These Guidelines are issued with the objective of providing an operating framework by which the Fair Trading Commission (the Commission) may carry out its mandate in terms of Consumer Protection Act 2010 (CPA). These Guidelines cover a wide range of issues, from how the Commission will enforce the Act to how various essential processes and procedures will be carried out.
1. The Fair Trading Commission
The Commission is a body corporate, established under section 3 (1) of the Fair Trading Commission Act 2009 (FTC Act) to enforce any written laws relating to consumer protection and fair competition.
1.1 Functions of the Board of Commissioners
Members of the Board of Commissioners (the Board) are appointed by the President of the Republic under section 5 (1) of the FTC Act. Three Commissioners constitute a quorum for any meeting of the Board. After the submission of an investigation report in respect of infringements of the CPA, by the Chief Executive Officer (CEO), the Board shall convene a hearing under section 9 (1) of the CPA.In accordance with section 42 (1) of the FTC Act, at conclusion of a hearing, the Board shall make such orders as it may consider appropriate, shall state its decision and shall state the time within The Fair Trading Commission which the order is to be complied with. Within one month of giving a decision, the decision shall be published in writing alongside supporting reasons for the decision.
1.2 Functions of the Chief Executive Officer (CEO)
The CEO is appointed by the President of the Republic under section 20 of the FTC Act and is responsible to the Board of Commission for the administration of all legislations under the jurisdiction of the Commission and for the supervision of staff and work of the Commission.
1.3 Functions of staff of the Commission
Members of staff enforcing the CPA are employed under section 22 of the FTC Act. In these guidelines, the above mentioned staff are referred to as Enforcement Officers and are under the supervision of the Director for Consumer Affairs (the Director). The Director and the Enforcement Officers are empowered to investigate any infringement of the CPA stipulated by the CEO.
1.4 How the Commission will enforce the Act
In terms of section 4 of the CPA the Commission is empowered to:
- Initiate or receive complaints concerning alleged prohibited conduct and deal with those complaints in accordance with the provisions of the CPA
- Investigate and evaluate complaints or alleged prohibited conducts and offences
- Issue and enforce compliance notices
- Accept and enforce undertakings
- Conduct hearings and issue notices and orders
- Impose remedies or financial penalties
- Impose fees
- Monitor the consumer market to ensure that prohibited conduct or offences are prevented, detected and prosecuted.
2. Consumer Complaints
The following highlights the manner in which the Commission will deal with complaints received. The Commission is empowered to initiate or receive complaints of alleged prohibited conduct and to deal with such complaints in accordance with the CPA
2.1 What is a complaint?
A complaint comprises of an allegation that consumer’s rights under the CPA have been infringed, impaired or threatened or that prohibited conduct has occurred or is occurring. Such complaint may be submitted in any manner or form. However, for official purposes, the Commission encourages consumers to submit complaints by completing the Consumer Complaint Form which can be downloaded at the following link: http://www.ftc.sc/index.php/consumer-protection/consumer-complaints
Consumers may refer to the “Guide to Complete the Complaint Form” which can be downloaded at the following link:
2.2 Who can lodge a Complaint?
Under the CPA a consumer who is lodging a complaint is a person who
- has purchased goods for private use or consumption and not for the purpose of resale, or in the production or in the manufacturing of other goods;
- Has acquired services from a supplier in the ordinary course of the supplier’s business
A consumer may therefore be a business consumer should the transaction fall within the CPA.
The Guide on How to Enforce Your Consumer Rights and Responsibilities clearly details when a person can be defined as a consumer. The Commission is empowered under the CPA to initiate a complaint concerning any alleged prohibited conduct. A person who lodges a complaint with the Commission is referred to as the complainant
2.3 Against whom may a complaint be lodged?
A complaint may be lodged against any person, who is carrying on any commercial activity for gain or reward, including any trade or profession and the activities of professional or trade association or a public body. A person whom a complaint is lodged is referred to as the respondent.
3. Complaint Handling and Investigation
3.1 Receipt of Complaints
A complaint lodged by a consumer to the Complaint Officer will be escalated to the Director. The latter will carry out a preliminary assessment of the complaint.
