to the complainant, the TIO will not do so without first consulting the Member.

20.5.2 Types of documentation

'Documentation' supplied by both Member and complainant can include, but is not limited to, the following:

• test results;
• customer care records;
• Member and/or dealer statements;
• statements by the complainant and/or persons associated with the complainant;
• call data, including phone records ordinarily sent to customers as well as additional network data;
• contracts;
• copies of, or addresses for, web pages;
• correspondence between parties, including emails;
• complainant records;
• financial records such as profit and loss statements;
• documentation to support whereabouts such as school enrolment reports, letters from employers, etc;
• copies of advertisements.

20.5.3 Statutory Declarations

Statements may be sought in the form of statutory declarations. However, the TIO does not create barriers to the access of its service by insisting that statements be provided in this form. Generally, the TIO will draw inference from information provided in statutory declarations and consider it with and against other forms of information relevant to a complaint.

20.6 Correspondence Requirements

Informal communication in handling an Enquiry or Complaint need not be in writing. Formal approvals and advices, however, must be in writing to substantiate the actions taken by the Office of the TIO. Specifically, the following must be in writing:

• notification to the Member that the Ombudsman intends to investigate a complaint (Constitution Clause 5.1(b));
• advice by the TIO of the reasons which give effect to any binding decision or recommendation as described above;
• standard correspondence issued to the complainant in the course of investigating a complaint; and
• in complying with any subpoena, notification to the person who has provided the information which is the subject of the subpoena so that the person concerned is afforded the opportunity to appeal in court to oppose production of the documents or the giving of evidence, as appropriate.

Proforma letters are used in handling Enquiries and Complaints to minimise administrative expense to the Office and to provide minimum correspondence guidelines.

20.7 Suspension of credit management

The TIO expects a Member to suspend credit action on any disputed amount while the TIO is formally investigating a Complaint.

In its letter to Members notifying of a formal investigation, the TIO advises that it expects a Member to suspend credit management of any disputed portion of a complainant's account while the complaint is under consideration. At the same time, where appropriate, the TIO advises complainants to settle any undisputed portions of their accounts.

The TIO expects cessation of debt collection in relation to 'disputed amounts' only. By way of example, 'disputed amounts' may include disputed call charges or service and equipment fees. Genuinely owed (i.e. undisputed) amounts may not be offset against compensation being claimed, although exceptions to this may apply from time to time.

20.8 Suspension of legal action

A TIO Member must not commence proceedings in any court, tribunal or alternative dispute resolution forum in relation to the subject matter of a TIO complaint, from the time a member is notified of a complaint to the TIO to the time that complaint is settled, withdrawn or resolved, or otherwise ceases being handled by the TIO.

For further information, including some exceptions to this rule, see Clause 6.9 of the TIO's Constitution, Restriction on Members commencing proceedings.

Once a Member commences legal proceedings against a complainant, the TIO no longer has jurisdiction to investigate the matter that is the subject of those proceedings.

20.9 Legal Representation

Parties are entitled to, but not required to obtain, legal representation. Where complainants do obtain legal representation, the TIO will deal directly with the legal representative where that is the complainant's preference.

Complainants should not feel disadvantaged because they do not have legal representation. Where necessary, the Ombudsman will call on his or her external legal advisers to provide relevant advice on the issue raised by the complaint.

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