BUILDING SERVICES BOARD and MORTON
[2021] WASAT 129
•22 SEPTEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (REGISTRATION) ACT 2011 (WA)
CITATION: BUILDING SERVICES BOARD and MORTON [2021] WASAT 129
MEMBER: DR B DE VILLIERS, MEMBER
MS N OWEN-CONWAY, MEMBER
MR R WOODFORDE, SESSIONAL MEMBER
HEARD: 28 JULY 2021
DELIVERED : 22 SEPTEMBER 2021
FILE NO/S: CC 53 of 2021
BETWEEN: BUILDING SERVICES BOARD
Applicant
AND
GORDON MALCOLM MORTON
Respondent
Catchwords:
Nominated supervisor - Duties and functions of nominated supervisor - Disciplinary proceeding - Registered building service contractor - Registered building service provider - Registered building practitioner - Failure to discharge duties as nominated supervisor
Legislation:
Building Services (Registration) Act 2011 (WA), s 3, s 5, s 7, s 17, s 18, s 18(1)(d), s 21, s 21(1), s 22, s 56(2)(c), s 56(2)(e), s 58
Building Services (Registration) Regulations 2011 (WA)
State Administrative Tribunal Act 2004 (WA), s 9(c), s 11(4), s 32(4)
Result:
Respondent reprimanded
Registration of respondent as registered building service practitioner cancelled with immediate effect
Respondent fined in the amount of $10,000
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | Department of Mines, Industry Regulation And Safety – Consumer Protection Division (in house legal counsel) |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Issue
The issue for determination is whether disciplinary action should be taken against the respondent for allegedly failing to properly discharge his duties as a nominated supervisor for M3 Building and Construction Pty Ltd (M3), and if so, what the nature of the disciplinary action should be.
Background
The respondent is a registered building service practitioner. He was employed by M3 as a nominated supervisor. M3 undertook home building work for various clients as a registered building service contractor. The period of the respondent's employment with M3 was from 23 June 2014 to 16 January 2015 (relevant period). In his capacity as nominated supervisor the respondent was required to manage and supervise the completion and delivery of all current and new building services undertaken by M3.
The applicant alleges that the respondent failed to perform his duties as a nominated supervisor, or even if he had attempted to perform the duties, that he had not properly discharged those duties.
It is notable that there is no statutory definition, other statutory description, policy statement or explanation of duties and responsibilities of a nominated supervisor. It is however accepted by the parties and expert witnesses that the exact nature, scope and extent of duties of a nominated supervisor depends on the specific projects for which they are responsible. In broad terms the nominated supervisor must ensure that projects are completed in a safe and timely manner, whilst complying with contractual, legislative and local government requirements.
The contract appointing the respondent as nominated supervisor did not contain a list or description of projects that were in progress, being negotiated or planned by M3. A list of projects was provided to the respondent in September 2014 but was incomplete. Another list was provided to the respondent in December 2014. The respondent resigned as nominated supervisor after approximately seven months of employment as he was concerned about M3 not being transparent with him about the full scope and number of its building services.
After the respondent had left M3, several complaints were lodged by clients about workmanship issues arising from houses that fell within the supervisory responsibilities of the respondent during the relevant period.
In its investigation of those complaints, the applicant formed the view that the respondent may not have properly discharged his functions as a nominated supervisor. The applicant says that during the appointment of the respondent as nominated supervisor, M3 had 20 residential building projects under way. The applicant alleges that the respondent failed to properly discharge the duties of nominated supervisor for all those projects, and even if he had attempted to perform the duties for the 10 to 12 projects about which he says he was aware, he ultimately had not properly discharged his duties.
The respondent denies the allegations and says that he did perform his duties as nominated supervisor in regard to the 10 to 12 projects that were disclosed to him and that he was unable to perform his duties for the eight other projects as M3 had not made him aware of those projects.
The material filed by the parties was collated into two bundles and accepted into evidence. When reference is made to a particular bundle, the bundle number and page number are provided, for example, Bundle 2: page 60. If reference is made to a specific paragraph the number follows the page, for example, Bundle 2: page 60 para 4.
Statutory framework
The proceeding is commenced pursuant to s 56(2)(c) and s 56(2)(e) of the Building Services (Registration) Act 2011 (WA) (BSR Act) whereby the applicant has referred a complaint against a registered building service provider to the Building Commissioner for investigation and lodged a complaint with the Tribunal.
Jurisdiction
If the Tribunal is satisfied that a cause of disciplinary action exists, the jurisdiction of the Tribunal is set out as follows by s 58 of the BSR Act.
(1)If, in a proceeding commenced by an allegation under this Act, the State Administrative Tribunal is satisfied that a disciplinary matter exists in respect of a registered building service provider, the Tribunal may do one or more of the following
(a)decline to make an order under this section;
(b)order the Board to amend the registration of the provider;
(c)caution or reprimand the provider;
(d)impose a condition on the registration of the provider, or amend an existing condition;
(e)where the provider is a building service practitioner, order that the provider undertake and complete a specified further course of training or education;
(f)where the provider is a building service contractor, order that a nominated supervisor of the provider undertake and complete a specified further course of training or education;
(g)order that the registration of the provider be suspended for a period, not exceeding 2 years, specified in the order;
(h)order that the provider's registration be cancelled and name be removed from the register;
(i)if the Tribunal makes its finding on a ground referred to in section 53(1)(c) to (m), order that the provider pay to the Building Commissioner a penalty of a fine not exceeding $25 000.
(2)An order referred to in subsection (1)(g) or (h) may be in relation to a provider's registration generally or in relation to registration in a class or classes of building service practitioner or building service contractor specified in the order.
(3)If, in a proceeding commenced by an allegation under this Act against a person who was a registered building service provider when the disciplinary matter allegedly occurred but who is no longer a registered building service provider, the State Administrative Tribunal is of the opinion that a disciplinary matter exists in respect of the person, the only powers that the Tribunal may exercise are the powers in subsection (1)(a), (c) and (i).
It is agreed that the respondent was at the time of the hearing a registered building service practitioner within the meaning of s 3 and s 17 of the BSR Act, operating under registration number 5981.
Registered building service provider
Section 3 of the BSR Act provides as follows:
registered building service provider means either of the following
(a)a building service practitioner;
(b)a building service contractor;
It is agreed that the respondent is a registered building service provider since he is a building service practitioner.
M3 being a building service contractor
It is agreed that M3 is a building service contractor pursuant to s 21 of the BSR Act and that it could perform the duties of a registered building service provider. Section 3 of the BSR Act provides that a building service contractor is a person registered under s 18 of the BSR Act and we are satisfied that M3 did during the relevant period meet the statutory requirement. A building service contractor may have more than one nominated supervisor: (s 18(1)(d) of the BSR Act).
