The Voluntary Construction Registry (VCR) Process for Handling Complaints
1. How to make a Complaint
1.1 Any person may make a formal complaint in writing by completing the Complaint Form and sending the Complaint Form to the Executive Officer of the VCR Admissions and Registration Board ( the Executive Officer) Construction House, Canal Road, Dublin 6 or by sending same by email to firstname.lastname@example.org.
1.2 Only complaints against registered members will be considered and the complaints process cannot provide a re-dress/compensation scheme in respect of the complaint but can address the continued membership of the registered member.
2. Grounds of Complaint
2.1 Complaints may be made by a party entitled to make a complaint in accordance with Clause 2.5 hereof in relation to a registered member on the grounds of:
- (a) A conviction in the State for an offence under the Safety Health and Welfare Work Act 2005 and any statutory amendments thereto and any Regulations made thereunder and/or the Safety and Industry Act 1980 and any statutory amendments thereto and any Regulations made thereunder (hereinafter called “the Health and Safety Legislation”).
- (b) A conviction in the State for an offence under the Building Control Acts 1990-2014 and any amendments thereto and Regulations made thereunder (hereinafter called “the Building Control Legislation”).
- (c) Failure to comply with an enforcement notice served on a registered member pursuant to the Building Control Legislation and/or the Health and Safety Legislation.
- (d) A failure by a registered member to notify The VCR Admissions and Registration Board (CARB) of any material matter relating to their registration or re-registration with CARB: this may include but is not limited to:
- (i) Any conviction for an offence under the Health and Safety Legislation and/or the Building Control Legislation;
- (ii) Any change to competence relied upon for registration purposes;
- (iii) In the case of a registered member which is or who is a body corporate or a partner in a partnership any change in the principal officer of the body corporate or partnership as the case may be;
- (iv) A cancellation in the insurance cover for the construction services the registered member provides that was declared on the application for registration or subsequently;
- (v) The imposition of conditions on any registration or licence or authorisation in respect of a registered member or applicant for registration by any regulatory body in or outside the State;
- (e) Where a registered member undertakes works in a class of division of the Register for which they are not registered and are not exempt from registration.
- (f) A failure by a registered member to meet the standards of competency required in complying with the Regulations made under the Building Control Legislation and/or manufacturers’ instructions that may reasonably be expected of a builder carrying out building works (hereinafter called “poor professional performance”).
- (g) A serious and material breach of the Code of Ethics applicable to registered members of VCR.
- (h) The disqualification of a registered member from signing and submitting Certificates of Compliance pursuant to the Building Control Amendment Regulation 2014.
2.2 Persons making a complaint against a VCR registered member builder should have exhausted all other reasonable options for resolution of their complaint ( for example any dispute resolution mechanism as provided for in any contractual arrangements between the parties) prior to making the complaint.
2.3 The following categories of complaint are not grounds of complaint and will not be considered valid by CARB. Complaints relating to:
- (a) Builders who are not on the Register.
- (b) Finishes accepted by the customer at building handover stage.
- (c) Builders undertaking building works prior to the implementation of this complaints procedure.
- (d) Building works that comply with building regulations but where the complainant is seeking standards beyond standard requirements.
- (e) Building works carried out more than 7 years prior to making the complaint.
- (f) Commercial matters such as pricing or payment issues.
- (g) Employment issues such as hours of work or contracts of employment.
- (h) Issues that arise out of an absence of a contract with a clear scope of works and pricing.
- (i) Issues relating to a breach of planning, fees or contractual disputes.
2.4 The consideration of a complaint which is the subject of legal proceedings may be deferred at any stage during the complaints process at the sole discretion of the Executive Officer of CARB or the VCR Complaints Sub Committee as the case may be.
2.5. Complaints may be made:
- (i) By or on behalf of a person where there is a contractual relationship between the registered member and the complainant.(ii) By any person for and on behalf of VCR or any statutory or regulatory authority within the State.
- (iii) By an architect registered with the Royal Institute of the Architects of Ireland or a chartered engineer registered with Engineers Ireland or a chartered surveyor registered with the Society of Chartered Surveyors Ireland.
