Complaint about an Adjudicator
From time to time parties may consider an adjudicator has breached our code of ethics and wish to complain. A complaint must be in writing, allege a breach of the code of ethics and not seek to raise issues of law or jurisdiction or to re-agitate issues which were the subject of the adjudication.
Complaints must be in writing and contain full particulars of the allegations together with any supporting documentation. A copy of the complaint will be made available to the other party to the adjudication so their views may be provided. If the complaint is one that Adjudicate Today has power to consider, then it will be referred to the Adjudication Competency Assessment Panel. This panel consists of at least two adjudicators, including a chief adjudicator. Each member of the panel considers the complaint independently and prepares a written report on the papers. These reports are referred to the adjudicator for any submission they choose to make. The reports, the original complaint and any response from the adjudicator are provided to the Managing Director who will respond in writing to the complainant. If appropriate, the government regulator for the applicable State will be informed of the complaint and the outcome.
This process is time intense and exhaustive. It generally completes within six (6) weeks of receipt of the original written complaint.
Sometimes parties seek to use the complaints procedure in the belief that the adjudicator may revise a determination as a consequence. There is no power in the Act for this to occur.
Adjudication is a statutory process under which only a court can review an adjudication determination and decide whether the adjudicator had jurisdiction and fulfilled the requirements of the Act. Like the decision of a judge, magistrate or member of a tribunal, an adjudicator’s decision can only be changed as a result of further proceedings between the parties in the Supreme Court or other applicable court or tribunal. As a consequence, Adjudicate Today has no power to entertain a complaint that:
- the adjudicator did not have jurisdiction;
- the adjudicator made the wrong decision;
- the adjudicator took into account or failed to take into account some matters;
as these are matters for a court to determine.
If a complaint is one that, in law, Adjudicate Today cannot entertain, the complainant can, nevertheless, raise it with the other party. It is possible that the parties can agree between themselves and avoid going to court. Examples include complaints that the payment claim, the payment schedule, the adjudication application or the adjudication response was out of time or otherwise invalid. Before proceeding to adjudicate a payment claim, an adjudicator must satisfy himself or herself that he or she has jurisdiction. But the adjudicator does not have the power to decide jurisdictional issues. These are issues for a court where parties give evidence on oath and can be cross examined on oath. An adjudicator cannot take evidence on oath or cross examine a party.
Whether an adjudicator took into account something that he or she should not have taken into account or failed to take into account something that he or she should have taken into account is a matter to be decided by the Supreme Court on an examination of the adjudicator’s reasons stated in the adjudication. The Court cannot ask the adjudicator what he or she took into account. Nor can Adjudicate Today. An adjudicator cannot review and revise or expand upon his or her determination. While an adjudicator has a limited power to correct a typographical error or the like, they have no power to change a determination or reasons.
Consequently, the scope which Adjudicate Today has for entertaining complaints is limited. Adjudicators perform an independent statutory role; they are not employed by Adjudicate Today.
When, as a matter of law, Adjudicate Today can do nothing in respect of a complaint about a particular adjudication determination, the complainant will be informed in writing. Nevertheless, the Managing Director is constantly monitoring the performance of adjudicators and may form his own view as to the competence of the adjudicator and may require the adjudicator to undergo further training or may remove the adjudicator from Adjudicate Today's panel.
Complaint about Adjudicate Today and/or its employed staff
1.0 Definition of a Complaint
1.1 A complaint is any expression of dissatisfaction or concern made about Adjudicate Today or its staff when the organisation is acting in its role as an Authorised Nominating Authority (‘ANA’).
1.2 Complaints may be made either verbally (and documented by the complaint handler) or in writing.
1.3 Complaints will be accepted only if made within 30 days of completion of the adjudication process where the complaint arose.
2.0 Guiding Principles
2.1 Adjudicate Today recognises that people are free to raise complaints and have them resolved in a manner that is fair, sensitive and prompt.
2.2 Adjudicate Today recognises complaints as a feedback mechanism to improve the organisation's practices, policies and procedures.