Definition of a nominated supervisor
Section 21(1) of the BSR Act refers to a 'nominated supervisor' but the BSR Act does not define the term or provide a description of duties. We were not provided with any official material, be it in the form of a statutory instrument, policy document, or a publicly accessible brochure about the definition, role or duties of a nominated supervisor. The expert witnesses agree that the exact nature, scope and extent of duties for a nominated supervisor depend on the specific projects for which he or she are responsible, but they agree that in general the nominated supervisor must ensure that all projects are completed in a safe and timely manner, whilst complying with contractual, legislative and local government requirements.
Respondent being the nominated supervisor for M3
It is agreed that the respondent during the relevant period was the nominated supervisor for M3. There was no other nominated supervisor for M3 during the relevant period.
The BSR Act provides as follows about the nominated supervisor:
21.Nominated supervisor for building service contractor
(1)In this section
eligible person, in relation to a class of building service contractor, means a person who is a registered building service practitioner in a class of building service practitioner prescribed by the regulations for that class of contractor.
(2)A building service contractor who is an individual
(a)must be an eligible person for each class of building service contractor in which the contractor is registered; and
(b)is the nominated supervisor for each class of building service contractor in which the contractor is registered.
(3)A nominated supervisor for a building service contractor that is a body is an officer or employee of the contractor who is
(a)an eligible person for a class of building service contractor in which the contractor is registered; and
(b)nominated by the contractor, by notice in writing to the Board, as a supervisor for the contractor for that class of building service contractor.
(4)A nomination referred to in subsection (3)(b) may be revoked or varied by the building service contractor by notice in writing given to the Board.
Effect of carrying out a prescribed building service when not registered
Section 7 of the BSR Act sets out the consequences if a person who is not registered as a building services provider carries out a prescribed building service.
Carrying out prescribed building service when not registered
(1)A person must not carry out, or undertake to carry out, a prescribed building service for any other person unless the person is a building service contractor entitled under section 11 to carry out that building service.
Penalty: a fine of $25 000[.]
Effect of a building service contractor not having a nominated supervisor
Section 22 of the BSR Act sets out the consequences of a building service contractor not having a nominated supervisor to oversee the management and delivery of its building services.
Effect of not having nominated supervisor
(1)In this section
relevant building service, in relation to a class of building service contractor, means a prescribed building service that a contractor registered in that class of contractor is entitled to carry out.
(2)A building service contractor registered in a class of building service contractor must not carry out, or undertake to carry out, a relevant building service during any period in which the contractor does not have a nominated supervisor for that class of building service contractor.
Penalty: a fine of $25 000.
(3)A building service contractor must give the Board written notice if the contractor ceases to have a nominated supervisor for a class of building service contractor in which the contractor is registered.
Penalty: a fine of $10 000.
(4)The notice referred to in subsection (3) must be given to the Board no later than 7 days after the contractor ceases to have a nominated supervisor.
Constitution of the Tribunal
The Tribunal was constituted pursuant to s 11(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Agreed facts
The following facts are agreed between the parties:
1)The respondent as nominated supervisor was responsible for all ongoing and newly undertaken building works of M3 during the relevant period.
2)The respondent was during the relevant period and at the time of the hearing a registered building service practitioner and contractor. He was first registered on 20 August 1981 with registration No 5981.
3)The respondent was the only nominated supervisor for M3 during the relevant period.
4)M3 by letter of 10 June 2014 informed the applicant that the respondent was to be its nominated supervisor for the building services it provided. The respondent signed the Change of Nominated Supervisor form that was attached to the letter (Bundle 2: pages 8-9).
5)M3 and the respondent entered a contract of employment dated 6 June 2014. The contract provided, inter alia, that the respondent was to be engaged as a 'Construction Manager' for 8-10 hours per week for renumeration of $2,500 per month (Bundle 2: pages 10-13).
6)Although the contract indicated that the duties of the respondent were outlined in an 'attached position description', there was no attachment to the contract.
7)There was no schedule of works or list of houses being built attached to the contract. M3 did not give to the respondent a list of current projects until several months after the contract had been terminated.
8)The first time a list of building projects was given to the respondent was around September 2014. The list was not complete. A more detailed list of building works was given to the respondent around December 2014.
9)The respondent did make some enquiries from the time he entered into the contract to clarify with M3 the projects being worked on.
10)The responsibility for daytoday management and supervision of building works and sites was in practice exercised by the directors of M3, Mr Steward Martincic and Mr Marc Marusco (directors). The respondent oversaw and controlled the works of Mr Glynn Wootton, who was the building site supervisor during the relevant period. Neither Mr Martincic nor Mr Wootton was a registered building service practitioner. Neither Mr Martincic nor Mr Wootton reported to the respondent.
11)The respondent had not during the relevant period met with Mr Wootton. He did not manage or supervise Mr Wootton. Mr Wootton did not report to the respondent and the respondent did not visit any building sites where Mr Wootton was present.
12)The respondent informed the applicant on 19 January 2015 that he had resigned from employment at M3 effective on 16 January 2015 (Bundle 2: page 14).
Questions arising for determination
Several questions arise from the proceeding and we shall determine those before we consider the primary issue. Those questions are identified below. In addressing the questions, we shall also make findings of fact and give reasons for each finding.
What are the practical functions of a nominated supervisor?
As explained above, neither the BSR Act, the Building Services (Registration) Regulations 2011 (WA) or any policy document issued by the applicant provides a definition or a detailed description of the role, functions or duties of a nominated supervisor. The applicant, respondent and expert witnesses agree that as a general proposition a nominated supervisor must ensure that projects are completed in a safe and timely manner whilst complying with contractual, legislative and local government requirements. Depending on the organisational size, structure and scope of works of the building services contractor, the nominated supervisor may discharge all duties directly himself or herself or he or she have may other employees as site managers who assist, provided of course that those assistants are properly supervised by the nominated supervisor. If others are assisting, it remains the responsibility of the nominated supervisor to manage those persons in a manner that complies with the BSR Act. The nominated supervisor may therefore delegate some responsibilities to site supervisors, but the accountability for oversight and compliance for the building services pursuant to the BSR Act remains with the nominated supervisor.
