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Support => Fellow Practitioners Update => Legal matters Q and A => Topic started by: newguy on May 12, 2011, 04:08:49 PM

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Title: Who is responsible?
Post by: newguy on May 12, 2011, 04:08:49 PM
Hi everyone,

I thought I would bring this case forward and share it with you. Every plumbing / gas fitting business owner should be aware and very careful of this!

Today I received a letter from the plumbing board. The letter states that I am being persecuted under section 100 of the PGD Act 2006.

Let me explain...

July last year I subcontracted a craftsman plumber to help with the workload. In this instance it was relocating an existing Hot Water cylinder from one location to another. Everything was consented and so an inspection took place. The inspection failed because the overflow pipe (from the relief valves) didn't have enough fall and because there was no air break ( I have attached images for you to look at).

In this case the client decided to write a complaint to the PGDB about the matter, (this job was very complicated as we were also subcontracting to another firm and so there are other issues I wont bring up as it has nothing to do with the prosecution at hand)

Subsequently there was an investigation and the investigator found reason for concern (the drain not having enough fall? :-X).   
Now 1 year later a prosecution is taking place.

I immediately called the board to ask why I was being prosecuted and not the craftsman plumber that did the job? the answer I got was even though a craftsman plumber did the job it was still the responsibility of my firm (the person licensed in the firm) to inspect the work and ensure it was done correctly and to the standard.

Excuse me?? !@#$%

I'm not sure what to say here, I didn't employ a laborer or a licensed plumber, I employed a craftsman plumber so I don't have to do exactly that!

Guys I could go on and on about how pissed off I am but I'm also willing to except that the fact that I could be mistaken here but does this mean that no one needs to answer for there mistakes anymore or be responsible for what they do except the Craftsman plumber that owns the company? No consequences?

Does anyone out there know about this? I would think not many, if you employ craftsman plumbers be aware that YOU are still going to hang if they make mistakes.

At this stage I don't believe there is a point fighting this, so I will agree to come to a quick resolution.  >:(

I look forward to any thoughts on this issue.
Title: Re: Who is responsible?
Post by: TS on May 12, 2011, 05:09:31 PM
I'll send you a personal message on this one, there's stuff I can't say on the public forum about this situation.
Title: Re: Who is responsible?
Post by: Plumber on May 12, 2011, 05:11:19 PM
What a waste of tax payers money.  :-[
Title: Re: Who is responsible?
Post by: robbo on May 12, 2011, 05:37:17 PM
hi newguy/guys, i was lead to understand that if there was a problem with our work in regards to regs, we would be given the opportunity to remedy it.Only after refusal to put it right would a prosecution take place, can anyone verify,cheers
Title: Re: Who is responsible?
Post by: TS on May 12, 2011, 05:59:26 PM
A few things first. If you are licensed as an individual certifying plumber than you do not have anyone supervising you therefore no one else can be held accountable. The guy who worked for you is responsible, not you.

If you hold an employer license however its different. I believe anyone working under you is your responsibility. Is this the case?



In regard to work complying with the regs please tell me they're not quoting the building code acceptable solutions. These are non mandatory. They can't quote any particular gradients or measurements against you. They can only use the wording of the actual clause or clauses. They are the only mandatory part. I saw them take action against a guy and they quoted requirements out of G13/AS1, a non mandatory document.

They should instead be comparing work to the intent of the building code and proving essentially that it is either unsafe or doesn't work.

If the relief drain can drain the TPR or CWEV without backing up and overflowing than technically it complies with the building code.

If you can prove you had a suitable alternative to the air break that will prevent the same issues that a air gap does, again it complies.

The acceptable solutions are only to be adhered to if you nominate them on your consent. There's nothing to stop you changing it and coming up with an alternative solution, subject to providing the necessary evidence of course.
Title: Re: Who is responsible?
Post by: TS on May 12, 2011, 06:08:51 PM
I actually can't see anything in the Act which allows the board to prosecute for sub standard plumbing unless it is work that endangers people.

The work done by the CP you engaged certainly doesn't look like it could lead to that.

