Determinations

TDR Case Note T003859 (2009)

Issue

Faults - failure of service, Loss of business profits.

Background

The customer switched to the internet services of the Scheme Member Provider (Provider) in April 2009. The customer experienced interrupted email and internet services at the time of service transfer despite an undertaking by the provider’s agent that there would be no interruption and that he would be available on the day of service transfer to make sure that was the case. Unfortunately problems arose with the transfer, but the customer was not able to get hold of the agent as promised. The customer sent a fax to the provider, but received no reply for 10 days. He therefore decided to engage his own IT contractor to remedy the problems, for which he received two invoices for $731.25 and $92.80 respectively. He sought reimbursement of those costs together with compensation for lost staff time ($912) and loss of income from clients ($3,780).

The provider disputed that the invoiced sums related wholly to costs incurred by the customer at the time of the transfer of services. The provider also submitted that the customer’s claims for loss of profit and lost staff time were beyond the scope of the scheme’s jurisdiction. In regard to the interruption of services, the provider explained that it was unable to provide reconfiguration assistance to the customer at the time of the service transfer due to the customer’s use of a router which it did not support and with which it was unfamiliar. The provider did, however, credit an amount of $165 to the customer.

Adjudicator’s decision

The adjudicator noted that the provider did not contest the customer’s assertion that he was assured by the provider’s agent that there would be no disruption of services. The provider had acknowledged this and apologised to the customer. The issue was therefore confined to the remedies for compensation sought by the customer.

With reference to clause 33.8(a) of the Customer Complaints Code (the Code), the Scheme Agent cannot consider claims for compensation that are based on “loss of profits or indirect loss”. The adjudicator upheld the provider’s submission that the customer’s claims for compensation of both payroll costs for unproductive staff time and loss of client income were excluded from the scope of the TDR scheme.

With regard to the complaint for reimbursement of costs incurred as result of the failure of service, the invoice for $92.80 was for a second password reset and therefore could not be seen as a cost arising from or associated with the transfer of services. The other invoice, for $731.25, included some work unrelated to the transfer issues, and the invoice did not provide a breakdown of what time was spent on this work as distinct from the transfer-related work. The adjudicator considered that it was reasonable to allocate one hour of invoiced time to unrelated work, and as the contractor’s hourly rate was $110, this amount was deducted. The adjudicator noted that the provider had already reimbursed the customer an amount of $165.

Final outcome

The adjudicator concluded that: (1) the complaint regarding the compensation for costs associated with loss of staff time and loss of income from clients was excluded from the scope of the TDR scheme, as provided for in s 33.8 (a) of the Code; and (2) the customer’s complaint regarding a breach of service standards with a claim for reimbursement of costs incurred was upheld and the provider was required to pay reimbursement of $456.25 (the invoiced amount of $731.25 less $110 for unrelated work and $165 already credited to the customer’s account).