Guidelines for managing unreasonable complainant conduct

Background

Registrars have powers to investigate complaints about the compliance of registered community housing providers with community housing legislation.

This guidance is designed to help regulatory staff take a systemic and consistent approach to managing their interactions with complainants. It provides strategies to appropriately manage complainants, particularly those that are perceived to be behaving unreasonably.

There is no one size fits all approach to managing unreasonable complainant conduct (UCC). The suggested strategies should be adapted to reflect the individual circumstances of each case. 

Definition

Most complainants act reasonably and responsibly in their interactions with the National Regulatory System for Community Housing (NRSCH), even when they are experiencing high levels of distress, frustration and anger about their complaint. However, in a very small number of cases, complainants may behave in a way that is inappropriate and unacceptable – despite best efforts to help them. They can be aggressive and verbally abusive towards staff. They may threaten harm and violence, contact the office excessively, make inappropriate demands on time and resources and refuse to accept the outcome and recommendations in relation to their complaints. When complainants behave in this way, we consider their conduct to be ‘unreasonable’.

Unreasonable complainant conduct (‘UCC’) is any behaviour by a current or former complainant which, because of its nature or frequency raises substantial health, safety, resource or equity issues for the NRSCH, regulatory staff, other service users and complainants or the complainant himself/herself.

Scope

These guidelines apply to:

• NRSCH staff with the responsibility for managing complaints received regarding the activities of community housing providers registered under the provisions of the NRSCH

These guidelines should be read in conjunction with the NRSCH Complaints Management Policy. The Guidelines have been agreed and adopted by all jurisdictions participating in the NRSCH.

Unreasonable conduct framework

Unreasonable conduct can be divided into five broad categories. This guidance identifies the specific behaviours that fall under each category .

1.    Unreasonable persistence

Unreasonable persistence is continued, incessant and unrelenting conduct by a complainant that has a disproportionate and unreasonable impact on staff, services, time and/or resources. Some examples of unreasonably persistent behaviour include:

• An unwillingness or inability to accept reasonable and logical explanations including final decisions that have been comprehensively considered and dealt with.
• Persistently demanding a review without arguing or presenting a case for one.
• Pursuing and exhausting all available review options and
  refusing to accept further action cannot or will not be taken on their complaints.
• Reframing the same complaint to achieve a different response.
• Inundating staff/organisation with phone calls, visits, letters, and emails
  (including copying staff or the organisation into correspondence) after repeatedly being asked not to do so.
• Contacting different people within the organisation and/or externally to get a different outcome to their complaint. This is referred to as internal and external forum shopping.

2.    Unreasonable demands

Unreasonable demands are any demands (express or implied) that are made by a complainant that have a disproportionate and unreasonable impact on staff, services, time and/or resources. Some examples of unreasonable demands include:

• Issuing instructions and making demands about how a complaint has or should be handled, the priority it was or should be given, or the outcome that was or should be achieved.
• Insisting on talking to a senior manager or the Registrar personally when it is not appropriate or warranted.
• Emotional blackmail and manipulation with the intention to guilt, intimidate, harass, shame, seduce or portray themselves as being victimised.
• Insisting on outcomes that are not possible or appropriate in the circumstances – e.g. for someone to be sacked or prosecuted, an apology and/or compensation without a reasonable basis for expecting this.
• Demanding services that are of a nature or scale that we cannot provide when this has been explained to them previously.

3.    Unreasonable lack of cooperation

Unreasonable lack of cooperation is an unwillingness and/or inability by a complainant to cooperate with staff,  and the complaints system and processes that result in a disproportionate and unreasonable use of services, time and/or resources. Some examples of unreasonable lack of cooperation include:

• Sending a constant stream of comprehensive and/or disorganised information without clearly defining any issues of complaint or explaining how they relate to the core issues being complained about. This only applies where the complainant is clearly capable of doing this.
• Providing little or no detail with a complaint or presenting incomplete information.
• Refusing to follow or accept instructions, suggestions, or advice without a clear or justifiable reason for doing so.
• Arguing frequently and/or with extreme intensity that a particular solution is the correct one in the face of valid contrary arguments and explanations.
• Displaying unhelpful behaviour – such as withholding information, acting dishonestly, misquoting others, and so forth.

4.    Unreasonable arguments

Unreasonable arguments include any arguments that are not based in reason or logic, that are incomprehensible, false or inflammatory, trivial or delirious and that disproportionately and unreasonably impact upon on the NRSCH, staff, services, time, and/or resources. Arguments are unreasonable when they:

• fail to follow a logical sequence
• are not supported by any evidence and/or are based on conspiracy theories
• lead a complainant to reject all other valid and contrary arguments
• are trivial when compared to the amount of time, resources and attention that the complainant demands
• are false, inflammatory or defamatory.