- (iv) By any person who is directly affected by the matters, the subject of the complaint.
3. What is needed
3.1 Where notification of a complaint arises the following should be confirmed and received by the Executive Officer in order to process the complaint:
- (a) A copy of the complaint form duly completed and signed;
- (b) Details of the complaint as referenced under points 2.1(a) – 2.1(h) as above;
- (c) Relevant documentation;
- (d) Date of the alleged defective works (if applicable) were commenced and completed;
- (e) The address at which any alleged defective works (if applicable) were undertaken;
- (f) Copies of the relevant correspondence with the VCR member; and
- (g) Evidence of the contractual relationship between the registered member and the complainant where applicable.
3.2 The Executive Officer may request other information or clarification as it considers necessary on any or all of the details provided with the complaint form.
4. What happens/What VCR will do
4.1 Once a completed Complaint Form is received by the Executive Officer it will result in the following actions taking place:
- (a) The complainant will be notified in writing that his/her complaint has been received.
- (b) The VCR member will be notified that a complaint has been received and will be provided with a copy of the complaint.
- (c) The VCR member will have 21 days to respond to this notification and may make submissions in relation to the complaint.
- (d) The response of the VCR member will be provided to the complainant.
- (e) The complainant will have 14 days to respond and such response will be provided to the VCR member.
- (f) The VCR member will have 21 days to make further additional submissions in relation to the matter.
- (g) The time limits herein specified may be extended at the sole discretion of the Executive Officer
- (h) The Executive Officer may determine at any stage whether the complaint falls within one or more than one of the grounds of complaint as listed at Clause 2.1(a) – 2.1(h) above and if the complaint does not fall within the grounds of complaint as set out at Clause 2.1 (a) -2.1(h) the complaint shall be dismissed.
- (i) Provided the complaint falls within one or more than one of the grounds of complaint as listed at Clause 2.1(a) – 2.1(h) above the Executive Officer shall (a) consider all information provided, (b) Consider whether the complaint is trivial, vexatious, without substance or made in bad faith and (c) determine whether there is sufficient cause to warrant further action in relation to the complaint
- (j) If the Executive Officer determines that the complaint falls within the grounds of complaint as listed at Clause 2.1(a) – 2.1(h) above and there is sufficient cause to warrant further action in relation to the complaint the file will be prepared for the VCR Complaints Sub-Committee by the Executive Officer and will contain the following information:
- (i) The complaint form duly completed by the complainant.
- (ii) The VCR member’s original VCR Registration Form.
- (iii) All correspondence and submissions from either the complainant or the registered member.
- (iv) Any other documentation that was provided by either the complainant or the registered member.
4.2 The objective period for adjudicating on the complaint shall be 60 working days following receipt of all relevant documents required for the process. Where the timeframe cannot be adhered to, all parties will be notified accordingly.
4.3.1 The VCR Complaints Sub-Committee can request further or additional information from either party in considering the complaint.
4.3.2 If the VCR Complaints Sub-Committee determines an investigation by an inspector is warranted it may appoint such an inspector to conduct an investigation on their behalf and provide an expert report or assessment on any issue. Any such report will be provided to the registered member and to the complainant who will be given an opportunity to make submissions in respect of such report. The inspector will then prepare the final report and submit it to the VCR Complaints Sub-Committee.
4.4 The VCR Complaints Sub-Committee will determine whether the complaint is substantiated and if substantiated under which grounds of complaint as set out in Clause 2.1(a) – 2.1(h) hereof the complaint has been substantiated and shall prepare a report with their determination and providing reasons for their determination.
4.5 In the event that a complaint is not substantiated then the VCR Complaints Sub-Committee will dismiss the complaint and no further action will arise.
4.6 The Complainant and the VCR registered member will be notified of the determination of the VCR Complaints Sub-Committee in writing as soon as possible following the determination by the VCR Complaints Sub-Committee.
