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April 2024

First Code of Ethics complaint upheld

25 Mar 2024, Industry Updates, News

Since 25 October 2022, the Code of Ethics for Licensed Building Practitioners has been enforceable by the Building Practitioners Board. However, since then, only one of 49 complaints – detailed below – has been upheld 

While this might seem surprising, the answers lie in the detail of recent Building Practitioners Board (the Board) decisions – while some were dismissed, others were elevated to a higher disciplinary ground.

Disrepute trumps code

There are 10 disciplinary grounds for a complaint against a Licensed Building Practitioner (LBP). Of these, breaching the Code of Ethics (CoE) is the newest addition. However, in recent decisions, the Board noted the crossover between breaching one of the CoE’s key principles – ‘Behave professionally’ – and an original disciplinary breach – ‘conducting oneself in a manner that brings, or is likely to bring, the regime under the Building Act for LBPs into disrepute’.

This led the Board to determine that one needed to be considered more serious than the other, and that a breach of the CoE could only result in one disciplinary finding – breaching the CoE or bringing the scheme into disrepute.

The latter was deemed to be the more serious, with both decisions highlighted in the two recent Board reports – BPB CB26224 and Horisk BPB CB26185:

“The Board now needs to decide whether a finding of a breach of the Code suffices, or whether the conduct is such that it warrants the more serious finding of disrepute. In this respect, the Board has formed the view that a finding of a breach of the Code can lead to a disciplinary finding of disrepute, but that only one disciplinary finding should be made and that there is a hierarchy to the disciplinary provisions, with disrepute being the more serious.”

An exception to the rule

However, the first upheld CoE complaint – Horisk BPB CB26185 – which was published in January 2024, did name both disciplinary grounds. According to Duncan Connor, National Manager, Occupational Regulation at MBIE, this is because the case was separated into two categories, with a disciplinary ground for each.

“It appears that the conduct addressed in CB26185 was separated into two categories, with the Board upholding a breach in the Code of Ethics for category one and Disrepute for category two. No same conduct has been upheld under more than one ground.”

According to the report, the first category related to the statements Horisk made to the Complainant and others about the amount outstanding to his company, demands for payment and an underlying threat to the Complainant that the Respondent was “coming now”. The second category related to personal insults to the Complainant expressed both to him and to the real estate agents.

However, despite the conduct falling into two categories, the breach of the CoE and disreputable conduct were treated as a single offence in considering penalty due to them being “integrally connected”.

The background story

According to the report, Horisk completed work on the Complainant’s property in October 2022. The Complainant refused to pay the final invoice in the sum of approximately $16,000. The Complainant said he would pay the balance due after the Council had inspected the work, but that inspection identified some concerns, and, at the date of the hearing, payment had not been made. 

Between October 2022 and August 2023, Horisk emailed and sent texts to the Complainant, demanding payment, which were expressed in abusive and threatening terms.

He also sent communications to other people including the real estate agents trying to sell the property and posted publicly on the property listing. After six months, the Complainant complained to the police and a harassment notice was issued to Horisk, after which there was no further contact.

Horisk did not attend the hearing but provided two written responses, suggesting the Complainant was happy with the work until he received the invoice and wanted to get out of paying it. However, he did not provide proof of this – despite saying he would – and did not address the specific allegations of the breach of the CoE or disrepute, nor did he make any comment on the texts, emails, and website statements the Complainant had highlighted.

The Board found that Horisk’s actions were designed to harass the Complainant. As such, there had been breaches of the CoE.

The Board ordered Horisk to attend specified training within six months of the date of the decision. If he fails to do so, his licence will be suspended for 12 months or to the date he completes the required training, whichever is earlier.

The Board also ordered that Horisk pay costs of $3,500.

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