Making a complaint about a tradesperson

If a consumer has an issue with the workmanship or any other issue regarding a plumber, gasfitter or drainlayer then the parties should initially try to resolve this by communicating with each other, as soon as possible. Good communication about a problem, whether perceived or not, may avoid a formal complaint to the Registrar of the Board.

In the Board's experience, many issues could have been resolved easily before they escalated to a formal complaint. Many formal complaints take time and mean that invoices remain unpaid or disputed till the matter is resolved. These complaints also often end up with the parties having a protracted dispute or grievance.

The most common complaints are as follows:

• late gas certificates;
• failure to have gas work certified;
• leak relating to sanitary plumbing/gasfitting work;
• difficulties with Code of Compliance and producer statements;
• no building consent;
• no supervision;
• non-registered persons running their own businesses;
• failure to follow manufacturer's instructions; and
• over-charging of work.

Not all of the above matters are issues that the Board has jurisdiction over or is able to inquire into. For example, the requirement to provide a producer statement is a requirement under the Building Act 2004 and is, therefore, under the jurisdiction of the territorial authority.

Likewise, billing/invoicing disputes are primarily contractual in nature and may be best dealt with through civil avenues, such as the Disputes Tribunal of the District Court.

Please note that the Board has no powers to order that the tradesman ("respondent") undertake any remedial work, nor can it order compensation to the consumer in the event the respondent is found guilty by the Board. The Board's only powers are disciplinary ones.

Please note that both disciplinary offences (under section 89 of the Act) and disciplinary proceedings only relate to registered persons. If the complaint relates to a non-registered person(s) or a licensed person/ trainee without a current licence, the Registrar will determine if the conduct is an offence under sections 122-125 of the Act. The Board may then proceed with a prosecution in the District Court.

If the matter cannot be resolved between the parties, a complaint can be made in writing to the Registrar. It can be helpful and can expedite the process considerably if the complainant provides supporting documentation when making a complaint. Examples include, copies of invoices, gas certificates and council documentation etc. Thereafter, the Registrar, as soon as possible after having received the complaint and any supporting documentation, must inform the Board of the general nature of the complaint. The Registrar may also forward a copy of the letter of complaint and any supporting documentation to the respondent, the subject of the complaint, inviting them to provide a written explanation in response to the complaint within two weeks of receipt of the letter. This allows the respondent or the respondent's representative a reasonable opportunity to respond to the matter and give their version of events. All complaints are treated seriously.

Having informed the Board and the respondent(s), the Registrar must determine whether or not to appoint an Investigator to investigate the complaint.

Please note that if the Registrar is satisfied that the complaint is 'frivolous' or 'vexatious', on the information before him, the Registrar will, as soon as possible, inform the complainant that the complaint will not be investigated or proceeded with.

All the Board's investigators are independent of the Board. Once appointed, the Investigator will determine whether, in their opinion the complaint should be considered by the Board and report their findings to the Board. The Board may also order interim suspension or disqualification of the respondent(s) pending disciplinary proceedings against that person if it is satisfied that it is necessary to do so to protect the safety of members of the public. Once the Investigator has completed his/her investigation, the Registrar will send a copy of the investigator's report to the respondent(s) and also to the complainant. In the event where the investigator finds the complaint should not be considered by the Board, the Registrar will inform the complainant and the respondent(s) of that determination and the file will be closed.

What are the investigator's powers?

When appointed, the Investigator will interview those persons believed to have information which can assist in deciding whether or not the complaint should be considered by the Board. The investigator can, at any reasonable time, enter onto any premises or land to inspect and test the sanitary plumbing, gasfitting or drainlaying. The investigator may make any inquiries or do any other things that may be necessary, to determine whether or not the alleged conduct was carried out in a competent and safe manner and in accordance with enactments relating to sanitary plumbing, gasfitting or drainlaying in force at the time the work was done. The investigator may also, by written notice served on any person, require a person to produce any document or information or class of document or information in the possession or under control of that person, within a reasonable time period and/or take copies of or extracts of those documents. An investigator who wishes to enter any land or premises must obtain written consent of the occupier of the dwellinghouse or give ten days written notice of his intention to apply for a warrant of authority (supplied by the Registrar) which is to be carried by the investigator when entering any premises or land.

At any time during the complaint process, the respondent(s) can seek assistance from a representative person when providing an explanation in response to the complaint to the Registrar or before being interviewed by the investigator. However, in all instances the determination(s) will be made on the information held.

In some cases, if there is more that one respondent involved and/or the issues are complex, the process may become lengthy. As a general guide, however, it will take three weeks from receipt of a complaint to the appointment of an investigator, another month for the investigator to conduct his investigation and if the complaint proceeds to a disciplinary hearing, this will be held within 12 months after receipt of complaint by the Board. In some cases, more complex complaints may take longer than this to be processed.

At least one (1) month before the Board hearing, the respondent will be “served” by the Chairperson with a Notice of the disciplinary proceedings (“the Notice”). That Notice will set out a statement that the investigator has reason to believe that a ground exists entitling the Board to exercise its disciplinary powers, the particulars of the alleged conduct by the respondent(s) and specify the venue, commencement time and confirmed date(s) of the disciplinary proceedings (not being less than 20 working days after the date of service of the Notice, or earlier than 20 working days with the respondent’s agreement).