Since the Tribunal 'may inform itself on any matter as it sees fit' (s 32(4) of the SAT Act) and 'make appropriate use of the knowledge and experience' of Tribunal members (s 9(c) of the SAT Act), we provided to the parties and expert witnesses for their comment, criticism and assessment a list of what we see as 'typical duties' of a nominated supervisor. These duties were specifically identified by Sessional Member Robert Woodforde who is a registered builder with some 40 years' building experience. The proposed List of Typical Duties of a Nominated Supervisor (List) was handed to the parties at the commencement of the hearing and they were given ample time to read and reflect on it. When the respondent and expert witnesses were called to give evidence, we invited each of them to respond to the List, to comment thereon, and to agree or disagree with the content thereof. The applicant, respondent, parties and expert witnesses agree that the role, functions and duties of a nominated supervisor are generally speaking, consistent with the List, provided of course that the exact nature of duties will depend on the circumstances of a specific appointment.
The List provided to the parties and expert witnesses set out the duties and responsibilities of a nominated supervisor as follows:
Typical Duties Nominated Supervisor
Position Statement
Management and control to ensure that projects are carried out in an orderly, cost effective and efficient manner and in accordance with the contract, drawings and specifications whilst meeting requirements for quality, safety, environment, legislation and budget.
Duties
•Provide support to Site staff.
•To discuss and liaise with other staff, on site labour and other requirements to ensure that there is proper co-ordination of trades on multiple sites and from project to project.
•Ensure that work proceeds according to schedules and take action where required to maintain target dates.
•Co-ordinate subcontractors and ensure site ready for their trade by scheduled start date.
•Provide solutions for day to day queries raised.
•Attend and contribute to site meetings.
•Maintain Site Diaries
•Ensure that activities comply with the Building Licence/Approval, Contract Documents and the quality requirements of the contract, including relevant Building Codes and Australian Standards.
•Ensure that all personnel have access to information, on-site training, and sufficient materials and equipment to enable completion of the contract in accordance with the Contract Specifications.
•Ensure that the latest revisions of drawings and schedules are in use.
•Report all accidents on site and forward accident report forms to Senior Management.
•Maintain sites in a safe working condition and comply with Company policy in relation to safety and also all Safety Legislation.
•Conduct Safety inspections/Audits or arrange for these to be done and then act upon them.
•To ensure that Builder's Sign and any other necessary signs are prominently, properly erected and kept clean at all times.
We find that the duties contained in this List are, in general, consistent with the duties identified by the applicant in para 6 of its Grounds for Orders Sought: (Bundle 1: page 9). The duties contained in the List and listed duties in the Grounds for Orders Sought are also consistent with the list of duties set out in the Outline of Evidence of Mr Ian Ronald Aitken: (Bundle 1: page 173). Mr Aitken is a Principal Building Inspector with the Department of Mines, Industry, Regulation and Safety: Division Building and Energy with some 43 years' experience in the building industry. Mr David Streeton, a Senior Investigator at the Department of Mines, Industry, Regulation and Safety: Division Building and Energy, also agreed with the content of the List and so did the respondent.
We therefore adopt, for purposes of this hearing, the List to assess the obligations of the respondent and his compliance thereof during the relevant period.
Is a construction manager the same as a nominated supervisor?
In the contract of appointment, the respondent is described as a 'Construction Manager' (Bundle 2: page 10 - para 4). In the document entitled Change of Nominated Supervisor the respondent is also described as a 'Construction Manager' (Bundle 2: page 9), albeit that in the covering letter to the Building Commission Licensing (Bundle 2: page 8), the respondent is described as a nominated supervisor.
The question is, is if the use of these different terms relevant to this proceeding?
Neither of the parties made any submission of substance about the use of the different terms.
We do not find that the different terms used by the parties is a relevant consideration since –
i)the respondent accepts that he was appointed to perform the duties of a nominated supervisor during the relevant period;
ii)the respondent did not in his evidence seek to distinguish between the duties of a nominated supervisor and a construction manager;
iii)the Change of nominated supervisor form sent by M3 to the applicant confirms that the respondent was to be the nominated supervisor;
iv)the BSR Act does not make mention of a regulated function of a construction manager;
v)a site supervisor and construction manager are not statutorily regulated functions, whilst a project cannot proceed without a nominated supervisor; and
vi)the substance of the respondent's duties must be ascertained and not the wording of a position. The respondent does not deny that the substance of his employment was consistent with those of a nominated supervisor.
We therefore find that regardless of the use of the words construction manager, the respondent was appointed as the nominated supervisor of M3.
Did the respondent display appropriate caution as expected of a nominated supervisor when he entered into the employment contract with M3?
The employment contract makes mention of the duties of the respondent to be outlined in an attachment to the contract: (Bundle 2: page 10 - para 4). There was no attachment enclosed. The respondent was also not given at the time of him entering into the contract, a list of existing projects of M3.
The applicant says it was incumbent on the respondent to have ascertained with greater certainty the number of projects for which he had to take supervision, to obtain copies of the approved plans of the projects, any special conditions to be met, the location of the projects, the status of the projects and any other relevant information related to the projects. Mr Streeton says that prior to entering into the employment contract, the respondent should have familiarised himself with the nature and scope of his duties as the nominated supervisor for M3. Unless and until he had obtained full disclosure from M3, the respondent could not have reasonably made an assessment of the time to be allocated or the remuneration to be paid in light of the duties of a nominated supervisor. Mr Aitken says that the position with M3 was more likely to be of a full-time rather than part-time nature. In the absence of full disclosure by M3, the respondent should not have entered into the contract.
The respondent says that although the 'position description' was not enclosed with the employment contract and regardless that a list of projects was not provided to him prior to or shortly after him entering into the contract, he acted properly as would be expected of a nominated supervisor when he negotiated and entered into the contract. The respondent says that he had been given a list of projects around September 2014 and an additional list around December 2014. He says from the date of his appointment he had consistently sought more and complete detail from M3 about its projects. The respondent also says that he regularly visited the offices of M3, that the atmosphere at the office was pleasant and jovial, that he was satisfied that there was nothing untoward taking place, that he visited some building sites and that the company was functioning well. In conclusion, he says that a registered building service contractor should be under a statutory obligation to disclose all projects to a nominated supervisor: (Bundle 1: page 351).
Expert witnesses Mr Aitken and Mr Streeton both emphasised the importance for a nominated supervisor to ascertain the scope of work for which her or she will be responsible prior to entering into an employment contract in order to determine with fair accuracy the time and cost for his or her time. Mr Aitken says that in light of the publicly available information about M3, it should have been obvious to the respondent that the time allocated to him was insufficient to properly discharge his duties as a nominated supervisor: (Bundle 1: page 175 para 16). Mr Streeton also says in oral evidence that the respondent should have informed himself better or he should have demanded more information about the current projects of M3 before he agreed to a parttime role. Mr Streeton says that as of the first day of employment the respondent should have been aware of the projects under way and if the information was not already in the contract a competent nominated supervisor would have insisted on full and immediate disclosure or otherwise would have terminated the contract. Mr Streeton concludes that the respondent did not ask enough questions and did not inform himself adequately prior to taking on the position.
