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Complaint and Dispute Resolution Policy

Introduction

A claimant or respondent to an adjudication application, or a person acting on behalf of such claimant or respondent (the complainant), may wish to express dissatisfaction (the complaint) with adjudication by an Adjudicate Today adjudicator or Adjudicate Today’s administration of an adjudication application.

A complaint can be actioned under this policy if it is made in writing and within 20 business days of completion of the adjudication process where the complaint arose. The complaint must include the name and contact details of the complainant and the person to whom the complaint or dispute relates, and details of the complaint or internal dispute.

This policy describes the types of complaints that Adjudicate Today can and cannot address and the procedure for dealing with complaints.

A. Complaint by claimant or respondent in respect of an adjudication determination

A complaint must allege a breach of the code of conduct and include details of the complaint. Provision of supporting documentation of the complaint is encouraged. The code of conduct is available at adjudicator code of conduct.

Adjudicators perform independent statutory functions under respective Security of Payment (SoP) Acts. Adjudicators are not employed by Adjudicate Today and Adjudicate Today has no power to 'reopen' or change an adjudication determination nor to direct or influence an adjudicator in determining an adjudication application.

Sometimes parties seek to use the complaints procedure in the belief that the adjudicator can be convinced to change the adjudication determination. There is no power under any SoP Act for the adjudicator to amend a determination, other than correct minor clerical errors. Therefore, a complaint which reagitates issues of law or jurisdiction, or are issues for a Court to decide, cannot be determined by Adjudicate Today.

Consequently, Adjudicate Today has no power to entertain a contested argument* 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.

*Contested arguments can only be determined by a court where parties give evidence on oath and can be cross examined. An adjudicator cannot take evidence on oath or cross examine a party. An uncontested argument, which may be assessed under this policy, is when either the adjudicator agrees an error has been made or an adjudicator error is overwhelmingly obvious on the most basic legal analysis. Examples include complaints that the payment claim, the payment schedule, the adjudication application, the adjudication response or the adjudication determination was out of time and the parties to adjudication are not disputing the applicable dates.

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 Court on an examination of the adjudicator’s reasons stated in the determination. Neither a Court nor Adjudicate Today can ask the adjudicator what he or she took into account because any analysis of a determination is made solely on the written reasons provided in the determination and the parties’ submissions related to those reasons. Consequently, an adjudicator cannot review, revise or expand upon his or her determination.

Adjudicate Today monitors all complaints against its adjudicators and may form the view that an adjudicator should be required to undergo further training and/or alternatively removed from any Adjudicate Today panel.

The complaint management procedure is as follows:

  1. The complaint is initially assessed by the Owner of Adjudicate Today, or the Owner’s delegate (the Owner), to ensure that the complaint both alleges a breach of the Code of Conduct and contains particulars of the allegations together with any supporting documentation (Initial Assessment). The complainant will be provided written notification of the outcome of the Initial Assessment, including whether the matter is to be referred to the Complaint Assessment Panel (CAP) for further consideration. Time frame: 10 business days from receipt of the complaint.
  2. Adjudicate Today will advise the nominee of Government of the complaint and the outcome of the Initial Assessment. Time frame: 10 business days from Adjudicate Today's receipt of the complaint.
  3. Where the matter is referred to the CAP in the initial assessment the complaint will immediately be referred to the adjudicator for any response. Adjudicator’s time frame to respond: five business days from the adjudicator's receipt of the complaint.
  4. Where there is capacity to consider a complaint, and where the matter is referred to the CAP in the initial assessment, Adjudicate Today will appoint two senior adjudicators to the CAP to review the complaint and the adjudicator’s submission (if any). The Managing Director, or the Managing Director’s delegate, will provide administrative support to the CAP and report on the management of the adjudication application. Time frame: three business days.
  5. Each member of the CAP will consider the complaint independently and prepare a written report on the papers. Time frame for each member: 10 business days from receipt of the papers.
  6. All reports, the original complaint and the adjudicator’s submission (if any) will be provided to the Owner who will respond in writing to the complainant, the adjudicator and the other party to the adjudication application. The response will be by way of a Finding and will include the reasons for any actions taken or decisions made. Owner’s time frame: seven business days.
  7. The nominee of Government will be provided a copy of the Finding. Time frame: two business days from date of Owner’s Finding.

This process is time intense and exhaustive. It generally completes about eight weeks from receipt of the original written complaint.

B. Resolution of a dispute between an adjudicator and Adjudicate Today

A complaint made under Section A of this policy cannot be reagitated under this Section or a complaint made under this Section cannot be reagitated under Section A.

  1. A dispute may arise between an adjudicator and Adjudicate Today (the parties). In the event the dispute is not resolved by discussion, the following procedure will apply.
  2. Any complaint must be made within 20 business days of the event the subject of the complaint and must be made expressly pursuant to this policy.
  3. The parties should each prepare a written submission. The written submission(s) will define the range of the dispute (the dispute).
  4. Adjudicate Today has established a Peer Review Committee (PRC) of senior adjudicators, including the two chief adjudicators. The PRC will determine the dispute. A quorum of the PRC is two members, including one chief adjudicator.
  5. In determining a dispute, the PRC will consider the written submissions and provide written constructive commentary to the adjudicator and/or Adjudicate Today, as applicable. Time frame: 15 business days from receipt of the notification of the dispute.
  6. The PRC in determining a dispute must not compromise either the statutory responsibilities of the adjudicator or Adjudicate Today.
  7. Determinations by the PRC will be confidential to the adjudicator and Adjudicate Today.
  8. At the request of the nominee of Government, Adjudicate Today will provide a copy of the PRC determination. Time frame: five business days from conclusion of the dispute resolution process.

C. Complaint about Adjudicate Today and/or its employed staff

A complaint made under Section A of this policy cannot be reagitated under this Section or a complaint made under this Section cannot be reagitated under Section A.

A complaint may be made by any party to an adjudication, or their representative, about the conduct of Adjudicate Today and/or its employed staff. In the event the complaint is not resolved by discussion, the following procedure will apply.

  1. Adjudicate Today management will appoint a complaint handler who was not involved with any of the issues raised by the complaint.
  2. The complaint handler will conduct an initial assessment which will include:
    1. discussion with the staff member, informing him/her of the complaint and listening to the response; and
    2. selection of a dispute resolution process to best suit the circumstances.
  3. Following the initial assessment, the complaint handler will provide information to the complainant about the process to be adopted. Time frame: five business days from receipt of the complaint.
  4. The complaint handler will inform the complainant of the expected time frame of the complaint handling process and keep the complainant informed of any changes to the expected time frame.
  5. A dispute resolution process may include:
    1. discussion between the complainant and senior management of Adjudicate Today;
    2. mediation between the parties;
    3. investigation of the complaint by an independent industry person. Any investigation should result in a Finding.

Possible Outcomes

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 Finding is referred to Adjudicate Today’s directors to be addressed by way of, for example, policy review and/or development.

Confidentiality

The complaint handler will ensure that information regarding the complaint is handled appropriately. Those requiring information regarding the complaint will only have access to the information necessary for them to carry out their role.

The complaint handler should keep clear and objective records which show how the complaint has been handled. Records of any agreements and outcomes will also be kept. The outcomes and agreements will be provided to the complainant, Adjudicate Today and, if appropriate, the staff member.

The record of a complaint or internal dispute will be kept for the period of five years from the date of receipt of the complaint or internal dispute.