The Notice will also specify a date for a pre-hearing teleconference, the purpose of which is to allow the respondent to discuss the following matters:

• whether or not they intend to appear before the Board at the hearing;
• whether or not they are are to be represented;
• whether they intend to defend the matter (in which case the respondent estimates the number of witnesses intending to be called in support of the case);
• the venue;
• whether or not the hearing will be held in public; and
• whether or not any “special assistance” is required.

This pre-hearing teleconference is arranged approximately two weeks after the Notice has been served on the respondent to allow the respondent time to seek preliminary advice and/or representation if appropriate. Those present at the teleconference will include:

• the Presiding Board member;
• the Registrar;
• the prosecuting lawyer (acting on behalf of the Investigator);
• the Board’s legal assessor; and
• the respondent and/or his representative.

It is likely that orders will be made by the Presiding Board member at the conclusion of the teleconference. A written copy of the minute of the Chairperson’s orders will be forwarded to all those present at the pre-hearing teleconference.

If the respondent decides to plead not guilty to the charge, they will then be required to defend the case and attend the Board’s hearing. The hearing itself is conducted in public and in a formal manner similar to that of a court case. The Board must observe the rules of natural justice. All parties are required to stand and address the Board Members hearing the case. The process is an inquisitorial one. Both parties will make opening submissions, give their evidence and finish with closing submissions. The prosecutor (on behalf of the Investigator) is the first to give evidence after which the respondent and/or representative have the opportunity for cross-examination. The respondent or representative will then present their case in defence and, thereafter, the prosecutor may cross-examine the defence witnesses. Board members may also ask questions of the parties and/or the witnesses. At the completion of the hearing the Board adjourns to deliberate and make its decision.

It may not be necessary for the respondent to defend the case, at a hearing of the Board, if they admit what is alleged to have happened, occurred.

If the respondent admits the conduct as alleged, it is possible to respond to the Notice by way of an agreed Summary of Facts. This is a statement of agreement made by the respondent and the prosecutor as to the relevant facts as to what happened. If there is an agreed Summary of Facts, the Prosecutor does not usually have to call any witnesses to give evidence to prove the charges. Nor will the respondent or representative, have to give evidence and/or call witnesses. As a consequence, the costs and expenses of and incidental to the hearing by the Board are usually significantly less and the hearing itself much shorter.

If this option is followed, namely, the case is to proceed by way of an agreed Summary of Facts, the respondent may either:

1. plead guilty only to the facts as alleged in the Notice; or
2. admit the charges which means admitting both the facts as alleged and that those facts amount to a disciplinary offence under section 89 of the Act. This must be acknowledged in writing as part of the agreed Summary of Facts.

If, however, the respondent simply admits the facts in an agreed Summary of Facts (refer(a)) it is necessary for the Board to then determine whether or not it considers the conduct admitted and detailed in the Notice amounts to a disciplinary offence under section 89 of the Act:

1. to have carried out or caused to be carried out sanitary plumbing, gasfitting, or drainlaying work
   1. in a negligent or incompetent manner; or
   2. in a manner contrary to any enactment relating to sanitary plumbing, gasfitting, or drainlaying that was in force at the time the work was done; or
2. to have intentionally or negligently created a risk of serious harm to any person, or significant property damage, through
   
   1. having used or caused to be used faulty or improper appliances, pipes, drains, sanitary fixtures, or fittings; or
   2. having carried out or caused to be carried out any sanitary plumbing, gasfitting, or drainlaying work; or
3. to have failed to have complied with a term or condition of the person’s registration or licence; or
4. to have done sanitary plumbing, gasfitting, or drainlaying work that, under the terms of any restriction or limitation that applies to the work that the person may do, the person is not authorised to do; or
5. to have intentionally deceived or attempted to deceive any registered person who is authorised to test and certify sanitary plumbing, gasfitting, or drainlaying work by
   
   1. purposely concealing inferior work or inferior appliances, pipes, drains, sanitary fixtures, or fittings used; or
   2. making any false or misleading statement (whether in writing or not) to that person; or
6. to have failed to provide any return required under any enactment relating to sanitary plumbing, gasfitting, or drainlaying work or to have provided a false or misleading return; or
7. to have employed, directed, or permitted any unauthorised person to do any sanitary plumbing, gasfitting, or drainlaying work; or
8. to have been convicted of an offence relating to sanitary plumbing, gasfitting, or drainlaying against this Act or the former Act or the Health Act 1956, or against any regulations made under this Act or either of those Acts or under the Gas Act 1992; or
   
   1. to be guilty of improper or incompetent conduct in performing that person’s work, or in charging for it, that renders that person unfit to be registered or licensed under Part 2.

It is the respondent’s decision, having agreed to a summary of facts, whether or not they wish to plead guilty to the charge(s) set out in the Notice. In all cases, the Board ultimately must determine the level of the conduct proven.

