Jurisdiction
This dispute essentially is about customer service.
The scheme member has not referred to any relevant exclusions and I do not consider that any apply.
It is clear that the scheme member acknowledges some errors and has made offers to settle these matters. That has not been possible, but that indicates that there is a genuine dispute. The merits of which shall be considered in mediation or adjudication.
Dispute
- This complaint arises from an in-store purchase the customer made in December 2023. The customer lost their Oppo phone, and purchased a new phone, a Samsung Galaxy S23 Ultra. At the same time, the customer signed up for an additional monthly phone plan and bought Trend Micro anti-virus software, a case for the Samsung and a UE Boom speaker.
- The customer is dissatisfied with these purchases because they wanted their existing number transferred to the new plan (as opposed to having two plans), and they thought the Samsung phone was sold with insurance, but it was not. The customer also says they paid a deposit in cash and a further payment on EFTPOS but only one payment was credited to their account, and that the screen protector was not properly applied.
- A few days later, the customer advised the provider of the theft of the Oppo, but the provider accidentally blocked the new Samsung as well as the Oppo. In the course of correcting this, the provider accidentally unblocked the Oppo for a few days. As a result of these errors, the customer was not able to fully use the Samsung while it was blocked, and is concerned that their personal information has been compromised by the Oppo being unblocked. The customer asked the provider to provide the IP addresses accessed by the Oppo, but it declined to do so.
- The customer has also raised billing concerns about being charged for two plans, and that payments they made towards the plan were not applied to their account. The customer disputes the amount owing.
Dispute outcome
- TDR’s final determination is that the customers complaint is partially upheld. Some issues have not been able to be upheld due to a lack of supporting evidence, while the provider has made reasonable offers for other aspects. TDR thinks that the provider should give further consideration to the customer’s request to access the IP addresses used by the Oppo after its theft.
Final determination
- In making this determination TDR has considered the information provided by the customer and the provider and:
- Fairness in all the circumstances
- Any relevant legal requirements
- Any relevant telecommunications code.
- TDR requested that the customer provide information to assist with exploring the issues they have raised. This information was not provided, and there has been no settlement of the complaint.
- TDR provided both parties with the opportunity to respond to the proposed determination, but neither responded.
- The reasons for the decision, along with the background to the dispute and the positions of the parties, are set out below.
The dispute
- In November 2021, the customer purchased an Oppo phone from the provider with repayments across 36 months. The customer also purchased a plan, with additional per monthly charges.
- The customer’s monthly bills were approximately $85 per month. The customer paid weekly payments towards the account, resulting in her account being in credit by December 2023. At this time, there was still a balance owing on her Oppo phone.
- During December 2023, the customer visited a branch and purchased the following items:
- A deposit for a Samsung Galaxy S23 Ultra with monthly repayments across 36 months.
- A deposit for a case for the Samsung with monthly repayment across 24 months.
- A deposit for a UE Ears Hyperboom speaker with monthly repayments of across 24 months.
- A three-year subscription to Trend Micro, an anti-virus software provider, with monthly repayments across 36 months.
- The customer also purchased a new plan, which was attached to a new mobile number. The existing mobile number was changed to a Companion mobile for a monthly fee.
- The provider says that the customer called and reported her Oppo lost during December 2023. The provider blocked the Oppo phone, and also accidentally blocked the Samsung.
- Early 2024, the provider unblocked both phones. A few days later, it blocked the Oppo again.
- The customer says the person who had her Oppo phone posted some of her photos on social media, leading to her friend seeing those photos and identifying the likely location of the person who had the Oppo phone. The customer asked the provider to provide the IP address used to access the Oppo, but the provider declined to do so.
- The customer raised a complaint, and the provider refunded a number of charges, waived the outstanding balance on the Oppo, and provided her with a gesture of goodwill payment. It also offered to cancel the Trend Micro subscription and refund the charges, and to reapply the screen protector for free.
- The customer escalated their complaint to TDR because they wanted independent advice on whether the offer made by the provider was fair and reasonable.
Positions of the respective parties
The customer’s position
- The customer has raised the following complaints:
- The provider has failed to credit a deposit to their account.
- The provider incorrectly signed the customer up for a new mobile plan, when they wanted their existing number switched to a new plan and the old plan cancelled.
- The customer believed insurance was sold with the Samsung, but instead was sold anti-virus software.
- The screen protector was not properly applied.
- As a result of payments not being properly applied to their account, the provider has miscalculated the balance owing on the Oppo.
- The provider incorrectly blocked the Samsung, and also incorrectly unblocked the Oppo.
- The provider declined to provide information asked about the IP address used by the Oppo phone.
The provider’s position
- The provider acknowledges it incorrectly blocked and unblocked the two phones. It says the customer’s other concerns are unsubstantiated. It has nonetheless provided the following:
- A credit of two months’ monthly charges in recognition of the wrongful blocking of the Samsung.
- Refunded two months’ monthly charges for the new number added to the account, and removed this number.
- Waiver of the outstanding balance owing on the Oppo.
- A goodwill payment.
- It also offered to replace the screen protector for free, and to remove the Trend Micro product and refund the charges associated with it.
Reasons for the decision
Introductory comments
- Before TDR set out the reasons for the decision, TDR has outlined below some general comments about TDR’s approach to complaints.
