Evidence and Decision Making
The purpose of these Procedures is to make sure we make decisions that achieve our aim to handle Complaints in a fair, independent, economical, informal and fast way.
When forming any view, assessing any evidence, or making any decision we consider:
- relevant laws
- good practice, and
- what is fair and reasonable,
and will take into account any vulnerability of the consumer, TIO Position Statements, and actions of the consumer and provider both before and during consideration of the Enquiry or Complaint.
We are not bound by previous decisions, and consider each Enquiry or Complaint on its individual merits.
Under the TIO Terms of Reference we can tell a provider to send us any information or documents it has that are relevant to a Complaint. The provider must give the information and documents to us. We will tell the provider how long it has to give us the information and documents. We will be reasonable in setting this deadline but it will not be more than 28 days.
During investigation we make decisions on what constitutes fair and reasonable outcomes based on the assessment of evidence.
When making an evidence based decision, we will take into account whether a party has neglected to supply relevant evidence that we reasonably believe the party has or ought to have.
When we make a decision that affects the consumer we will always explain the basis for that decision to the consumer.
When we make a decision that affects the provider we will always explain the basis for that decision to the provider.
Our provision of reasons for our decisions does not extend to a duty to engage in a point by point recitation and analysis of each issue that has been raised by the parties.
When considering an Enquiry or Complaint, we examine and weigh up the available information in any given case.
When an Enquiry or Level 1 Complaint is referred to the provider’s resolution department, with the expectation that our involvement in an outcome is not required, we will generally accept that the consumer has made the complaint in good faith and will generally not require the sighting of evidence.
In the course of conciliation or investigation, we will generally accept that the consumer has made the complaint in good faith and will generally not require the sighting of evidence unless the evidence is relevant to deciding disputed facts or issues or to support a specific claim.
When in the course of conciliation or investigation, by notice in writing to the provider, we ask for specific information or documents, the provider must give us this information within the timeframe specified.
When responding to such a notification during an investigation, the provider must also provide all information that is relevant to the Complaint.
When evidence has been provided by a provider or consumer, we will assess its relevance to the Complaint.
We will only consider relevant evidence when making a decision.
When we make a decision, we will explain the reasons for the decision including how the relevant evidence contributed to the decision.
If a provider does not give us all information relevant to the Complaint when we ask for it, and we decide this information is needed to determine if an offer is fair and reasonable, we may escalate the Complaint in accordance with the TIO Complaint Handling Procedures – Classification and Escalation to give the provider another chance to provide that evidence.
When a consumer does not supply all requested information relevant to the Complaint and we decide the information is needed to determine if further investigation is warranted, we may stop handling the Complaint.
When making any decision about escalating an Enquiry or Complaint, we assess all information provided by the consumer and provider up to that point to determine if the criteria for escalation have been met.
We take into account a consumer's particular vulnerability when considering what constitutes reasonable conduct by both the consumer and the provider.
We recognise that in some cases the provider may not be aware of a person's vulnerability, and will consider the reasonableness of the provider's actions once it became aware of the circumstances surrounding the Enquiry or Complaint.
When forming any view, assessing any evidence, or making any decision we have regard to relevant laws including any legislative entitlements or rights the consumer and provider may have.
When there is an omission or uncertainty in a piece of legislation about a matter, for example because that matter did not exist, or was not considered when the legislation was drafted, we will have regard to the broad purpose of the legislation when considering what is fair and reasonable.
When forming any view, assessing any evidence, or making any decision we have regard to good practice.
We generally consider industry codes to be a benchmark of current good practice.
We will compare the actions of the consumer and provider to the benchmark set by an industry code or guideline regardless of whether or not the provider is a signatory or the Code strictly applies to the Complaint.
When forming a view on a matter and then issuing a TIO Position Statement, we will have regard to relevant laws, good practice, and relevant circumstances we consider will contribute to fair and reasonable outcomes in relation to that matter.