5.    Unreasonable behaviour

Unreasonable behaviour is conduct that is unreasonable in all circumstances – regardless of how stressed, angry or frustrated a complainant is – because it unreasonably compromises the health, safety and security of staff or the complainant. Some examples of unreasonable behaviours include:

• Acts of aggression, verbal abuse, derogatory, racist, or grossly defamatory remarks
• Harassment, intimidation or physical violence.
• Rude, confronting and threatening correspondence.
• Threats of harm to self or third parties, threats with a weapon or threats to damage property including bomb threats.
• Stalking (in person or online).
• Emotional manipulation.

NRSCH Registrars have a zero-tolerance policy towards any harm, abuse or threats directed towards them or their staff. Any conduct of this kind will be dealt with in accordance with our duty of care and occupational health and safety responsibilities.

Modifying or restricting access to staff, premises or services

There will be times when strategies used to manage UCC are not effective or appropriate. It may be necessary to modify or restrict contact with the people involved to ensure equity and fairness,  efficiency and protect staff health and safety.

A formal warning letter will generally be given to a complainant about their conduct prior to the execution of any strategies identified in these guidelines; however, there may be instances where the enactment of these guidelines is necessary without a formal warning.

Decisions to modify or restrict a complainant’s ability to access premises, communicate with staff or use regulatory services are a management responsibility and should always be approved by a Registrar or a senior delegate.

Alternative service arrangements

Alternative service arrangements can be used to modify or restrict the way in which NRSCH staff interact with or deliver services to a complainant to minimise the risks posed by their conduct.

When managing UCC, discretion will be used to adapt restrictions to a complainant’s personal circumstances, level of competency, literacy skills, etc. More than one strategy may be needed in individual cases to ensure their appropriateness and efficacy. Alternative service arrangements can be used to restrict:

1.    Who a person can contact.

Where a complainant tries to forum shop internally, changes their issues of complaint repeatedly, reframes their complaint, or raises an excessive number of complaints it may be appropriate to restrict their access to a single staff member (a sole contact point) who will exclusively manage their complaint(s) and interactions. This will ensure they are dealt with consistently and may minimise the chances for misunderstandings, contradictions and manipulation.

Arrangements should be reviewed every three months to ensure the health and safety of staff.

Complainants who are restricted to a sole contact person will be given a contact phone number and dedicated email address so they can make contact if their primary contact is unavailable – e.g. they go on leave or are otherwise unavailable for an extended period of time.

2.    What subject matter the NRSCH will respond to

Where complainants repeatedly send written communications, letters, emails, or online forms that raise trivial or insignificant issues, contain inappropriate or abusive content or relate to a complaint/issue that has already been comprehensively considered and/or reviewed (at least once), the Registrar may restrict the issues/subject matter the complainant can raise. For example, the Registrar may:

• Refuse to respond to correspondence that raises an issue that has already been dealt with comprehensively, that raises a trivial issue or is not supported by clear evidence. The complainant will be advised that future correspondence of this kind will be read and filed without acknowledgement unless the Registrar decides that it needs to be pursued further.
• Restrict the complainant to one complaint/ issue per month. Any attempts to circumvent this restriction, for example by raising multiple complaints/ issues in the one complaint letter may result in modifications or further restrictions being placed on their access.
• Return correspondence to the complainant and require them to remove any inappropriate content before we will agree to consider its contents. A copy of the inappropriate correspondence will also be made and kept for our records to identify repeat/further UCC incidents.

3.    When and how a person can make contact

If a complainant’s telephone, written or face-to-face contact with the NRSCH places an unreasonable demand on time or resources because it is overly lengthy (e.g. disorganised and voluminous correspondence) or affects the health safety and security of staff because it involves behaviour that is persistently rude, threatening, abusive or aggressive, we may limit when and/or how the complainant can interact with us. This may include:

• Limiting their telephone calls or face-to-face interviews to a particular time of the day or days of the week.
• Limiting the length or duration of telephone calls, written correspondence or face-to-face interviews. For example:
• Telephone calls may be limited to [10] minutes at a time and will be politely terminated at the end of that time.
• Lengthy written communications may be restricted to a maximum of [10] typed or written pages, single sided, font size 12 or it will be sent back to the complainant to be organised and summarised – This option is only appropriate in cases where the complainant is capable of summarising the information and refuses to do so.
• Limiting face-to-face interviews to maximum of [45] minutes.
• Limiting the frequency of telephone calls, written correspondence or face-to-face interviews. Depending on the nature of the service(s) provided we may limit:
  • Telephone calls to [1] every two weeks/ month.
  • Written communications to [1] every two weeks/month.
  • Face-to-face interviews to [1] every two weeks/month.
• For irrelevant, overly lengthy, disorganised or frequent written correspondence we may also:
  • Require the complainant to clearly identify how the information or supporting materials relate to the central issues identified in their complaint.
  • Restrict the frequency with which complainants can send emails or other written communications.
  • Restrict a complainant to sending emails to a particular email account (e.g. the organisation’s main email account.)