We concur with the applicant and expert witnesses Mr Aitken and Mr Streeton. We find that the respondent did not display the caution and diligence that are expected of a nominated supervisor when he negotiated and entered into the contract with M3. We find so for the following reasons:
•The term 'Construction Manager' used in the contract was not appropriate terminology in light of the duties expected of the respondent and him being recorded as nominated supervisor by M3 to the applicant. The respondent should have ensured that the term used was that of nominated supervisor since that describes more accurately what was required pursuant to the BSR Act for purposes of the projects to lawfully continue. We accept that in practice, different words may be used by builders to describe particular functions. But in its communications with the applicant both M3 and the respondent knew the respondent was to be the statutory required nominated supervisor.
•The respondent should have insisted on a complete list of projects that were being undertaken by M3 to be given to him at best prior to entering into the contract or at the latest immediately at his commencement of duties. Ideally, the respondent should have obtained the list of projects prior to him entering into the contract or he should at least have ensured that the list of projects was part of the contract or provided to him at the same time when he entered into the contract. In light of the failure by M3 to disclose, the respondent should either have not entered into the contract or should have terminated his services immediately. We agree with Mr Aitken and Mr Streeton that a competent nominated supervisor would not enter into a contract for part-time services without knowing the nature and extent of the building works of the employer and the duties to be discharged by the nominated supervisor.
•The respondent should have ensured that in his daytoday interaction with M3, the necessary supervisory processes were in place for him to be made aware of all new projects to be undertaken by M3. The respondent's sporadic attendance of the office of M3 with no specific agenda; no notes arising from the meetings; and no follow-up to be undertaken fall substantially short of what would be expected of a nominated supervisor.
•The respondent should have ensured that the position description as foreshadowed by the contract was indeed attached to the contract. The respondent was at best reckless by entering into the contract without the position description attached or at worst he was aware of it not being attached and nevertheless entered into the contract knowing that his licence could be relied upon by M3 but without him being the effective nominated supervisor.
•The respondent should have been aware that 8 to 10 hours per week was not adequate for a nominated supervisor to properly discharge his duties in a company where multiple projects were being undertaken. The respondent says that he knew the applicant had around 10 to 12 projects under way albeit that he had not received the details of the projects. We agree with Mr Aitken and Mr Streeton that the time allotted in the contract is not commensurate with the list for 10 to 12 projects.
•The respondent should have been alerted by several 'red lights' prior to him entering into the contract since a competent nominated supervisor would ensure that the exact nature of his duties and the scope of projects for which he is responsible, are clearly stipulated.
•Although we note that there is a risk of a registered building service contractor not providing to a nominated supervisor a full list of projects, in this matter the respondent failed to take the precautions that would be reasonably expected to be taken by a nominated supervisor.
We find that the respondent did not display the caution that would be expected of a nominated supervisor when he entered into the contract with M3. We further find that the respondent failed to demonstrate insight during the hearing of the shortcomings of his conduct, he showed no remorse about his failure to take appropriate action and he showed what can only be described as a reckless disregard to the duties of a nominated supervisor. The statement by the respondent that the proceeding in the Tribunal is based on 'tiny scraps of information' (Bundle 1: page 53) highlights his total lack of insight or remorse.
When did M3 give a list of projects to the respondent?
It is not apparent from the evidence when, if at all, the respondent became aware of the full range of projects being undertaken by M3.
The applicant says that the respondent only received a list of projects, albeit not complete, around December 2014. If this is correct it would mean that the respondent was supposed to discharge his duties as nominated supervisor for close to six months without knowing the scope of projects for which he was responsible. The applicant further says that even if M3 had deliberately kept the respondent in the dark about the full scope of projects, then he should have terminated the contract since there were many 'red lights' to forewarn him that information was being withheld and that he ought to have seen the signs that the full scope of projects was not disclosed to him. The respondent was either aware or should have been aware that building projects were taking place by M3 relying on his employment as a nominated supervisor, but without him being told of the projects and without him discharging the actual functions of a nominated supervisor in regard to those projects.
The respondent says that M3 told him about some projects after he commenced employment, but he did not receive a formal list of projects or any detailed plans or specifications for projects. He says he knew M3 was involved in 10 to 12 projects. The respondent further says that although M3 gave him access in September 2014 to a dropbox where he could be updated on existing and new projects, the dropbox turned out to be inactive or incomplete: (Bundle 2: pages 386-389). The respondent says he was therefore never fully aware of the projects being undertaken by M3. The respondent accepts that although the first written list of projects was only given to him on 22 December 2014, (Bundle 2: page 150) he had been told orally prior to that time what the current projects were. He says he took reasonable steps to enquire about projects, regularly attended the office, attended some projects with Mr Martincic and he was satisfied that there was nothing untoward taking place.
We find that the respondent did not at any stage of the relevant period demand as a competent nominated supervisor would or receive as a competent nominated supervisor would, a complete list of projects being undertaken by M3; that although he knew M3 had 10 to 12 projects underway he never demanded nor received the required details in regard to those projects to properly discharge his functions; that the only list of projects he had received was around 22 December 2014 some six months after he had commenced employment; and that he did not immediately pre-contract or soon after entering into the contract, take the necessary precautionary actions that would be expected of a competent nominated supervisor to ascertain the actual projects being undertaken by M3. We find so for the following reasons:
•There was no list of projects included to the contract of employment. This omission should have raised 'red flags' to the respondent because without being informed of the active projects a competent nominated supervisor would not be able to do an estimation of time and scope of duties expected of him.
•Although the respondent says he was told about projects and he visited some projects with Mr Martincic, there is inadequate documentary evidence of notes that he took in regard to projects, visitations to projects, site diaries for each build, site meetings, audits of sites, inspection of signage at sites, works to be done, recommendations, follow-up and the usual written record of what one would expect of a nominated supervisor.
•The respondent continued his employment for around six months without being in possession of the complete list of projects being undertaken. We accept that he had asked M3 about the scope of projects, but there is inadequate evidence to conclude that he took reasonable precautions and interventions as would be expected of a nominated supervisor to ascertain the actual projects being undertaken.
•The respondent in his own evidence admits that he had been employed for some time without knowing the exact scope of builds for which he was responsible as nominated supervisor. He says in his witness statement (Bundle 2: page 60) that he had 'requested a list of jobs' but that access to the dropbox was only given in September 2014 some three months after he commenced his duties. The dropbox turned out to be a 'dummy' and he only got access to the 'live' dropbox in late December 2014 some six months after he commenced his duties.
