Complain, Complain, Complain How complaints can (and should) improve regulatory practice

How can regulators better harness intelligence that comes from complaints to get better at managing and minimising harms?

This is an issue I’ve wrestled with over my long career in regulatory practice, as well as in my current role working with regulatory boards and executives around the country. I recently had the pleasure to speak on this subject with two experts in New South Wales: Nicole Lawless, the acting New South Wales Deputy Ombudsman; and Andrew Gavrielatos, Executive Director of Community Engagement in the New South Wales Department of Customer Service.

The right to complain

‘The right to complain is a fundamental right in a democracy’, says Nicole. ‘But there are actually some practical and important purposes that complaints can provide. It provides good information about the effectiveness of the service you are delivering. It also helps to identify aspects that need improvement. It contributes to better customer satisfaction. It also ensures that customers have a way to be reassured that the agency in question is committed to addressing and resolving problems when they arise. It also proves the agency’s transparency and accountability, a very important feature. And specifically for regulatory agencies, it provides extra data, so you can assess an agency’s strengths, weaknesses, and compliance risks.’

Nicole says the combination of a good complaints management program, as well as a good agency complaints management system can actually serve as a really good early warning system that lets an agency know they are at risk of regulatory action. ‘From an external review perspective, which is what we are at New South Wales Ombudsman, complaints provide another opportunity for issues that may not have arisen otherwise.’

The New South Wales Department of Customer Service accepts enquiries and complaints via email, phone, in person, and regular mail. They also have an app called SpeakUp, which allows workers to anonymously report unsafe activities or conditions, including uploading photos.

Andrew and his staff there mostly receive complaints about third parties. He says, ‘Consumers, if it’s in the fair trading world, or workers, if it’s in the safe work world, or people who go to licensed premises, they all come to us to complain. But they’re not complaining about my division; they’re complaining about a trader, or an employer. So we look at where we need to intervene. So that’s a very different view of a complaint, but one that’s not uncommon for regulators.’

Managing expectations

‘Managing expectations is really important’, says Andrew. ‘We’ve gone from managing 60,000 – 70,000 complaints annually to 100,000. We weren’t given additional resources, so we had to develop an approach that would still meet our obligations while also establishing ways of telling customers that we can’t intervene in everything. So we introduced a strong triage approach with a matrix that looks at harms. We have a more minimal intervention for those low harms, and focus more on the greater harms. We provide boundaries to the complainers who come to us, while focusing our work to where it’s most needed.’

And what about principles for handling complaints? Are there general guidelines, or is it for each agency or team leader to decide their policies?

The New South Wales Ombudsman has a Complaint Handling Improvement Program (CHIP), which Nicole says can be applied to any agency.

It revolves around six principles, or commitments:

1. Respectful treatment
2. Information and accessibility
3. Good communication
4. Taking ownership
5. Timeliness
6. Transparency

Nicole say that with these commitments in place you are pretty much guaranteed to have a good process for dealing with complaints.

Unreasonable complainers

But how do you handle unreasonable complainers? Nicole stresses that you need to focus on the behaviour rather than the person.

‘You must focus on any behaviour which raises substantial health, safety, or resource issues for the people involved in the complaint process’, she explains. ‘Unreasonable persistence. They continue to complain when the complaint has been finalised, or they don’t accept the result. Or unreasonable demands, where a complainer requests an unreasonable amount of compensation. Or they keep moving the goal posts by changing their demands. Or a lack of cooperation in providing relevant and only relevant information, or by being completely disorganised. Finally, there is aggression, threats and even violence.’

Andrew finds unreasonable complainers to be a very small minority. He says the important thing is to focus on the actual issue being presented. Because even unreasonable complainers might have valid complaints.

Nicole suggests managing expectations at the outset to be realistic. Also, insisting on respect and cooperation, and giving respect as well. Post unreasonable conduct policies in your office so staff have a clear understanding how they can deal with these individuals, and when they need support from someone more senior.

‘That said’, Nicole points out, ‘there will be times when these strategies don’t work and the stress and disproportionate impact this is having on your resources has to be managed in a more direct way, such as restricting access to only certain members of staff, restricting the issues a complainer can discuss with the agency in question, restricting how complaints can be made, such as they can only email, they can’t call, or their call is limited to five minutes.’

The skill set for complaints teams

Fielding complaints all day is a stressful job, so how do agencies hire and retain staff?

Nicole looks for compassion. She wants people with empathy and patience, who understand the complainer might have a mental illness or be from a different cultural background, or a vulnerable group. It’s important for her staff to be calm, and to remove themselves personally from the dialog. It is also important to have a whole-of-agency approach, including supportive management so the staff member knows they are not alone.

Andrew agrees, and also looks for a strong customer service work ethic. ‘If they’re wrong for the role, they’re gone very quickly, by their own choice. But if they’re right they tend to stay for a very long time.’

Irrelevant complaints

But what to do when a complaint isn’t in your jurisdiction? How do you avoid negative publicity and user frustration at being blown off or bounced around?

Andrew refers to other agencies in as seamless a way as possible. Or in some cases the matter may need to go to a tribunal.

Nicole tries to assure misdirected complaints don’t come to her in the first place, through clear communication on their website and other media. But even if that fails, she insists they should still be having a positive customer service. ‘We’ve developed a direct referral system with other agencies in New South Wales. Then failing that, they can come back to us. Most complainers are pleased that we play this role and they don’t have to get back on the phone or re-write their email. At the end of the day all you can do is make sure that their customer experience is as professional and positive as possible.’

The canary in the coal mine

Andrew says complaints are the canary in the coal mine. His teams in the complaints and compliance areas have weekly meetings to determine the root causes where they should focus their energy.

He says ten years ago complaints were their prime focus. But now they have much more data. For example, in the construction sector alone they have intel from two billion data points, including over two million people, and two thousand building sites.

So even thousands of complaints pales in comparison. And many complaints are white noise or low harm.

Still, complaints matter. On the one hand there is the right to complain, as Nicole points out. The dignity of the individual consumer or employee to be listened to. On the other hand there is the canary in the coal mine aspect of complaints, where they can lead to investigations that uncover a broader abuse.

‘If there are a variety of complaints that are starting to show a trend, you can investigate that impartially’, says Nicole. ‘You can bring a forensic lens to understand what those root causes may be. Then make reports about it and feed it back to the agencies affected.

‘But most complainers just want their problem solved. They don’t want a full-blown investigation that can take one or two years. So if we can broker a resolution with the agency for that individual, that’s a good outcome.’

Andrew says it’s not much use to the complainer if you start to talk to them about systemic issues, policies and procedures. ‘The only thing they care about is can we resolve this particular issue that impacts on them right now. However, it would be remiss of us not to then go on to look at how we can improve our practice. Was it an error of a single officer that we can rectify? Or do we have a poor practice that will see that error occur again and again? That’s a behind-the-scenes piece of work for us.

‘At the end of the day what you want to see is compliance. And your starting point is at the service delivery or the education level, where you want people to be aware what their obligations and responsibilities are. We tend to have staff who have separated responsibilities. There are some gray areas. We have mediators, who might mediate an automobile dispute between a dealer and a customer. There can be tension there. But policies and procedures are clear, so our staff are very much aware of their role, whether it is providing education, or mediating, or being a compliance officer.’

‘It is very important’, says Nicole, ‘that you have a culture from the top down that embraces complaints and will act upon them demonstrably so that your customers and your staff can see that your products and services have been changed by those complaints.’

This article is based on a National Regulators Community of Practice webinar held in 2021. You can see the introductory slide I used to map out the topic, and watch the complete webinar below.