Did the Council take any action?
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 06:11:51 PM
I too thought that if you employed a Certifying Plumber to undertaken this work then they are responsible.  YOU are responsible for ensuring that they are currently licensed and can legally undertake the work.  

We followed a person to a job that was illegal and worse UNSAFE and lodged a complaint with the PGDB - the person doing the gas work only held an exemption for plumbing - they had never been a gasfitter, licensed or otherwise and even their plumbing exemption was not current.  They had been employed by a contracting company who had got them off a temporary workforce company.

The exemption holder is being prosecuted for doing work as an unlicensed work, the contracting company has been written to on two counts 1. for advertrising they do gasfitting without a licensed gasfitter or a having a contract with a licensed gasfitter and the workforce company have a pending prosecution unless they can prove they have suitable supervision for alleged tradesmen that they hire out to unsuspecting companies.  The fault here is with the guy that did the work, the contracting company for not checking on the PGDB website that they guy they got sent had the appropriate licence and the workforce company for breaking every rule under the sun.

In your case it sounds like you did the right thing.  I wouldn't roll over so quickly - what exactly is the charge against you?
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 06:15:10 PM
Section 100 relates to Consideration of a Complaint by the Board and has two subparts both relation to having a hearing if the investigator reports that a complaint should be considered by the Board - do you have any more information on the charge itself?
Title: Re: Who is responsible?
Post by: TS on May 12, 2011, 06:24:27 PM
http://www.legislation.govt.nz/act/public/2006/0074/latest/DLM396778.html (http://www.legislation.govt.nz/act/public/2006/0074/latest/DLM396778.html)
Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 07:05:11 PM
Hi guys, thanks so much for all the answers! Please let me answer the questions one by one. First of all yes we rectified the problem to the inspectors satisfaction immediately. This time simply using a 40mm PVC pipe instead and discharged into a down pipe, he was happy with that.

I ensured that person was licensed and had a copy of the license.

At the time my uncle was the craftsman plumber and I was a licensed plumber, so the company was operating under my uncles ticket.

I will scan the letter and post here soon, I really appreciate all your help!

Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 07:08:44 PM
The board refers to a complaint made by the owner not council.
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 07:11:28 PM
Sounds to me like you have a good case to defend yourself.  Lawyers will suck the life blood out of you -but if you live in the Wellington area I might be able to private message you a good reasonable one who could perhaps help you.  Otherwise I wouldn't roll over too easily.  Sounds like you have done everything right as far as process goes.
Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 07:22:33 PM
Hi Guys I live in Auckland  :( I can tell you guys in Wellington are onto it! Wish they had an office in Auckland, why all the way to Wellington when everyone involved is in Auckland????  :-[ I have posted the letter keeping all names confidential, Note the board still refers to me as the installer even though I explained to them that someone else did the installation. I appreciate all the positive feedback but how do I move forward with this. I cant believe they are going through all this trouble because a drain didn't have enough fall! This is insane!!  :o
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 07:31:03 PM
I need to think some more on this, but obviously the invoice for the job went out under your name (hence the section ...did the work or charged for it etc.
Do you have any written contract or instructions for the craftsman plumber that did the job - and do you have an invoice FROM him/her for the work they did.  This will at least provide a chain of evidence as to WHO did the work.  As a craftsman/certifier that person carries the responsibility for being satisfied that the work has been carried out in accordance with the Act and all pertinent regulations.

TS may be of assistance here - I think he has a background with the Council and his comments regarding acceptable solutions and what is normative and informative also have a bearing.   I don't know any lawyers in Auckland, but as the hearing is in Wellington if you were looking to get a lawyer it might be cheaper to have a Wellington one as then you wouldn't have to pay for their travel and accommodation as well to defend it, unless you are considering defending it yourself.

I'll private message you the guy who has acted for my company on other matters.  I don't know if he would take this on as he is pretty honest and may say he doesn't have experience enough in this particular field, but he is a court barrister.  Anyway nothing ventured, nothing gained.  His hourly rate is reasonable and he is very honest. 
Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 07:39:36 PM
Hi Jaxcat, Thanks so much for the tips. Yes we invoiced the job and they only evidence I have is his time sheet stating time and address. I spoke the guy representing this case for the PGDB, actually very nice guy (Paul) and he was very helpful as well. After speaking to him I think a slap on the hand is better than making a big deal but then I though how could this affect me in the future, is it like points on my license with 100 I lose it? Im not very sure how to move forward with this.  :( between a rock and a hard place!
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 07:46:42 PM
Likely it is low level - in my opinion you'd be hugely unlikely to lose your licence.  The remedies open to them are:
a fine
a censure
publishing your name
ordering youto work under supervision
any and or all.