We find that although the respondent had been given the addresses of some projects undertaken by M3, he only received a complete list of the projects in December 2014. We further find that the respondent failed to demonstrate insight during the hearing of the shortcomings of his conduct; he showed no remorse about his failure to take appropriate action to ascertain the actual projects being undertaken; and he showed what can only be described as a reckless disregard for the duties of a nominated supervisor.
Was the respondent aware of the duties of a nominated supervisor?
The parties agree that the respondent has had many years' experience as a registered builder. The respondent says he completed more than 700 residential and 300 commercial projects: (Bundle 1: page 106). The respondent also says that he is an expert who often represents parties in disputes and he has appeared at the Tribunal as an expert witness: (Bundle 1: page 105). Mr Robert Johnson, previously general manager at Fortress Homes, gave evidence that the respondent had been the nominated supervisor for the company due to the respondent's 'depth of knowledge and years of experience in building methods and management': (Bundle 1: page 163). Mr Johnson says he regarded the respondent as a 'mentor'. Mr Johnson concurs that the List is a reasonable representation of the duties of a nominated supervisor. Mr Johnson says that a nominated supervisor must be 'hand-on' at each site since that person is ultimately responsible and accountable for all compliance. Mr Johnson further says that a nominated supervisor ought to keep a site diary for each site in which details of inspections are recorded. Even if there is a site supervisor, the nominated supervisor must regularly talk to the site supervisor, do detailed inspections and oversee key steps in the build process. He says a nominated supervisor would ordinarily visit each site three to five times per week.
The respondent says the role of a nominated supervisor has changed over the years: (Bundle 1: page 167). He says the nominated supervisor is nowadays not responsible to 'police everyone' and he or she not expected to 'check algorithms or check sums': (Bundle 1: page 167). He says that there is no need to keep information such as detailed plans, specifications or conditions for each project on file since tradespersons can look up any information on their digital devices: (Bundle 1: page 167).
We find that the respondent did have the required knowledge and experience to discharge the functions of a nominated supervisor, but that at best he had failed to act in accordance with his knowledge or at worst he recklessly or intentionally did not discharge his duties in a proper and competent manner. We find that in general he did not ensure that projects were completed in a safe and timely manner, and he failed to ensure that projects complied with contractual, legislative and local government requirements. We furthermore find that the respondent, when having regard to the duties as listed in the List, failed to discharge any of those duties in regard to the projects of which he was aware.
Did the respondent take appropriate steps to be informed by all projects of M3?
The applicant says that although the respondent had knowledge of some of the projects being undertaken by M3, he did not take appropriate steps to ensure that all projects were disclosed to him. For example, he did not adequately document his concern about the lack of a list of projects; he did not raise his concern in meetings and if he raised it he did not ensure that his concern was documented; he did not make enquiries from tradespersons at the sites about other possible projects in which they were involved for M3; did not contact the applicant to discuss his concerns; and he did not terminate the contract when full information was not provided to him.
The respondent says that he repeatedly asked M3 about the projects that were underway (for example, Bundle 2: page 192); that he attended the office of M3 on a weekly basis; that he visited some building sites; that he informed M3 that the September dropbox was not active; and that he resigned in January 2015 when he became aware that M3 had not provided him with accurate details about all the projects for which he had responsibility as nominated supervisor. The respondent says he did as would reasonably have been expected of a nominated supervisor to ensure that all the projects for which he was responsible, were disclosed to him.
We find that the respondent did not take appropriate steps as a competent nominated supervisor to be informed of all the projects of M3. The reasons for our finding are as follows:
•The respondent did not insist prior to entering into the employment contract that a list of all projects be given to him. In the absence of a list of projects it is unlikely that the respondent could have estimated with any accuracy the time required to discharge his duties as nominated supervisor.
•The respondent did not ensure that a list of projects was enclosed with the employment contract. The respondent should have known that as nominated supervisor he had a statutory duty for the management and oversight of building projects of M3 and that a list of those projects must ideally form part of his contract or be provided prior to or at the time of entering into the contract.
•The respondent did not take adequate steps when he commenced service to ensure that he immediately gained access to all the building works being undertaken by M3. He did not raise his concerns at meetings; if he did raise concerns he did not keep adequate record of his concerns; he did not follow up concerns; and he persisted with the contract without knowing the projects for which he was legally responsible. We note that in an email dated 2 September 2014 (Bundle 2: page 209) he asked for a complete list of projects, but this was more than two months after him commencing service and he continued regardless of accurate information not being provided to him.
•The respondent did not make enquiries when he visited building sites from other employees and tradespersons about the actual scope of the building services of M3.
•The respondent did not contact the applicant to discuss his concerns and to ascertain the projects that were taking place by M3 under his name as nominated supervisor.
•The respondent did not after he became aware in September 2014 that the dropbox to which he was given access was incomplete or inactive, terminate his services or otherwise take appropriate steps as a competent nominated supervisor would to ensure no further building services took place ostensibly under his authority as nominated supervisor.
•Whilst we accept that a nominated supervisor is not immune against improper and dishonest conduct of an employer, in this case the respondent did not take reasonable steps and did not undertake appropriate enquiries about the projects being undertaken by M3 as would be expected of a nominated supervisor.
We therefore find that the respondent did not take appropriate steps as would be expected of a competent nominated supervisor to be informed of all the projects of M3.
Did the respondent properly discharge his functions as nominated supervisor in regard to the 10 to 12 projects of which he was aware?
The respondent acknowledges that he was aware of the 10 to 12 projects being undertaken by M3: (Bundle 2: pages 205-206). The question that arises in regard to those projects is, did he properly discharge his duties as a nominated supervisor?
The applicant says that even if the respondent had not been aware of all the projects being undertaken by M3, he failed to properly discharge the functions of a nominated supervisor as per the List in regard to the projects of which he was aware. The applicant says M3 had undertaken around 20 projects during the relevant period, but it is not clear exactly how many the respondent was aware of. By his own admission the respondent had knowledge of 10 to 12 projects. The respondent says that he made enquiries but there was no documentary evidence of a list of projects being given to him until September 2014. The respondent therefore purported to discharge his functions without being provided with a list of projects and without making reasonable enquiries of projects under way. The applicant further says that the respondent was provided with a list of the trades involved with M3 (Bundle 2: page 148) and it would not be unreasonable to expect him to have liaised with trades and to speak to them about other projects that they may be undertaking for M3. The applicant says that even in regard to the projects that were disclosed to the respondent, he did not regularly visit the sites; he did not keep detailed notes for each site; he did not inspect essential stages; he did not have access to the contracts, drawings, plans, specifications, approvals or conditions; he did not train staff on sites; he did not do inspections at key stages of the build; and he did not oversee practical completion. In short, the respondent did not discharge his duties as set out in the List in regard to the projects of which he was aware.
