122: Complaints not upheld

If sufficient evidence is not obtained the complaint may be ‘not upheld’ by the Board,

Recent ‘not upheld’ decisions show that professionalism, good record keeping, and open communication with the client are not simply good business sense, they can also provide evidence in response to potential complaints.

In one of those ‘not upheld’ decisions, the respondent was contracted to build an extension on a 1950s holiday home. The build was delayed at the framing stage by weather events and insurance claims related to cyclone Gabrielle.

The Board decided to investigate whether the respondent had, contrary to section 317 of the Act:

1. carried out or supervised building work in a negligent or incompetent manner
2. carried out or supervised work that does not comply with a building consent
3. failed to provide a record of work (RoW)
4. breached the Code of Ethics, and
5. conducted himself in a manner that brings, or is likely to bring, the regime into disrepute.

Regarding the Code of Ethics allegations, the specific points were:

10. You must comply with the law

21. You must price work fairly and reasonably and

25. You must conduct your business in a methodical and responsible manner

The specific Code of Ethics matters under investigation related to the absence of a building contract (Provision 10) and his contract administration processes (Provisions 21 and 25)

The Board’s findings:

Negligence or Incompetence

The complainant commissioned a report from a building consultant after a commercial dispute following the weather event. The report was to work out what stage the job was at.

The consultant’s report raised compliance issues, including, among others, that there had been no inspection of the piles and foundations, and that the flooring was installed without following the manufacturer’s instructions. The respondent provided evidence that the building consent authority had issued a waiver for that inspection because there was engineer oversight. The respondent explained that the flooring was installed in that way so the machinery could get to the retaining wall that was being built. This would also allow the framing work to continue.

The Board noted that, while not everything was up to acceptable standards, the respondent did not act in a negligent or incompetent manner.

Contrary to a Building Consent

Building consents provide detailed plans and specifications for building work and are issued on the understanding that the building work will meet the provisions of the Building Code.

The early designs submitted for a building consent included the engineering design of the retaining wall, however, during the RFI process, the designer omitted the retaining wall design in favour of battering the slope. A subsequent change to on-site conditions meant that battering would not be sufficient, so the respondent asked for input from the designer and the engineers, and construction of the retaining wall carried on.

The Board decided that there was not any building work that was different from the building consent.

Failure to Provide a Record of Work 

An LBP must provide a record of work when they complete their restricted building work.

The building work stopped because of contractual issues. The respondent provided evidence that they were attempting to return and continue the work, and there was no formal contractual termination. The respondent said the first they heard they would not be continuing was when they received the complaint, and because of this, the Board found that work was complete when the complaint was made.

As the complaint was made before the work was complete, the respondent had not committed the disciplinary offence of failing to provide a RoW.

Code of Ethics and Disrepute

The high threshold test applied to negligent or incompetent conduct also applies to Code of Ethics breaches and disreputable conduct, in that the conduct must be sufficiently serious enough for the Board to make a disciplinary finding.

The respondent provided copies of a contract and disclosure information for the project during submissions prior to the hearing. The complainant accepted that they had been provided with those documents so the Board will not investigate the allegation further.

Regarding the respondent’s contract administration processes, the issue under investigation was whether the respondent dealt with cost fluctuations and variations in the correct way. Again, the respondent provided the Board with copies of correspondence with the complainant which showed that they were following a process and communicating with the complainant regarding those items. The Board decided that further investigation was not necessary.

The outcome

The Board decided not to uphold the complaint as the respondent did not commit a disciplinary offence.

Quiz

1) What did the respondent do when a change in site conditions meant battering the bank would not be sufficient?

1. They did it anyway because it was on the plans
2. They asked for input from the designer and engineers
3. They just decided to build the retaining wall

2) How did the respondent defend himself against the complaint that he failed to provide a record of work?

1. By providing evidence that he was attempting to return and continue the work
2. There was no formal contractual termination, so he believed he was still contracted to complete the work
3. Both the above

3) What did the respondent provide as evidence against the Code of Ethics allegations?

1. That a contract and disclosure information for the project was sent to the client
2. They provided copies of correspondence with the client which showed he was following a process
3. They were communicating with the client
4. All the above