When referring to or applying a TIO Position Statement we will take into account the particular circumstances of the Complaint.
We may consider that more than one TIO Position Statement is relevant to a Complaint, and will assess evidence and make decisions accordingly.
When forming any view, assessing any evidence, or making any decision we have regard to what is fair and reasonable.
When we consider what is fair and reasonable, we:
- have regard to the Benchmarks, and
- assess the individual circumstances of the Complaint by asking the following questions:
- What resolution results from the application of any relevant law or applicable industry codes?
- What resolution results from an application of relevant TIO Position Statements?
- Has the provider or consumer contributed to the problem? If so, to what extent?
- Has the provider or consumer acted in a manner that was not reasonable in all the circumstances, for example:
- did the consumer fail to follow reasonable advice from the provider?
- did the provider fail to give clear and reasonable advice to the consumer?
- Have the real and relative costs and benefits – financial or otherwise – to the provider and the consumer been considered?
- Has the provider behaved in a way not reasonably necessary for the protection of its legitimate interests?
- What are the particular perspectives, actions and needs of the provider and the consumer?
- Has all the available evidence been considered?
- Would a typical member of the public in possession of all the relevant facts regard the outcome as fair and reasonable?
When the provider or consumer does not supply all relevant information to a Complaint, we may not be able to determine if an offered outcome to resolve the Complaint is fair and reasonable.
During investigation, if we cannot determine an offered outcome is fair and reasonable, we will:
- convey the current offer to the consumer
- tell the consumer we have not made a decision about whether the offer is fair and reasonable and what additional information would help in making such a decision, and
- outline the possible options left to the consumer including whether the consumer would like us to further pursue the matter and make a decision on a fair and reasonable outcome.
When we can determine a fair and reasonable resolution to the matter, we may:
- advise the parties of our view on this
- outline the options available to the parties and any timeframes involved for the finalisation of the resolution, or
- give the parties our Preliminary View that may result in a decision or recommendation.
8.0 Complaints involving associated third parties
We will only handle a Complaint about an associated third party under clause 2.9 of the TIO Terms of Reference if the matter is within the jurisdiction listed in clauses 2.7 or 2.8 of the TIO Terms of Reference. For example, the matter may be about:
- an associated third party’s actions relating to a telecommunications service supplied or offered by a provider
- a problem with telecommunications equipment supplied by an associated third party that affects the consumer’s access to a telecommunications service supplied or offered by a provider
- an associated third party’s access or use of land, when the access or use is under a statutory or contractual right held by a provider.
We will only hold a provider responsible for a Complaint about an associated third party if we think it is fair and reasonable to do so.
Our decision to hold a provider responsible for a Complaint about an associated third party:
- is based on information available at the time of our decision, and may be revisited if further information is subsequently received, and
- will be made before we form a view about how to handle the Complaint.
Generally, we will consider it fair and reasonable that a provider be held responsible for an associated third party’s actions when:
- the associated third party is collecting a debt the consumer is alleged to owe the provider
- the associated third party is an agent for the provider, or presents itself as an agent for the provider and has dealt with the consumer on the provider’s behalf
- the associated third party has accessed land on behalf of a provider, using the provider’s statutory powers
- the provider bills the consumer on behalf of the associated third party and the charge appears on the consumer’s bill.
In other situations, we will consider the matter on a case by case basis and may consider factors such as:
- the nature of the associated third party’s relationship with the provider
- if the provider was (or ought to have been) aware of what the associated third party was doing (or not doing)
- if the provider has (or ought to have) relevant arrangements in place to control the associated third party’s conduct
- if the service, equipment or business process provided by the associated third party affects the consumer’s access to a telecommunications service supplied or offered by the provider
- if the provider gave us all documents and information we have requested that are relevant to the provider’s relationship with the associated third party, and
- any other circumstances that are relevant to the particular Complaint.
Effective Date: 5 July 2010
Updated on: 30 November 2014