The respondent says he became aware of M3 seeking a nominated supervisor when he saw it advertising on Seek in May 2014. He contacted one of the directors, Mr Marc Marusco, to say that he could take on the responsibilities parttime since he had also previously worked as a part-time nominated supervisor: (Bundle 2: page 340). The respondent says he made it clear that he could only work part-time. He says that there was no 'formal to do list' but he understood his position to 'oversee' building projects: (Bundle 2: page 346). The respondent says that M3 had a full-time construction/ site supervisor, Mr Wootton, whilst Mr Martincic was a carpenter who held a Diploma in Building Construction. The respondent says he attended with Mr Martincic, on two occasions, three to four building sites in July and August 2014: (Bundle 2: pages 337-338; 350). The respondent accepted there were more projects than these, but he was not 'the police' and he assumed that the projects he did not see were 'likewise' to the ones he saw: (Bundle 2: page 350). He believed at the time M3 had around 12-15 projects underway: (Bundle 2: page 351). He says there was no need for him to familiarise himself with each of the projects because Mr Martincic was the 'full-time supervisor' albeit he was not a registered building service practitioner: (Bundle 2: page 352). In addition, there was also Mr Wootton who was in control of the building sites as 'site supervisor', but the respondent 'never met' Mr Wootton (Bundle 2: page 352) and Mr Wootton did not report to him as nominated supervisor. He knew that Mr Wootton was not a registered building service practitioner. The respondent says he also attended the offices of M3 weekly, mainly on Mondays or otherwise he would 'drop by' to ask if all was ok and 'to have a chat': (Bundle 2: page 355). He says the atmosphere at the office was always calm with no issues raised: (Bundle 2: page 60). The respondent says he spoke to Mr Martincic 'once or twice a week': (Bundle 2: page 356). He did request a list of projects so that he could 'randomly' inspect a few sites himself. He did so on 'many occasions' and there 'were no problems': (Bundle 2: page 60). He visited some projects with Mr Martincic and he was satisfied that there were no major issues and the relationship between M3 and the clients was 'amicable': (Bundle 2: page 60). The respondent says he visited three to four sites per week but he never visited the Yanchep or Dawesville sites because they were too far out: (Bundle 2: page 360). He says he visited the sites on his motorbike since he did not need tools for the inspections. He prepared a PowerPoint presentation to M3 about induction processes at building sites: (Bundle 1: pages 117-156). The 'random site inspections were fine' and the office was 'calm with a bit of light banter and enthusiasm': (Bundle 2: page 61). He had requested to spend one day a month with Mr Wootton but he was told that Mr Wootton was 'sensitive'; that Mr Wootton did not like to be 'policed' and that it would be better to visit sites when Mr Wootton was not there: (Bundle 2: page 61). The respondent did not have access to any plans or approvals for the respective projects and was therefore not able to ensure compliance with any specific conditions that may have been imposed: (Bundle 2: page 361). He 'assumed' that Mr Martincic liaised with the relevant authorities about conditions and compliance: (Bundle 2: page 363). He also did not sign off any building work at any of the stages of the build and had not undertaken practical completion certification. The respondent concedes that even in regard to the projects that were disclosed to the him, he did not regularly visit the sites; he did not keep detailed notes of his visits; he did not inspect or sign off on any of the essential stages; and he did not have access to the contracts, drawings, plans, specifications, approvals or conditions: (Bundle 2: page 395425). The respondent 'assumes' that M3 handed over about 10 to 12 projects during his term of employment but he did not finally inspect any of those and he was not part of the handover: (Bundle 2: pages 379 and 381). He was not informed when construction commenced on any site since that fell within the responsibilities of Mr Wootton: (Bundle 2: pages 363-364). There was no need for him to attend or to sign off on any major milestones of projects: (Bundle 2: page 354). In oral evidence the respondent insisted that there was no need for him to inspect slabs or footings, waterproofing, roofing or prehandover checks. Whenever the respodent visited sites he would 'go for a walk around and ask questions' (Bundle 2: page 369) but he kept no notes of those visits. If there were any issues arising from a site visit he would email Mr Martincic, but that happened only occasionally: (Bundle 2: page 371). He visited 'most' of the sites with Mr Martincic on a Saturday in November and took some notes of 'minor items'. They did not attend the sites down at Dawesville. From 29 December 2014 he and Mr Kim Orton visited all the sites that could be found in the new dropbox. They prepared notes of the visit: (Bundle 2: pages 63-146). There were a 'few silly things' that could be rectified. He directed Mr Orton to take notes and follow-up actions were taken where needed: (for example, Bundle 2: page 164). The respondent says he became involved in the management of M3 particularly in its efforts to obtain certification for AS9001: (Bundle 1: page 264). In summary the respondent says he 'did properly undertake the role of Nominated Supervisor as I have done many times before': (Bundle 1: page 53). In response to specific issues raised by the applicant, the respondent says that Mr Martincic was, inter alia, responsible for the following: (Bundle 1: pages 408-410) obtaining building permits, the program for construction of new houses, the overseeing, estimating and scheduling of materials and completion of projects. Mr Wootton was responsible to order materials and equipment for each site, to engage and oversee trades and contractors, to attend each site at regular intervals, to oversee trades, to ensure compliance with plans and conditions and to liaise with clients. In discharging these functions, Mr Wootton reported to and was managed by Mr Martincic.
Mr Andrew Leon Shue who was employed by M3 for sales and marketing during the relevant period, gave evidence: (Bundle 2: pages 431-444). Mr Shue says that although the respondent was employed to work one day per week, he was 'rarely' in the office: (Bundle 2: page 432 para 11). Mr Shue estimates that the respondent attended to the office around five to 10 times during the relevant period. Mr Shue says it was a small, open-plan office and one could see all visitors and hear all the telephone and in person discussions. He says that whenever the respondent attended the office it was for a 'chat and not to discuss M3's current building work': (Bundle 2: page 433 para 14). In the estimation of Mr Shue, he did not overhear the respondent discuss actual building projects more than three times during the relevant period. Mr Shue says he was basically always in the office and although he accepts that the respondent could have visited on the odd occasion that he was not there, he insisted in cross-examination that he had a permanent presence in the office. He denies that the respondent attended the office every Monday. Mr Shue says that he had overheard the directors saying that the respondent 'was there for his builder's registration and nothing else': (Bundle 2: page 433 para 16). The directors in fact oversaw all building projects. In the assessment of Mr Shue, the respondent would not have done 'a week's worth of actual work' during the relevant period (Bundle 2: page 435 para 22). He overheard how the directors spoke of withholding information from the respondent: (Bundle 2: page 436 para 27). According to Mr Shue, in practice, the actual site supervisor of all projects was Mr Wootton. In his assessment, Mr Wootton had nothing to do with the respondent and reported directly to Mr Martincic.
