Complaints and prosecutions - grounds for a complaint

This is the first of a series of articles that will discuss complaints and prosecutions. Over the series of articles, the various processes will be stepped through and guidance will be provided for those who have complaints made about them. Tips will also be given on how to avoid a complaint being made about you.

The first article in this issue looks at how a complaint is made and who can make a complaint.

Who can be subject to a complaint?

Complaints about electrical workers, and the process that must be used when they are made, are provided for in Part 11 of the Electricity Act 1992. The provisions apply to all registered persons, whether they are licensed or not, as well as to persons who were registered at the time the alleged conduct took place. The provisions do not apply to persons who hold a trainee limited certificate. The supervisor is the person who is investigated when a complaint is made about the work of a trainee.

Who can make a complaint?

Anyone, other than a Board Member or the Registrar, can make a complaint about an electrical worker. The person making the complaint does not have to have had an interest in or connection with the prescribed electrical work or the electrical worker that carried out it. It is enough that they know of prescribed electrical work that they consider needs further investigation.

How is a complaint made?

A complaint must be made in writing on the prescribed form. There is also the option of using the Report a Cowboy app to report a concern. Reports that come in from the app are looked at to see whether a complaint should be raised or whether other action, such as a warning, should be taken.

It is important for an electrical worker to keep in mind that there are no costs involved in making a complaint. The costs of investigating a complaint and in holding a hearing are paid for out of licence fees. Some of these costs can be recovered if an electrical worker is found to have committed a disciplinary offence.

The key point for an electrical worker is that making a complaint is very easy and once it has been made the process set out in the Act must be followed. For an electrical worker being involved in a complaint is a stressful and, at times, a costly process. Given this, care needs to be taken to ensure you do not get caught up in a complaint.

What can a complaint be made about?

Section 143 of the Act contains the actual disciplinary offences that can be complained about. The main provision is carrying out or causing to be carried out prescribed electrical work that is contrary to an enactment (the various Acts, Regulations, Standards and Codes that apply to prescribed electrical work). This is a very wide provision and it captures a lot of conduct considering that many of the electrical standards form part of the legislative framework through them being cited in Schedule 2 of the Electricity (Safety) Regulations 2010.

If the conduct is more serious then consideration can be given to whether the electrical worker has been negligent or incompetent or whether they have intentionally or negligently created a risk of serious harm to any person, or a risk of significant property damage. This is the most serious allegation that can be made. It covers situations where persons and/or property are put at risk.

An electrical worker can also be accused of failing to adhere to the limits or conditions of their licence or of carrying out prescribed electrical work without a licence. There are articles in this month’s Electron about electrical workers who were found to have been guilty of this.

A common allegation is that an electrical worker has failed to provide a required return or has provided a false or misleading return. A return is documentation that is required as a result of the prescribed electrical work such as an electrical safety certificate or a certificate of compliance. Remember your certification cannot be withheld for commercial reasons and it needs to be timely and accurate.

There is also the ability to complain about an electrical worker who has employed, directed, or permitted any unauthorised person to do any prescribed electrical work. This provision captures those who try and circumvent the requirement for all prescribed electrical work to be carried out by or under the supervision of an authorised and licensed person.

What can’t a complaint be made about?

As can be seen, the grounds for making a compliant are wide. A complaint must, however, involve prescribed electrical work which is defined in Clause 1 of Schedule 1 of the Electricity (Safety) Regulations. Work which comes under Clause 2 of Schedule 1 which details work that is “not” prescribed electrical work cannot, therefore, be complained about. It also means that contractual or commercial disputes cannot be the subject of a complaint.

What happens once a complaint is made?

The next article in this series will look at what happens once a complaint has been made about an electrical worker.