2.3 Adjudicate Today will support a cooperative process in managing complaints.
2.4 In particular Adjudicate Today will:
- handle complaints promptly and advise complainants of appropriate timeframe's at all stages of the process;
- treat complaints seriously and sensitively;
- seek to resolve the complaint in the first instance. If the complaint cannot be resolved informally at that stage, it will be progressed through the complaints handling process. Adjudicate Today will ensure that a staff member will not handle a complaint about himself/herself or about any process in which he/she took part;
- ensure that each person has a right to be heard, to be treated without bias, to be informed of complaints being made, to have a right to respond and to have information about the status of the complaint. That is, complaints will be handled with procedural fairness;
- treat all information with due confidentiality;
- use information gained out of the complaint process as feedback to improve the practice of processing adjudication applications, wherever possible.
3.1 Adjudicate Today’s complaints handling policy is published at www.adjudicate.com.au/complaint.php.
4.0 Possible Outcomes
4.1 A range of outcomes may result from the complaints handling process. These may include, but are not limited to, any of the following:
- the matter is resolved;
- the complaint handler determines that the matter is vexatious and cannot proceed further;
- the staff member receives professional development such as coaching, further training, education, mentoring and/or supervision;
- the issue that is the subject of the complaint is referred to Adjudicate Today’s directors to be addressed by way of, for example, policy review and/or development.
4.2 If the complaint is still not resolved, it may be referred to an independent person with experience in the adjudication process for investigation.
5.1 The complaint handler will ensure that information regarding the complaint is handled appropriately. Those who have access to any information regarding the complaint will only have access to the information necessary for them to carry out their role.
5.2 The complaint handler should keep clear and objective records which show how the complaint has been handled. Records of any agreements and outcomes should also be kept. The outcomes and agreements will be provided to the complainant and the staff member.
5.3 Adjudicate Today will ensure that any documents or records kept, arising from a complaint or its investigation, will be held in a safe and secure place. Documents will be kept for a period of twelve months to allow access for analysis and/or research.
6.0 Insight and Development
6.1 Any insights gained during the complaints handling process will be reflected back to Adjudicate Today with a view to improving the adjudication process and organisational systems. For this purpose, Adjudicate Today will maintain statistics showing the number of complaints, the type of complaints, how they were dealt with, the amount of time taken to deal with each matter and the outcome (without identifying characteristics).
6.2 Where appropriate such insight may be shared within the adjudication industry.
7.0 Complaints Handling Procedure
7.1 Step 1 The complaint handler will make initial contact with the complainant within 2 working days.
7.2 Step 2 The complaint handler will conduct an initial assessment which will involve discussing with the complainant the concerns and the desired outcome. The complaint handler will listen to the complainant and, if it is appropriate, resolve the matter at this initial point of contact.
7.3 Step 3 If appropriate, the complaint handler may facilitate the complainant to discuss the issues with the staff member directly if this has not already been tried. This meeting may be facilitated by the complaint handler to ensure both parties communicate openly in a problem solving environment.
If steps 2 and 3 are unsuccessful, the following process will be undertaken.
7.4 Step 4 In the case of a verbal complaint being made, the complainant will be asked to put the complaint in writing.
7.5 Step 5 The complaint handler will conduct an initial assessment which will involve:
a. discussion with the staff member, informing him/her of the complaint and listening to the response;
b. assessment of the willingness of all parties to cooperate with the complaint handling process;
c. assessment of the nature of the complaint; and
d. selection of a dispute resolution process to suit the circumstances.
7.6 Step 6 Following the initial assessment, the complaint handler will provide information to the complainant about the process to be adopted, within seven (7) days after initial contact, if practical. The complaint handler will inform the complainant of the expected timeframe of the complaint handling process and will keep them informed of any changes to the expected timeframe.
7.7 Step 7 A dispute resolution process may include:
a. discussion between the complainant and senior management of Adjudicate Today;
b. negotiation between the parties;
c. if the complaint cannot be resolved through any of the above methods, an investigation of the complaint by an independent industry person may be appropriate. Any investigation will result in a recommendation.
7.8 Step 8 Subsequent to the conclusion of the dispute resolution process feedback will be given to the complainant about the outcome of the process and, if appropriate, the government regulator for the applicable State will be informed of the complaint and the outcome
8.1 The person with overall responsibility for the complaints handling system is Lorraine Djuricin, General Manager, who may be contacted on 1300 760 297