Chapters

Direct negotiation with the retailer, service provider or manufacturer

A consumer who has a complaint should first try to resolve the problem themselves with the retailer, service provider, manufacturer, etc. Government agencies, such as the ACCC, Ombudsman Offices, and industry-based dispute resolution schemes will usually only be prepared to provide assistance after the dissatisfied consumer has tried and failed to get the problem sorted out through direct negotiation.

Some points to note when negotiating with traders:

  • don’t delay - make your complaint as soon as possible after the problem arises;
  • identify the best person to make your complaint to. In the case of small businesses this will usually be the owner or manager, bigger operations will often have a customer service or complaints section;
  • define the problem as precisely as possible – be thorough without getting caught up in minor details;
  • be firm but calm – when you first make contact, talk or write as though you assume the problem will be resolved to your satisfaction;
  • indicate how you want the problem solved;
  • refer to relevant advertising material, contracts, receipts, warranties, etc. associated with the transaction;
  • give the trader time to look into the problem and get back to you;
  • especially in situations where the trader seems reluctant to assist, indicate your understanding of your legal rights as they relate to your problem (see ‘Contracts’ and ‘Consumer protection’ section of this volume), and your awareness of the sources of external assistance available to you if the problem cannot be resolved through direct negotiation.

It is often helpful to put the complaint in writing, particularly where the consumer has been fobbed off when they first approached the trader with a problem. One benefit of a written complaint is that if the problem cannot be resolved through direct negotiation and it becomes necessary to take it to an external body, a letter is evidence the consumer has first approached the trader themselves. Similarly, where a trader has agreed verbally to take some action, it is often sensible to write to them ‘confirming’ the arrangement.

Some points to note when writing a letter of complaint:

  • include precise details of the date and place where the problem arose;
  • refer to relevant numbers for accounts, references, contracts, etc.;
  • include your contact details;
  • describe what happened and why you are dissatisfied in sufficient detail for a person not previously involved to understand the situation;
  • use neutral, unemotional language as far as possible;
  • explain what action you have already taken and the response, if any;
  • end your letter with a request that the other party respond promptly, in some cases it will be appropriate to request a written response and/or to indicate a date by which you expect a response to be made;
  • sign and date your letter;
  • keep a copy of your letter – it may also be a good idea to sent the letter by fax or some other means allowing you to retain a record proving the letter has been sent.

Ombudsmen

An alternative to the traditional court/tribunal system is to utilise private dispute resolution schemes. The particular industry you are dealing with might operate such a scheme, for example:

  • Energy Ombudsman Tasmania (and equivalent bodies interstate such as the Energy and Water Industry Ombudsman of NSW) investigates and facilitates the resolution of complaints and disputes by consumers against electricity, gas and water providers;
  • the Financial Ombudsman Service (FOS) investigates and facilitates the resolution of complaints and disputes by consumers against financial service providers, including banks and their affiliates, providers of life insurance, superannuation, funds management, financial advice, stockbroking, investment advice and the sale of financial or investment products.
    FOS operates in five Divisions: Banking & Finance; General Insurance; Insurance Broking; Mutuals; and Investments, Life Insurance & Superannuation, reflecting the business areas of three schemes which merged to form FOS. A complete list of organisations covered by the Financial Ombudsman Scheme is online.
    Jurisdictional limits apply within FOS - banking claims are limited to $280,000; life insurance claims are limited to $280,000; income protection insurance claims are limited to $6,000 per month and claims involving funds management, stockbroking, investment and financial advice are limited to $150,000;
  • the Telecommunications Industry Ombudsman (TIO) investigates and facilitates the resolution of complaints and disputes by consumers against telecommunications service providers, including landline, mobile phone and internet services. The TIO will not investigate complaints that are more than 12 months old (except in special circumstances) or where legal proceedings have commenced;
  • the Superannuation Complaints Tribunal  SCT) investigates and facilitates the resolution of complaints and disputes by consumers in relation to superannuation funds, annuities and deferred annuities and Retirement Saving Accounts. The SCT will initially assist consumers to reach an agreed settlement through conciliation. If the complaint cannot be conciliated the SCT will consider submissions and make a determination. A determination of the SCT is binding on both parties. It is, however, possible to appeal a determination to the Federal Court.

All of these schemes are independent and free-of-charge, and are less formal and generally speedier than tribunals and courts. When resolving a dispute the schemes are required to take account of law, good industry practice and what is fair and reasonable in all the circumstances.

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