Writing only restrictions

When a complainant is restricted to ‘writing only’ they may be restricted to written communications through:

• Australia Post only
• Email only to a specific staff email or general office email account
• Some other relevant form of written contact, where applicable.

If a complainant’s contact is restricted to ‘writing only’, the specific means that the complainant can use to contact the Registrar (e.g. Australia Post only) will be clearly identified and conveyed to the complainant. Also, if it is not suitable for a complainant to enter the premises to hand deliver their written communication; this must be communicated to them as well.

Any communications that are received by the Registrar in a manner that contravenes a ‘write only’ restriction will either be returned to the complainant or read and filed without acknowledgement.

Contact through a representative only

In cases where contact with a complainant cannot be restricted and their conduct is particularly difficult to manage, the Registrar may restrict their contact to contact through a support person or representative only. The support person may be nominated by the complainant but must be approved by the Registrar or their delegate.

When assessing a representative/support person’s suitability, the Registrar will consider factors like: the nominated representative/support person’s competency and literacy skills, behaviour and relationship with the complainant.

If the Registrar determines that the representative/support person may exacerbate the situation with the complainant the complainant will be asked to nominate another person or we may assist them in finding an appropriate support person.

4.    Where a person can interact with staff face-to-face

If a complainant is violent or overtly aggressive, unreasonably disruptive, threatening or demanding or makes frequent unannounced visits, the Registrar may consider restricting face-to-face contact with them.

These restrictions may include:

• Restricting access to secured premises or areas of the office – such as the reception area or secured room/facility.
• Restricting the complainants ability to attend the premises to specified times of the day and/or days of the week only – for example, when additional security is available or to times/days that are less busy.
• Allowing the complainant to attend our office on an ‘appointment only’ basis and only with specified staff. Note: during these meetings staff should always seek support and assistance of a colleague for added safety and security.
• Banning the complainant from attending the premises and allowing
  some other form of contact – e.g. ‘writing only’ or ‘telephone only’ contact.

Terminating a complainant’s access to services

In rare cases, and as a last resort, when all other strategies have been considered and/or attempted, the Registrar may decide that it is necessary to completely restrict a complainant’s contact/access to NRSCH services.

A decision to have no further contact with a complainant will only be made if it appears that the complainant is unlikely to modify their conduct and/or their conduct poses a significant risk for staff or other parties because it involves one or more of the following types of conduct:

• Acts of aggression, verbal and/or physical abuse, threats of harm, harassment, intimidation, stalking, assault.
• Damage to property while on our premises
• Threats with a weapon or common office items that can be used to harm another person or themselves.
• Physically preventing a staff member from moving around freely either within
  the office or during an off-site visit – e.g. entrapping them in their home.
• Conduct that is otherwise unlawful.

 

In these cases, the complainant will be sent a letter from the Registrar notifying them that their access has been restricted.

A complainant’s access to services and premises may also be restricted (directly or indirectly) using the legal mechanisms such as trespass laws/legislation or legal orders to protect members of staff from personal violence, intimidation or stalking by a complainant.

Using other strategies to manage conflicts with complainants

If the Registrar determines that contact with the complainant cannot be terminated in a particular case or that staff bear some responsibility for causing or exacerbating their conduct, the Registrar may consider using a Registrar from another jurisdiction, representative of the community housing provider, an alternate staff member or senior staff to attempt to resolve the conflict with the complainant and attempt to rebuild the relationship. However, this approach may not be an appropriate or effective strategy particularly if the complainant is uncooperative or resistant to compromise. Each case will be assessed on its own facts to determine the appropriateness of this approach.

Roles and Responsibilities

Regulatory staff

All staff are responsible for familiarising themselves with these guidelines and are encouraged to explain the contents of this document to all complainants particularly those who engage in UCC or exhibit the early warning signs for UCC.

However, it must be emphasised that any strategies that effectively change or restrict a complainant’s access to services must be  carefully considered by the Registrar or their delegate.

Staff are also responsible for recording and reporting all UCC incidents they experience or witness (as appropriate) to the Registrar within 24 hours of the incident occurring. A file note of the incident should also be attached to the relevant case or account in Community Housing Regulatory Information System (CHRIS).

Registrar

The Registrar in consultation with relevant staff, has the responsibility and authority to change or restrict a complainant’s access to services in the circumstances identified in these guidelines. When doing so they will aim to impose any service changes/restrictions in the least restrictive ways possible. The aim, when taking such actions will not be to punish the complainant, but rather to manage the impacts of their conduct.

When applying these guidelines the Registrar will also aim to keep at least one open line of communication with a complainant. However, in extreme situations all forms of contact may need to be restricted for some time to ensure the health and safety and security of staff and/or third parties.

The Registrar or their delegate is also responsible for recording, monitoring and reviewing all cases where this policy is applied to ensure consistency, transparency and accountability for the application of these guidelines.