Dealing with Poor Performance by an Engineer

All members of the engineering profession are expected to practice in a competent, diligent and ethical way. A consumer who considers that an engineer has not acted competently or ethically, or has acted negligently, is entitled to notify IPENZ or make a complaint which will lead to investigation by IPENZ of the performance of the engineer.

Making a complaint

Complaints can be made on one of three bases:

• Incompetence (a pattern of unsatisfactory work): a competent engineer may make an occasional mistake, but incompetence is suggested by recurring work below an acceptable professional standard.
• Negligence (insufficient care in a particular instance): an engineer who is generally competent can be negligent in a particular situation, and if so must face the consequences. Making a simple mistake is not in itself negligence; negligence is the result of insufficient care.
• Unethical practice (in breach of the CPEng Code of Ethical Conduct; IPENZ regulations for IntPE(NZ), ETPract, IntET(NZ) and CertETn ; IPENZ Code of Ethics as is appropriate): engineers must act ethically and to the moral standards set by the profession as a whole. For example, an engineer who fails to maintain client confidentiality may be competent and not negligent, but still in breach of the ethical code of the profession.

In all cases, complaints need to be made in writing to the Chief Executive. The regulations under which complaints are processed will depend on either the register the engineer is registered, or IPENZ rules.  The following table summarises this information.

IPENZ jurisdiction

IPENZ will act on a complaint provided it has jurisdiction over the engineer concerned. IPENZ has jurisdiction over members of the wider engineering profession who are currently registered holders of a current competence quality mark (CPEng, IntPE, ETPract, IntET, CertETn) and current Members of IPENZ.

In addition, IPENZ has jurisdiction over any engineer who is no longer a chartered professional engineer, but who was a chartered professional engineer at the time of the relevant conduct.

IPENZ has no jurisdiction over other engineers.

IPENZ does not have jurisdiction over fees charged for work, and is not a mediator to resolve commercial disputes. If informed of such matters IPENZ will try to guide complainants to other mechanisms to resolve the issues.

Notification of Poor Performance

If you consider that an engineer has performed poorly or the quality of the engineering provided was poor, you can seek a remedy using the complaints system outlined above.  However, if you are unsure whether the matters of concern in your situation are adequate grounds for a formal complaint, you can inform IPENZ by writing a letter outlining the facts in relation to your case.  An IPENZ staff member will assess the evidence provided in your letter to determine the appropriate action to be taken in response to your letter of notification.  If there is evidence of incompetence, negligence or a breach of the ethical code of conduct, IPENZ can initiate an inquiry on its own motion.  The outcome of this inquiry could lead to one of the following outcomes: IPENZ can action a complaint against the engineer involved if there are grounds for a formal complaint; IPENZ can require the engineer to undertake registrant to undertake an early continued registration assessment if the inquiry finds evidence that questions the engineer’s competence; IPENZ can retain the letter of notification on the engineer’s record for 12 months - if subsequently another party lodges a similar complaint about the engineer within the 12 month period, IPENZ can resume the inquiry; or IPENZ can dismiss the matter.

Dissatisfaction with contractual conditions
What if you are satisfied with the technical content of the work but unhappy with the timeliness or cost or some other contractual issue?   These matters are generally not dealt with directly by IPENZ unless you have signed an IPENZ/ACENZ Short Form or Model Conditions Contract where IPENZ can facilitate a resolution.  The Disputes Tribunal is one means for handling these types of disputes.

Disputes – Advice to purchasers of engineering services
What if you are dissatisfied with the work or behaviour of an engineer?  You should start keeping a record of communications with the engineer as well as building up a file of material that you think is relevant to the dispute. The IPENZ Manager – Ethics and Discipline is available to discuss the processes with you.

The first step you should take in any matter of dispute is to seek to resolve matters directly with the engineer – this is usually the quickest way to get a result. You should in the first instance raise the issue verbally with the engineer.

If you are not satisfied with the response then put your complaint to the engineer in writing. In your letter, outline clearly what you are dissatisfied with. Give specific examples of where your expectations were not met, with dates and locations if relevant and any other details that provide specific information. Give the engineer a reasonable length of time to respond. Two weeks should be the minimum. If the engineer is an employee of a company you should also bring the dispute to the attention of the company management.