If you plead guilty with mitigating circumstances they will still convene the hearing, but will take into account the fact youplead guilty early. They still convene the hearing and fly in the discipline committee and you are still liable for a % of costs.
Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 07:48:19 PM
So im screwed either way, great!
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 07:54:46 PM
Well maybe not, I guess they could find in your favour if you put a statement of facts forward but don't attend.  They will need to know that you aren't going to attend - and they could find you not guilty.  Depends how good you are at writing letters and this is where some of your colleagues in Auckland might be able to come to your assistance.  Practitoners are generally too forthcoming about their skirmishes with the PGDB but if you could find anyone local who has been through the mill they might be able to assist you. 

Cost of coming from Auckland for a day or two with airfares and accommodation is pricey and therefore the costs might outweigh each other.  What pisses me off about this whole thing is that I believe lots of practitioners cop a guilty plea because it is probably cheaper.  This means that justice is truly only available for the rich.  Have you considered talking to the PGDB and seeing if they will hold the hearing in Auckland?  They held Paul Gee's case in Nelson.  Mind you - then you have costs for the PGDB's lawyers (and there are a gaggle of them) + the disciplinary committee flying to Auckland.  Don't get me wrong you aren't charged for all the costs, but I understand if found guilty a % of costs are apportioned.  I have a colleague who submitted a Summary of Facts instead of appearing and plead guilty with mitigating circumstances on installing a wrong gas type of applaince.  He got hit with a $5000 and $2500 costs.  No publication of name and no order to work under supervision.  They said they went light on him because he owned up straight away.  Your case sounds minor in comparison.  Don't want to ruin your day though.
Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 07:59:06 PM
Thanks Jaxcat you have been very helpful! The PGDB should employ guys like you!  :D
Title: Re: Who is responsible?
Post by: Jaxcat on May 12, 2011, 08:00:53 PM
Thanks now go and have a beer and try not to worry too much!
Title: Re: Who is responsible?
Post by: newguy on May 12, 2011, 08:02:10 PM
That's exactly what i'm going to do! Thanks again guys!
Title: Re: Who is responsible?
Post by: TS on May 12, 2011, 08:17:59 PM
Write to the board with this as your defence:

Provide a copy of the CP's timesheet showing his time on the job and secondly provide yours showing you did not work there. Assuming they don't accept that, this will work:

You were not guilty of a breach of a current enactment as they say. G12/AS1 is a non mandatory document that can be used to show compliance but is not the law. They have sighted this document as the 'enactment' you are in breach of.

Clause G12.3.8, which is mandatory, basically requires the HWC to be able to relieve excessive pressure(part a of G12.3.8) and limit temperatures to avoid flash steam production(G12.3.8 part b).
 
All there is to prove is that when the TPR was opened that the relief drain at its lesser grade allowed for the water to drain away faster than the KW rating of the heater could heat at. If it backed up and could not relieve the water fast enough then it does not comply with G12. If it works they have absolutely no case.

As an aside the work you've done to remedy the situation is more of an issue. PVC is not suitable for a relief drain and it should be to a readily visible location, not to a downpipe. Here's a blurb the DBH did following a few faults:

http://www.dbh.govt.nz/codewords-10-article-4 (http://www.dbh.govt.nz/codewords-10-article-4)

A bit on the non mandatory status of G12/AS1:

http://www.dbh.govt.nz/building-about-compliance (http://www.dbh.govt.nz/building-about-compliance)

Taken from that:

The Compliance Documents are not mandatory, but they are important because they are published and endorsed by the Department of Building and Housing

If you need a hand writing a letter I'd be happy to help, I love helping out the wrongfully accused.
Title: Re: Who is responsible?
Post by: TS on May 12, 2011, 08:20:56 PM
Didn't mean to put the sunglasses face up there. I guess I put a ) too close to a full stop.
Title: Re: Who is responsible?
Post by: Jaxcat on June 10, 2011, 07:00:05 PM
Hey NewGuy - how are you getting on with your problem with the PGDB?  Made any progress?
Title: Re: Who is responsible?
Post by: newguy on June 10, 2011, 08:36:17 PM
Hi Jaxcat, at the moment im trying to negotiate the matter with the PGDB. emailing their defender and hope to come to some sort of resolution. I will definitely keep you posted of the outcome. Sorry on the way out but will certainly post more soon. Have a great weekend!