5. What will happen to the VCR member?
5.1 The CARB shall consider the determination and report of the VCR Complaints Sub-Committee and where a complaint has been substantiated may impose one or more than one of the following sanctions on the registered member:
- (a) Advise, admonish or censure the registered member in relation to the matter complained of;
- (b) Direct that during a specified period the registered member’s inclusion on the Register shall be suspended;
- (c) Erase the registered member’s name and details on the Register;
- (d) Direct that the registered member’s name and details remain on the Register but impose such conditions as the Admissions and Registration Board considers appropriate to be complied with by the registered member;
5.2 CARB may decide to publish details of the complaint and the sanction imposed on the registered member on the website subject to their absolute discretion.
DISPUTE RESOLUTION IN CONSTRUCTION CONTRACTS
- Building and engineering work in Ireland covers a very wide scope of industrial, commercial and residential construction activity, ranging from infrastructure projects costing several hundred million euro to the renovation and/or extension of small residential or commercial properties. The vast majority of this work will be carried out under one of the many standard forms of construction contract. Many of these contracts have been in general use, both in Ireland and internationally, for several decades and include a range of RIAI, FIDIC, EI/ICE, and NEC contract forms. In 2007 the Department of Finance introduced a suite of contracts, known as the Public Works Contract Forms, which are in use on virtually all Government funded projects. These contracts are now available from the website of the Department of Expenditure and Reform.
- The documentation comprising a construction contract includes not just the formal conditions of contract, but also, as a minimum, the specification and drawings describing the work to be completed, and a pricing document setting out the basis on which the Contractor will be paid for the construction work. Disputes can arise during construction work for a variety of reasons, including, but certainly not limited to, unforeseen site conditions, the cost of instructions to the Contractor to carry out additional or varied work, and disagreements over the scope and specification of the design. It is internationally recognised that litigation in the Courts is a particularly unsatisfactory process for the resolution of construction disputes. Such disputes are often technical and complex and not necessarily related to the interpretation of the contract terms and conditions but to the interpretation of the ancillary documentation describing the design, specification and the site conditions which will be encountered during the course of the work.
- Historically, all standard forms of construction contract included at least one dispute resolution process as an alternative to litigation. Currently, virtually all provide that the parties engage in a two-step alternative dispute resolution process when construction disputes arise. Originally arbitration was the chosen alternative, but over the past fifty years arbitration has evolved into an expensive and protracted procedure which has singularly failed to deliver satisfactory dispute resolution outcomes to construction disputes. In consequence, since the mid 1980’s, parties to construction contracts in both Ireland and the UK have sought alternatives to arbitration. In Ireland this quest led to the development of conciliation (or more recently mediation) as mandatory dispute resolution steps in construction contracts before proceeding to arbitration. In the UK, the mandatory first step before arbitration is adjudication under 1996 and 2009 Economic Development and Construction Acts. In Ireland the Construction Contracts Act 2013 was introduced by the Government as a statutory process to deal with payment disputes in response to difficulties encountered by sub-contractors on major development projects.
- Any consumer or private entity, who engages a Contractor to carry out construction work on their behalf, should ensure that they do so by means of a formal contract. Ideally one of the standard forms of contract should be used. If not, the contract documentation should be in writing, and should include a clear description of the scope of the work to be undertaken, the agreed payment terms and contain a dispute resolution process which is an alternative to arbitration or litigation. The use of a standard construction form of contract will usually meet this latter requirement and will facilitate the timely and cost-effective resolution of any dispute which arises from the construction work. Remember that if disputes arise and an alternative dispute resolution procedure, ideally either conciliation or mediation, is not specified, then the default procedure will be litigation.
Hereunder is a brief description of the various alternative dispute resolution mechanisms referred to above.
Adjudication, in Ireland, is a statutory process intended to regulate payments under construction contracts. The legislation in question is the Construction Contracts Act 2013 which sets minimum contractual payment arrangements for all construction contracts, covered by the Act. Either party to the contract may refer a payment dispute to the adjudication of a person agreed between them, or failing such agreement, on the application of either party, to the adjudication of a person appointed by the Chairperson of the Construction Contracts Adjudication Panel.