- Firstly, we are an evidence-based process. This means that where a customer makes a claim against a scheme member, we may need evidence in support of that claim to uphold a complaint. The evidence may be someone’s recollection, but where that recollection does not align with the available documentary evidence, we are likely to prefer the documentary evidence. This is because memories change and fade over time, whereas documentary evidence like contracts and invoices do not. Where two parties disagree over the facts, we usually need some evidence supporting one party’s version of events over the other in order to make a finding. If we cannot make a finding, we cannot uphold the customer’s concern.
- Secondly, we can only recommend compensation for direct financial loss – that is, where a mistake has caused someone to not have money they would have otherwise had. This can include where someone has paid for a service they did not receive. We do not have the ability to consider claims for indirect losses or intangible impacts like inconvenience or distress.
Two deposits
- The customer says that they paid a deposit for the items purchased during December 2023: However, the contract the customer signed shows one deposit for the purchases. There is no record of any second deposit paid. TDR has asked the customer whether they can provide evidence of the second payment, but they have advised they cannot. As such, there is insufficient evidence for TDR to uphold this issue.
Replacement plan
- The customer says that they purchased the Samsung to replace the Oppo because the Oppo had been stolen, and that they did not want a second monthly plan; the customer wanted their existing number transferred to the new plan. However, the provider believes the customer wanted to purchase an additional (not a replacement) phone and plan.
- The provider also says that the customer notified them of the loss of the Oppo several days after they purchased the Samsung. This timing is peculiar, as one would expect that the customer would have advised the provider about the theft when they bought the Samsung. TDR asked the customer to clarify the timing of the theft of the Oppo and the notification of this to the provider. The customer has not responded to the query.
- In light of this unexplained inconsistency, TDR is unable to determine the circumstances of the purchase of the Samsung and the new plan. However, TDR do note that the provider refunded the charges for the new plan – which is the outcome TDR would have recommended if we had found in the customer’s favour on this issue.
Blocking the phones
- The provider has acknowledged it acted in error when it blocked the Samsung and later unblocked the Oppo. The matter for TDR to consider, therefore, is what is an appropriate remedy for this issue.
- As a result of the erroneous blocking of the Samsung, the customer was unable to use their phone plan for 48 days. The provider has refunded two months’ of the monthly plan in recognition of this, which addresses the direct financial loss the customer has suffered.
- The customer is concerned that the unblocking of the Oppo has resulted in the unauthorised sharing of their personal information on social media. In this regard, it is important to note that customers, not phone retailers, are generally responsible for safeguarding their phones against unauthorised access. Unauthorised access can be prevented by securing a phone with a PIN, password, pattern or biometrics. After loss or theft, Android phones can be locked remotely and information can be erased via the customer’s Google account. This is important because while a retailer can block a phone from accessing a mobile network, a blocked phone can still be used for other functions, including Wi-Fi.
- Given the above, TDR do not have sufficient information to determine if the provider’s action in unblocking the Oppo caused or contributed to the unauthorised use of the customer’s personal information. In any event, there appears to be no financial loss arising from this issue and TDR cannot recommend compensation for indirect losses or intangible impacts.
Insurance and anti-virus
- The customer says they were told the Samsung came with insurance, however, the customer later learned this was not correct and the product they had been sold was Trend Micro anti-virus software. The provider denies that it told the customer that the Samsung came with insurance, as it had ceased selling insurance for phones in May 2023. Further, the provider has pointed out that the contract for the sale of the Samsung shows the description of the Trend Micro product.
- Given the disagreement between the parties and the lack of evidence supporting the customers recollection, TDR is unable to conclude that the provider led the customer to believe that the Samsung came with insurance.
- It is concerning that the customer did not understand the nature of the Trend Micro product they were sold. However, the provider has offered to cancel the subscription and refund the charges associated with this product, which addresses any concern TDR may have about the sale process or product disclosure.
Screen protector
- The customer says that the screen protector on their Samsung was not properly applied. The provider has offered to replace this for free, which is a fair offer to address this issue.
Billing concerns
- The customer believes the balance owing on her Oppo was less then what the provider believes at the time it was stolen. Taking into account the original purchase price and the monthly repayments, TDR has found that the balance owing in the December 2023 invoice was correct.
- The customer has raised concerns that the weekly payments were not applied to their account following the changes in December 2023. However, the invoices provided by the provider show that these payments have indeed been received and applied to the account.
Request for IP addresses
- The customer says that the provider declined their request for access to the IP address used by the Oppo phone. Under information privacy principle 6 of the Privacy Act 2020, individuals are able to access the personal information agencies hold about them. In TDR’s experience, information about IP addresses – including those involving unauthorised use – are the personal information of the person to whom the phone belongs. TDR recommend the provider gives further consideration to the customer’s request to access this information.
- While the customer suggests that if the provider provided this information, they may have been able to recover the stolen Oppo phone, this is too speculative to constitute a direct financial loss. TDR are therefore not able to recommend compensation for this issue.
- If the customer remains dissatisfied with the provider’s response to their request for information, the customer may wish to contact the Office of the Privacy Commission.
Responses of the respective parties to the proposed determination
- Neither the customer nor the provider responded to the proposed determination.
Conclusion
- In light of the above, the final determination is that the customers complaint is partially upheld.
- While some errors have been identified, TDR are unable to recommend compensation because the amounts already paid by the provider exceed the direct financial loss TDR has identified.
- TDR recommend the provider further consider the customer’s request for access to the IP address logs for the Oppo phone in accordance with its obligations under the Privacy Act 2020.