In all disciplinary proceedings, the Board may receive as evidence any statement, document, information, or matter, that may in its opinion, assist it to deal effectively with the matter being heard, regardless of whether or not it would be admissible as evidence in a court of law. In addition, the Board has the same powers as are conferred on Commissions of Inquiry under sections 4 and 4B to 9 of the Commissions of Inquiry Act 1908.

If the respondent chooses to defend the charges the Board must first determine whether or not the respondent is guilty after hearing all the evidence. If the Board finds the respondent guilty of the charge(s) a decision will be issued to the respondent in writing. At that time the respondent will be invited to make submissions on penalty, if any, with a date on which any submissions must be filed by both the prosecutor and the respondent.

Subsequently, a further date will be set for the Board to reconvene the hearing to consider the submissions and determine what penalty, if any, is appropriate. The respondent may appear and be heard at this time or may agree that the Board can deliberate on the papers. The choice is theirs. If the Board is satisfied that the respondent is guilty of a disciplinary offence, the Board can impose any one or more of the following penalties under section 106 of the Act:

• order that the person’s registration or practising licence (or both) be cancelled, or that the person’s provisional licence be cancelled, and/or that the person may not apply to be re-registered or re-licensed before the expiry of a specified period;
• order that the person’s registration or practising licence (or both), or the person’s provisional licence, be suspended for any period that the Board thinks fit, or until that person does 1 or more of the things specified by the Board (pass a specified examination, complete any competence programme or specified period of training, or attend any specified course of instruction);
• order that the person’s registration or practising licence (or both), or the person’s provisional licence, be restricted for any period that the Board thinks fit;
• Order that the person be disqualified from doing or assisting in doing sanitary plumbing, gasfitting or drainlaying work that the person would otherwise be authorised to do, or until that person does 1 or more of the things specified by the Board (pass a specified examination, complete any competence programme or specified period of training, or attend any specified course of instruction);
• order a fine up to $10,000;
• order that the person be censured; or
• make no order.

Every order of the Board will be in writing, explaining the reasons on which it is based and will be signed by the Chairperson. The order will also contain a clear statement of the right of the person in respect of whom it is made, to appeal against the order to the District Court, and the time within which any notice of appeal must be given.

A copy of every order of the Board will be served by the Registrar on the respondent and a copy given, as soon as possible, to the Investigator, complainant (if any) and where ordered by the Board, to the owner and occupier of the premises subject to the complaint.

In addition the Board can, if the respondent is found guilty, make an order for costs. The Board may order the respondent to pay any sum that it considers just and reasonable towards the costs and expenses of, and incidental to:

• the Investigator’s investigation of the complaint;
• the prosecution of the complaint by the Investigator; and
• the hearing by the Board.

In past cases, orders for costs have ranged from 35-50% of the total costs of the hearing and investigation process. These costs can be significant in amount i.e. $10,000 - $25,000 in defended cases.

Please note that all disciplinary proceedings will be held in public. However, the Board on its own motion, or on the application of any party to the proceedings, may order that the hearing be held in private or that the publication of any report, document or name be prohibited having regard to the interests of any person and to the public interest.

In particular, prior to any disciplinary proceeding the respondent may, seek “interim” name suppression. In the event the Board finds the respondent guilty, the respondent may make submissions as to why they believe their name should not be published and why any “interim” suppression order be made a final order. This decision is one for the respondent and a matter which may be discussed with their representative.

In the event, there is no appeal against any decision or order of the Board, the Registrar must, if the Board so directs, publish a Notice in the New Zealand Gazette and any other publication directed by the Board, stating the effect of its decision, give its reasons and name the person the subject of the order or decision.

Any person found guilty by the Board has the right to appeal the Board’s decision and/or any penalties that it might impose. Any appeal must be lodged with the District Court within 20 working days of receipt of service of the Board’s decision.

The Board convenes most of its disciplinary hearings in Wellington (unless there is a specific request that it be heard elsewhere at the time of the pre-hearing teleconference). The reason for this is that the costs are able to be more easily contained. As a result, the administration costs are significantly less in that the Board does not have to arrange for support staff to travel to another centre.

The Board may also order interim suspension or disqualification before or after a Notice has been served on a respondent. This will apply if the Board is satisfied that it is necessary to do so, having regard to the need to protect the safety of members of the public. Under section 102 of the Act the Board may make an order:

• suspending the person’s practising licence or provisional licence; or
• disqualify a person from doing, or assisting in doing, sanitary plumbing, gasfitting or drainlaying work that the person would otherwise be authorised to do or assist in doing.

An order made under section 102 of the Act will continue in force until the investigator determines that the complaint should not be considered by the Board, or until the Board has exercised its disciplinary powers under section section 106.

Any order that the Board makes, must be in writing to the person, stating the reasons on which it is based and the right of the person to apply for revocation of the order, in which case this must be heard within five working days after it has been received by the Board (the Board may grant or refuse the application as it thinks fit). The order will be signed by the Chairperson and served by the Registrar.

Please note, that where an interim suspension or disqualification order has been made, the Board will take reasonable steps to hold the hearing as soon as practicable.