Title: Re: Who is responsible?
Post by: robbo on June 10, 2011, 10:08:36 PM
hi guys/newguy/jax, what a complete mess,all because of what? if this sort of thing is going to happen under the new rules will anyone in their right mind want to stay in our trades,i hope you get out of it o.k.newguy but what a hassle. Perhaps it would be a good time for a couple of hundred tradesmen to turn up at the hearing and stage a protest,we cannot work under this sort of pressure,cheers
Title: Re: Who is responsible?
Post by: robbo on June 11, 2011, 11:01:57 PM
hi guys,newguy, how did the pgdb become involved? was it the council inspector that advised the client to make a complaint? this seems very strange to me that things should get so far out of hand, it means that we could get pinged for every mistake we make and anyone who thinks they don`t make them are kidding themselves,cheers
Title: Re: Who is responsible?
Post by: newguy on June 12, 2011, 10:19:55 AM
To keep a long story short, We were employed by a company (cant say the name at this stage) that didn't pay us what they owed. So we refused to provide producer statements. Subsequently they went to theses clients blaming us for all the trouble they had with getting final CCC and encouraged them to complain to the board. We did many jobs for this company towards the end we refused to continue working for them due to all the problems we encountered with the product they were promoting. So as you can see this is a very complicated case because so many people are involved. I'm very annoyed about the fact the people can take advantage of the way the system works to satisfy their own agenda! I'm confident 100's of hours have already been spent because a pipe overflowed, we rectified the problem 5 hours after inspection but all this does not matter now, I just want to get this behind me.
Title: Re: Who is responsible?
Post by: newguy on December 21, 2011, 06:25:09 PM
Hi Guys, just an update. Got fined 2K and must sit a HWC course. They setup a payment plan for me so I can buy x-mas presents for my kids. Thank you so much PGDB and happy holidays
Title: Re: Who is responsible?
Post by: integrated on December 21, 2011, 06:57:33 PM
Got fined 2K and must sit a HWC course.


this country along with its bureaucracy, middle men and paper pushers really is an absolute joke!!




sorry to hear how shafted you have been, silver lining payment plan - and 18?? months to sort out?
Title: Re: Who is responsible?
Post by: Jaxcat on December 21, 2011, 07:10:45 PM
I have some questions New Guy -
1.  Did the certifying plumber get prosecuted?  And if so what was his/her outcome?
2.  Did you plead guilty in the end or did you fight the charge?
3.  Did they ask you to submit your financial status before the fine was handed down?

I note it has taken since May of this year for the whole thing to be resolved.  That's an awfully long time for someone to be under such stress - did this get mentioned at the hearing, and did the hearing take place in Auckland or Wellington in the end?  After going through the process did you feel you had a real opportunity to explain the situation or did a lawyer do the talking for you?  How fairly do you think you were treated?  What will the decision mean for you - i.e. do you think the attendance at a HWC install course will be of any help?
Title: Re: Who is responsible?
Post by: newguy on December 21, 2011, 08:31:43 PM
In the end I threw the towel in, this year has been a bad financial year as it is and didn't want to spend more with lawyers as I knew they would fine me in the end anyway. It turns out that even if your a certifying plumber it doesn't matter the owner of the business is always liable and not the CP that did the job if he was subcontracted. Lesson learned. So he was not persecuted.

This was over 2 years ago so yes it has taken very long! I don't see the point in the coarse total waste of time!! and knowing how the system works i bet there isn't even CPD points. I think the board was friendly during the process they did help me through and it almost felt like they felt bad about it but had to proceed.