Contracts with a value of less than €10,000, or which relate only to a dwelling with an area of less than 200 m2 , occupied, or intended to be occupied, by one of the parties, are exempt from the Act. A detailed explanation of the arrangements for the conduct of adjudications is set out in a Code of Practice, published by the Department of Jobs, Enterprise and Innovation. Adjudication in Ireland is untested and was primarily intended to resolve payment disputes between Main Contractors and sub-contractors and may not be suited for the resolution for disputes on private residential contracts.
Conciliation is a dispute resolution process which, in Ireland developed as an alternative to arbitration in the mid 1980’s. In many standard construction contract forms it is a mandatory, first dispute resolution step, and the parties proceed to arbitration only if they fail to reach agreement at conciliation. It is, in effect, a facilitated negotiation with the primary purpose of assisting the parties to reach an agreed settlement. Correctly conducted it is a quick, informal and relatively low cost procedure with no role for formal advocacy or legal representation.
Conciliation is a confidential and without prejudice process where the Conciliator’s role is to explore the strengths and weaknesses of each parties’ position. The Conciliator can meet with them separately and/or jointly and explore possibilities for settlement not possible in either adjudication or arbitration. If an agreed settlement is not achievable, the Conciliator will then issue a formal Recommendation which will state the Conciliator’s opinion as to how the parties can best dispose of the dispute between them.
Originally the intention of the Conciliator’s Recommendation was a pragmatic settlement proposal which could take account of factors outside the strict contractual relationship between the parties and was “not necessarily based on any principles of common law or equity”. Under the Government’s Public Works Contract Forms the Conciliator is obliged to base the Recommendation “on the rights and obligations of the parties”. Each of the Professional Bodies and the CIF maintains panels of Conciliators from which the parties to a construction contract can select a Conciliator. Each has Conciliation Procedure documents which govern the conduct of conciliation, and will, on the application of one of the parties, and if the contract conditions so provide, nominate a Conciliator to deal with their dispute.
The use of mediation as an alternative dispute resolution process has increased significantly in recent years, not just for the resolution of construction contract disputes but with a more general application to litigation before the Courts.
Mediation, like Conciliation, is a form of assisted negotiation, but unlike Conciliation it is purely facilitative, and the role of the Mediator is to assist the parties to arrive at their own decision. It provides even greater flexibility than Conciliation and the parties are not necessarily bound by the rights and obligations set out in their contract in seeking a compromise on their respective positions.
Mediation is a voluntary process and as such is one which is most likely to result in the retention of existing commercial relationships. It is conducted on a wholly confidential and without prejudice basis and, as in Conciliation, if it is unsuccessful in achieving an agreed settlement, nothing revealed in the course of the process can be used in any subsequent proceedings. It is also a relatively inexpensive and speedy process in which the role of the Mediator is to explore with the parties their interests, strengths and weaknesses and identify possible areas of compromise which could lead the parties to an agreed settlement. It can be used at any stage in the development and/or adjudication of a dispute.
All the Professional Bodies maintain Panels of Mediators and can provide Mediation Procedure documents. In addition, the Mediation Association of Ireland are available to advise on the appointment of Mediators.
Arbitration was originally developed in the UK in the eighteenth century as a confidential alternative to litigation. It began life as a process whereby commercial disputes between members of trade associations were resolved by referring them to the determination of a respected peer group or individual within the trade association. It was designed as an inexpensive, easy and timely process which resolved disputes without damaging existing commercial relationships. Over the years it has evolved into a highly legalistic, potentially very expensive, and protracted process which is unsuited to other than high value disputes.
While VCR has made every attempt to ensure the accuracy and reliability of the information provided. It is provided without warranty of any kind, and we do not guarantee its accuracy, integrity or quality. The information provided cannot be substituted for the advice of a licenced professional relevant to your circumstances. You should not rely on any information appearing on www.voluntaryconstructionregister.ie to make (or refrain from making) any decision or to take (or refrain from taking) any action on which reliance should be placed. Please see VCR Terms and Conditions which apply to the use of the VCR register.