In their evidence Mr Aitken, Mr Streeton and Mr Johnson agreed that a nominated supervisor must visit building sites regularly. They did not specify what was meant by regularly since it depends on the size of operations of each building services contractor, but as a general rule they identified three to five times per week as a minimum necessity. Mr Aitken says the nominated supervisor must 'keep their finger on the pulse' (Bundle 1: page 174) of each project. Even if a nominated supervisor cannot visit each site regularly due to the large number of projects, the nominated supervisor must manage and supervise the site supervisor, do in depth spot checks, audits and retain overall responsibility and accountability for all compliance. Mr Aitken's opinion is that even if the respondent was aware of 10 to 12 projects, he should have known it would require his full-time attention to properly discharge his functions as a nominated supervisor: (Bundle 1: page 175). Mr Johnson said that he would expect a nominated supervisor to inspect each site multiple times of around three to five times per week.
We find that the respondent did not properly discharge his functions as nominated supervisor for the projects of which he had been aware during the relevant period. The reasons for our finding are:
•We reject the evidence of the respondent that he 'properly managed' the projects of which he was aware: (Bundle 1: page 52). The respondent did not have access to the relevant contracts, approved plans, special conditions, or any other relevant material related to each of the projects. He did not conduct regular inspections of the projects and he did not keep detailed notes of his visits to sites or any actions that were to be taken arising from a visit. His did not conduct audits or attend or inspect any of the essential stages of a build. He relied completely on what he was told by the directors and did not make reasonable efforts to familiarise himself with the specifications of any of the projects. The respondent did not discharge in regard to any of the projects of which he was aware the functions as identified in the List.
•The actual functions of a nominated supervisor were diffused between Mr Martincic and Mr Wootton. Mr Martincic in effect had overarching management and supervisory responsibilities for M3, whilst Mr Wootton was the site supervisor for all the projects. The respondent knew that neither of them were a registered building practitioner. Neither Mr Martincic or Mr Wootton reported to or was subject to the oversight of the respondent.
•The respondent did not regularly visit or inspect any of the projects. We accept the evidence of the expert witnesses namely that a nominated supervisor in a company the size of M3 would be reasonably expected to visit each project at least three to five times per week. The Tribunal finds that the respondent either did not visit sites at all or to the extent that those visits were cursory, highly irregular with no detailed records of the visit and no functions of a nominated supervisor as per the List discharged during those visits. We reject his evidence that he visited projects on a weekly basis and that he discharged his functions properly during those visits: (Bundle 1: page 53).
•The respondent did not visit any of the building projects of which he was aware to inspect work progress of key milestones, he assumed that Mr Wootton would ensure compliance with contractual and statutory responsibilities, the respondent did not undertake any practical completion inspections, and he did not manage, control or supervise, be it directly or indirectly, the building works of which he was aware or the activities of Mr Wootton.
•Although it is likely that the directors did not disclose all their projects to the respondent, we find that in regard to those projects of which he was aware, the respondent failed to discharge the duties of a nominated supervisor. The respondent could not explain to us on any level of detail what supervisory or management functions he had done, what notes he had kept, what follow up work he had recommended and what steps he had taken to ensure compliance with the duties contained on the List. On the contrary, it appears that he relied completely on Mr Wootton who was the de facto supervisor except for the hand over report the respondent compiled in December/January shortly before his resignation. We agree with Mr Streeton that in such circumstances a nominated supervisor should have resigned much sooner, probably in our opinion within the first week of the relevant period.
•The handwritten notes made in December/January 2014 do not comply with what is expected of a nominated supervisor. These notes were ad hoc, not reflective of a site diary and the outcome of a single inspection. This is not at the level of detail and does not reflect the knowledge or expertise expected of a nominated supervisor. We agree with Mr Streeton that it is reasonable to expect for each project a progress chart, be it computerised or by hand: (Bundle 1: pages 94-95). The respondent kept neither.
•The site inspections ostensibly undertaken by the respondent did not give rise to any management actions, decisions, or follow up as is expected as a nominated supervisor. The respondent could not provide any detailed notes other than those collated in December/January about site visits, the dates, the addresses, the state of the building, issues arising, matters requiring attention, audits, or follow-up work to be done. In our assessment the conduct of the respondent was either extraordinary reckless or even intentional since it fell far below the reasonable standard expected of a nominated supervisor, particularly for a person with many years' experience in the building industry in general: (Bundle 1: pages 57 and 106).
•The respondent did not take any steps to ensure reporting of any kind by Mr Wootton to him as nominated supervisor to liaise with Mr Wootton on a daily or weekly basis about projects or to inspect projects with Mr Wootton. The respondent unreasonably relied on the directive of Mr Martincic for the respondent not to contact Mr Wootton and not to visit sites. In similar vein the respondent also did not discharge supervisory duties over Mr Martincic. Mr Martincic can therefore not be regarded as an intermediate level of management for which the respondent was responsible. It appears that the respondent reported to Mr Martincic rather than the other way around.
•The Tribunal accepts the evidence of Mr Shue that the respondent rarely visited the office of M3 and that even when he did, the visit was in a casual context and not in the nature of a nominated supervisor who attended regular meetings for detailed discussions about projects. The respondent could not provide to the Tribunal any schedule of appointments; he did not keep notes of meetings; there were no matters recorded that arose from meetings; and whatever the nature of the meeting was, there is no evidence that the meetings considered the scope of building works being undertaken by M3. We reject the evidence of the respondent that he attended the office of Mr Martincic every Monday. We prefer the evidence of Mr Shue since it is, in light of all the evidence, more likely to be true. We agree with the applicant that all the material facts suggest that the respondent had for all practical purposes merely 'lent' his licence to M3 in order for M3 to meet its statutory obligations but without the respondent having ever intended to meet his own statutory responsibilities as a nominated supervisor during the relevant period: (Bundle 1: page 17).
We therefore find that the respondent did not properly discharge his duties as a nominated supervisor in regard to the projects of which he was aware.
Summary of findings
In summary our findings are as follows:
1)The general duties of a nominated supervisor as set out in the List are representative of what is expected in the building industry of a nominated supervisor.