I'm almost confident that I will not re register next year and persue a different carrier path. Its to much to deal with. In the end its just work, we work to feed our families. The economy is in free fall, competition is growing, margins are dropping and then the PGDB and councils make things even more complicated and harder. I understand that they want a safer and healthier NZ but looking at how things are managed and operated makes me cry inside. It not like we don't already have enough to deal with. This year I have not done 1 CDP. I simply couldn't find the time. What do they expect?? I'm over it.

Title: Re: Who is responsible?
Post by: Jaxcat on December 21, 2011, 08:38:16 PM
Hey New Guy
What would happen if the owner of the business was not a licensed person what would they do?  Say the owner was not a plumber, but employed licensed practitioners and then subcontracted out to another certifier becasue, say they were too busy to do all the work.  That would be an interesting scenario, then surely the Certifer who did the work would HAVE to be responsible as the owner of the business was not a licensed person.

I still don't quite understand how any certifier is not responsible for their work (providing proof is available to show the certifier did do the work).  Makes a mockery of the whole thing.
Title: Re: Who is responsible?
Post by: newguy on December 21, 2011, 08:56:51 PM
It sure does, I asked the same question and unfortunately that's how it is. The owner does not have to be a CP but must employ a CP to inspect the work the subcontracted CP does. Funny ain't it?? The board also explained that its the owners responsibility to ensure that the CP employed to do the job also does it, for example if I told the CP to go to job2 instead of job1 for inspection and something happens then again the owner is responsible. So if you employ a LP every job must be inspected by a CP and if something happens then the owners head rolls not the CP or LP. This is my understanding from the board.

Your scenario is very interesting, in that case the owner would have to insist on a PS3 to prove the sub contracted CP is taking responsibility. Maybe I should get the guys to sign a disclaimer for every job they do  . Im not sure how you guys inspect all the jobs or if you do at all, isnt that why a LP went to school for 3 years? Dont you think that someone qualified should take responsibilty for the work they do? Including a CP?
Title: Re: Who is responsible?
Post by: Jaxcat on December 21, 2011, 09:19:18 PM
I agree - we have several certifiers, but I was interested in the scenario of a business person owning the company and employing certifiers and then subcontracting another certifier.  For instance we have certifiers of all disciplines, but from time to time we subcontract to another certifying drainlayer.  The PS3 thing is interesting, some councils require a tradesperson to sign the PS3, others are happy for the "owner of the business" which could be an accountant, manager etc to sign.  Very interesting and a lesson to learn all around. 
Title: Re: Who is responsible?
Post by: TS on December 21, 2011, 10:04:11 PM
Write to the board with this as your defence:

Provide a copy of the CP's timesheet showing his time on the job and secondly provide yours showing you did not work there. Assuming they don't accept that, this will work:

You were not guilty of a breach of a current enactment as they say. G12/AS1 is a non mandatory document that can be used to show compliance but is not the law. They have sighted this document as the 'enactment' you are in breach of.

Clause G12.3.8, which is mandatory, basically requires the HWC to be able to relieve excessive pressure(part a of G12.3.8) and limit temperatures to avoid flash steam production(G12.3.8 part b).
 
All there is to prove is that when the TPR was opened that the relief drain at its lesser grade allowed for the water to drain away faster than the KW rating of the heater could heat at. If it backed up and could not relieve the water fast enough then it does not comply with G12. If it works they have absolutely no case.

As an aside the work you've done to remedy the situation is more of an issue. PVC is not suitable for a relief drain and it should be to a readily visible location, not to a downpipe. Here's a blurb the DBH did following a few faults:

http://www.dbh.govt.nz/codewords-10-article-4 (http://www.dbh.govt.nz/codewords-10-article-4)

A bit on the non mandatory status of G12/AS1:

http://www.dbh.govt.nz/building-about-compliance (http://www.dbh.govt.nz/building-about-compliance)

Taken from that:

The Compliance Documents are not mandatory, but they are important because they are published and endorsed by the Department of Building and Housing

If you need a hand writing a letter I'd be happy to help, I love helping out the wrongfully accused.

If you used the above you couldn't be found guilty. I'd be well and truly appealing this one! They are wrong!