TIO Annual Report 2004/05

Resolving complaints and deciding what is fair and reasonable

In order to resolve a complaint the TIO relies on members and complainants treating each other with courtesy, acting in good faith, showing a willingness to acknowledge each other’s views and being prepared to compromise. There is generally a poor understanding of the alternative dispute resolution (ADR) process, with staff needing to spend a lot of time explaining it to complainants and members. The TIO is concerned that members are increasingly adopting an adversarial or “push back” approach to complaints in the first instance, without thoroughly investigating them and providing evidence and a proposed resolution. This is disappointing.

Sometimes it is not possible to resolve a complaint through negotiation. Where a level 2 investigation has not managed to resolve a complaint to the complainant’s satisfaction, the TIO may decide whether to dismiss it or escalate it. In making such a decision the TIO has regard to:

• the law
• industry codes and good industry practice
• TIO position statements
• what is fair and reasonable.

The law and industry codes are undoubtedly very useful tools for determining fair and reasonable outcomes, but they do not cover each and every type of complaint.

Increasingly, the TIO’s position statements are becoming important in the investigative and decision-making process. They are not prescriptive about outcomes; rather, they outline the TIO’s general views about particular types of complaints and, most significantly, detail the types of evidence and information that the TIO will have regard to when making a decision.

Determinations and directions

Where a complaint cannot be conciliated so that a fair and reasonable outcome is achieved, the TIO may make a “determination” or give a “direction”. Decisions involving amounts up to $10,000 are legally binding on members. Where the amount involved is greater than $10,000, the TIO can issue a “recommendation” up to a maximum of $50,000.

Recommendations are not legally binding on the provider, but it must consider the recommendation and should provide a response. Where a TIO member does not act on a recommendation, the matter will be reported in the Annual Report. This has not happened in the 12 years in which the Scheme has been operating. A complainant can decide not to accept the TIO’s decision or recommendation. However, once a determination, direction or recommendation has been made the investigation is complete and the complaint closed.

Where the amount involved is less than $400, the TIO can issue a determination at level 3. However, if the amount involved is more than $400 the complaint will be escalated to level 4 before being determined. The TIO can resolve individual complaints that raise systemic issues by determination at level 2.

In the 2004/05, 54 complaints were raised to level 4 and 58 level 4s were completed. Of these, 44 were resolved by conciliation and 14 were determined. Of the 14 determinations, four were made to resolve complaints about credit control, two about contracts, one about a service fault and one an unauthorised transfer. The remaining six related to land access objections.

Determinations are published, in the form of case studies, on the TIO website.

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