2)Regardless of the use of the words construction manager in the contract of employment, the respondent was appointed as the nominated supervisor of M3 for the relevant period.
3)The respondent did not display caution and diligence to ascertain the nature and scope of the duties that would be expected of him as nominated supervisor when he negotiated terms of employment with M3, when he entered into the contract with M3 and after having commenced employment with M3.
4)Although the respondent had been given the addresses of some projects undertaken by M3, he only received a complete list of projects in December 2014: (Bundle 1: pages 13-14). The respondent failed during the relevant period to take reasonable and appropriate steps as a diligent and competent nominated supervisor would, to ascertain all projects and the details of projects undertaken by M3.
5)The respondent did have the required knowledge and experience to discharge the functions of a nominated supervisor, but at best he had failed to act in accordance with his knowledge or at worst he intentionally and knowingly did not discharge his duties in a proper and competent manner.
6)The respondent did not take appropriate steps as would be expected of a competent nominated supervisor to be informed of all the existing and new projects of M3. He failed to oversee the essential phases of construction, from footings to practical completion as per the List.
7)The respondent failed to demonstrate insight during the hearing of the shortcomings of his conduct; he showed no remorse about his failure to take appropriate action; and he showed what can only be described as a reckless disregard to the duties of a nominated supervisor.
8)The respondent did not properly discharge his duties as a nominated supervisor in regard to the projects of which he was aware.
Findings regarding the primary issue
The issue for determination is whether disciplinary action should be taken against the respondent for allegedly failing to properly discharge his duties as a nominated supervisor for M3 and if so, what the nature of the disciplinary action should be.
The Tribunal finds that there is a cause for disciplinary action against the respondent because he has failed to properly discharge the functions of a nominated supervisor during the relevant period. The failure of the respondent is exacerbated by the lack of insight of wrongdoing he displayed during the hearing of the shortcomings of his conduct, the lack of remorse about his failure to take appropriate action and his persistence that he acted properly. The conduct and evidence of the respondent can only be described as a reckless disregard to the duties of a nominated supervisor.
Penalty
The options for a penalty are found in s 58 of the BSR Act.
Jurisdiction of State Administrative Tribunal
(1)If, in a proceeding commenced by an allegation under this Act, the State Administrative Tribunal is satisfied that a disciplinary matter exists in respect of a registered building service provider, the Tribunal may do one or more of the following
(a)decline to make an order under this section;
(b)order the Board to amend the registration of the provider;
(c)caution or reprimand the provider;
(d)impose a condition on the registration of the provider, or amend an existing condition;
(e)where the provider is a building service practitioner, order that the provider undertake and complete a specified further course of training or education;
(f)where the provider is a building service contractor, order that a nominated supervisor of the provider undertake and complete a specified further course of training or education;
(g)order that the registration of the provider be suspended for a period, not exceeding 2 years, specified in the order;
(h)order that the provider's registration be cancelled and name be removed from the register;
(i)if the Tribunal makes its finding on a ground referred to in section 53(1)(c) to (m), order that the provider pay to the Building Commissioner a penalty of a fine not exceeding $25 000.
(2)An order referred to in subsection (1)(g) or (h) may be in relation to a provider's registration generally or in relation to registration in a class or classes of building service practitioner or building service contractor specified in the order.
(3)If, in a proceeding commenced by an allegation under this Act against a person who was a registered building service provider when the disciplinary matter allegedly occurred but who is no longer a registered building service provider, the State Administrative Tribunal is of the opinion that a disciplinary matter exists in respect of the person, the only powers that the Tribunal may exercise are the powers in subsection (1)(a), (c) and (i).
We invited the parties to make further submissions regarding penalty. The applicant in summary says that the respondent failed to demonstrate insight into his failure to comply with his duties and responsibilities as a nominated supervisor; that the conduct of the respondent amounted to what is often referred to as 'licence lending'; that the interests of the public were place at risk and that the respondent was motivated by self-interest. The applicant proposes a cancellation of licence and a fine.
The respondent in summary says that M3 suffers a lack of trained persons; that those who are employed do not understand the demands of modern building practices and procedures; that there was nothing untoward in the manner in which he discharged his duties for M3; that the projects were not subject to any variance of substance and hence everyone knew what they had to do; and there is no reason for any disciplinary action against him.
We note that there are several factors in mitigation for the conduct of the respondent. Most notably is that we accept that the directors actively sought to withhold from the respondent details about the building projects of M3. They did not provide the respondent with a list of projects at the time when the contract was concluded; they did not respond immediately and fully when he requested information; the dropbox to which he was given access to in September 2014 was not functional; he was told not to visit sites where Mr Wootton was present; and the first complete list of projects was given to him in December 2014. We also note that he resigned in January 2015 when he became frustrated with the conduct of M3.
We also note several aggravating factors that must be taken into account when a suitable penalty is determined. The respondent has many years' experience and:
a)knows the functions and responsibilities of a nominated supervisor;
b)he knew the penalty faced by M3 if they were to operate without a nominated supervisor;
c)he did not take reasonable precautions prior to entering into the contract to ascertain the scope of projects for which he would be responsible;
d)he signed the contract without the list of duties or list of sites being declared to him;
e)he did not act immediately when M3 failed to provide him with the necessary details about projects;
f)he commenced duties without being able to discharge his duties;
g)he did not conduct proper inspections as a nominated supervisor would in regard to the projects of which he was aware;
h)he failed to keep notes and records of the sites he had visited as a nominated supervisor would;
i)he did not attend or inspect any of the milestone moments of any of the projects;
j)he failed to oversee the project manager Mr Wootton;
k)he did not display any insight or remorse during the disciplinary process and hearing of the shortcomings of his conduct; and
l)he persisted that he had done nothing wrong and that he performed his duties as a competent nominated supervisor would do.
The failures of the respondent were so apparent that we can only categorise it as a reckless disregard for his obligations as a nominated supervisor. In light of his refusal to acknowledge his wrongdoing, the public is put at a risk if he were to remain a licensed building service practitioner.
In consideration of all the evidence and our findings, we find that the appropriate penalty is for the respondent to be reprimanded; the building licence of the respondent to be cancelled; and for a fine of $10,000 to be imposed.
Orders
The Tribunal orders:
1.Pursuant to s 58 of the Building Services (Registration) Act 2011 (WA) that the following disciplinary action be taken against the respondent for his failure to comply with the duties and responsibilities of a nominated supervisor:
a)The respondent is reprimanded.
b)The registration of the respondent as a registered building service practitioner is cancelled with immediate effect.
c)The respondent is fined to pay the amount of $10,000 to the applicant by not later than 1 November 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
22 SEPTEMBER 2021
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