If the engineer’s response is unacceptable to you, you should then write to the engineer and state that you remain dissatisfied. If you have decided to take the dispute further you should state that in the letter. Some times this may bring a reconsideration of the previous response.

If you have decided to proceed the next step there are a number of processes that you can use depending upon the circumstances. These processes are listed below and are not mutually exclusive i.e. you can use more than one of them although it is advisable that they are not all taken at the same time.

Disputes Tribunal

Should the dispute be largely commercial or contractual in nature, e.g. a dispute over whether the invoice was GST inclusive or exclusive, the Disputes Tribunal is an effective way of resolving such disputes. The Ministry of Justice web-site www.courts.govt.nz/tribunals/disputes_tribunals.html gives more information on the Disputes Tribunal process. This process is free but is limited to claims up to $7,500 (or $12,000 if all parties involved agree).

Association of Consulting Engineers NZ (ACENZ) Complaints on business matters

Many consulting engineering businesses are members of the Association of Consulting Engineers New Zealand (ACENZ). ACENZ has a complaints process that handles complaints against its member companies. These complaints will generally be over business practices or apparently slow service from the company, rather than the performance of an individual engineer.

IPENZ Facilitated Dispute Resolution

If you signed an IPENZ/ACENZ Short Form or Model Conditions of Engagement (these are standard contract documents provided by the profession to help members and their clients) these make provision (under Section 7 Settlement of Disputes in Model Conditions of Engagement) to provide for the nomination of a conciliator or arbitrator by IPENZ to resolve the dispute. Before invoking this provision you need to provide written notice to the other party advising that you wish to take the dispute to arbitration.

Before doing so you are welcome to discuss your options and the process with our key staff . The costs of the conciliator is borne equally between the two parties.

Complaints to IPENZ on matters of competence or ethical conduct

IPENZ has procedures to hear complaints against engineers who are either IPENZ Members or registered on one or more of the competence registers administered by IPENZ. If the finding of a complaint is in favour of the complainant, the disciplinary action that IPENZ can take is limited to actions in respect of the engineer’s registration or IPENZ membership.

IPENZ cannot rule in respect of claims for damages resulting from unethical or incompetent engineering activities. However, if a complaint is upheld by IPENZ, a civil court may take this into account in deciding on any subsequent civil claim.

Engineers on any of the competence-based registers must meet the minimum code of ethical conduct for that register (as stated in the CPEng Ethical Code of Conduct , or the IPENZ Regulations for the IntPE(NZ), ETPract, IntET(NZ), and CertETn registers).  The rules/regulations for each register also set out procedures by which complaints into either alleged breaches of the code, or complaints alleging that the registrant (or former registrant in the case of Chartered Professional Engineer) has performed professional engineering services in a negligent or unsatisfactory manner, are to be investigated and any disciplinary action taken.

IPENZ members are expected to adhere to the IPENZ Code of Ethics, and to perform engineering activities to a level of competence consistent with their membership class in the Institution. IPENZ has regulations which set out the procedures for complaining about a member.
For more information on IPENZ Code of Ethics.

Writing complaints to CEO

In all cases, complaints need to be made in writing to the Chief Executive stating, the name of the person(s) being complained about, the nature of the complaint and any material substantiating the compliant. The file that you have built up will provide most of the material for this. In practice, many people find it easiest to call us first and discuss the situation before lodging a complaint. This enables us to work with you to define the specific nature of the complaint more precisely. If this is the case, we can assist you in converting your case to writing in an appropriate manner. You may lodge the same complaint in respect to more than one of the Registers or IPENZ membership.

Following receipt of a complaint, IPENZ will make a preliminary investigation, normally by a senior staff member. Should this investigation indicate that the complaint has substance and is one over which we have jurisdiction under either the CPEng Act or the IPENZ Rules and Regulations, a formal Investigation Committee will be formed. That Committee will seek your submission, and will provide you with the opportunity to present verbally if you wish. Depending upon the report of the Investigating Committee a Disciplinary Committee may be convened which will decide any penalty.

There is no cost to making the complaint in this process although in the event that you consider you require legal assistance or want to appear in person at a hearing it will be your responsibility to bear those costs.

Depending upon the outcome of the disciplinary hearing, the Institution has a number of penalties it can apply. One of these is a fine that can be directed towards covering the costs of the complainant (you). However the Institution does not have the power to award a penalty that includes recovery of losses made by the Complainant.