3.2 Preliminary Assessment of Complaint by the Director
3.2.1 First Step
The first step is to identify whether the complainant is a consumer under the CPA and whether the complaint is lodged against a person carrying on any commercial activity for gain or reward. If this condition is not met, the Director will forward his recommendation for closure of the case with supporting reasons to the CEO for approval. Such a recommendation for closure shall be forwarded to the CEO within 3 working days from the date that the complaint was lodged.
Upon approval, the Complaint Officer will draft a letter containing the reasons for closure and advice on other possible legal means to obtain redress and forward it to the Director for approval and signing. The complainant shall be informed of the Commission’s decision to close the case within 3 days of the CEO’s approval.
3.2.2 Second Step
If the first condition has been met, the second step is to assess the complaint in accordance with the procedures set up in Section 32 of the FTC Act. If the abovementioned criteria are not met or if the Commission is satisfied that: the complaint is not trivial, frivolous or vexatious
A complaint is
- Trivial- of little significance or value, ordinary or commonplace
- Frivolous- not worthy of serious notice, lack of seriousness
- Vexatious- an abuse of the process of the Commission, made to harass or cause delay or for any other wrongful purpose, made to unfairly annoy, frighten, punish or take revenge on someone.
- the complaint is made in good faith
A complaint made in good faith is a complaint made in
- honesty, fairness, lawfulness or purpose,
- absent of any intent to defraud or act maliciously or take unfair advantage of the complainant has sufficient interest in the matter.
- A complainant has sufficient interest in a matter when he can demonstrate sufficient connection to and harm from the action being challenged, to support that party’s participation in the case.
- If the complainant cannot prove this he will lack the sufficient standing to bring forward a complaint.
If these conditions are met, the Director shall forward his recommendation for closure of the case with supporting reasons to the CEO for approval within 3 working days. Upon approval by the CEO, the Complaint Officer will draft a letter containing the reasons for closure and advice on other possible legal means to obtain redress and forward it to the Director for approval and signing. The complainant shall be informed of the Commission’s decision to close the case within 3 days of the CEO’s approval.
However, such decision by the Commission does not prevent the a party dissatisfied with an order of the Commission from appealing to the Appeal Tribunal set up under section 44 of the FTC ACT or seeking any other legal action out of the Commission or to pursue other legal means.
3.2.3 Third Step
If both requirements have been met, the third step is to assess the facts of the complaint and possible infringements of the CPA. The Director will submit his recommendations to the CEO for approval to launch mediation or investigation. Upon approval, the Director will assign the case to an enforcement officer. The latter will action as per the followings:
- Where insufficient information has been provided: The enforcement officer shall, within 3 working days, call the complainant and request the latter to furnish further information. Furthermore, during the same time frame, the telephone call will be followed by a letter or an e-mail requesting the same. The complainant will be given working days to submit the requested information.
If the information provided by the complainant is not sufficient to enable the enforcement officer to determine the core of the complaint, the Officer shall, within 3 working days, contact the complainant to request further information. The request for additional information can be done by telephone, e-mail or in writing depending on the appropriate mode of correspondence stated by the complainant in the complaint form.
- The complainant will be given 7 working days to provide the required information.
- Should the complainant fail to provide the required information within 7 working days, the enforcement officer should contact the complainant for a follow-up.
- Should the complainant still not furnish the additional information the enforcement officer should record the action and submit an Internal Memo to the Director for approval for closure of investigation.
- The Director will submit a Memo to CEO recommending closure of the case.
- Upon approval, the enforcement officer will draft a letter containing the reasons for closure and forward it to the Director for vetting and signing.
- The CEO will submit a notification of closure of the case to the Board.
- Where sufficient information has been provided: When sufficient information has been provided by the complainant, the enforcement officer, within 4 working days after receipt of sufficient information will draft a “staff analysis”, analysing the facts in the complaint in accordance with the provision of the CPA. The objective of a staff analysis is to identify the possible infringements of the CPA. However, other laws and standards may be taken into consideration. The Officer will take into account the following points:
1. The nature of the complaint
2. The risk and harm to consumers
3. The harm the complainant may suffer if the matter is delayed
The staff analysis shall:
- state the facts of the complaint
- Identify if the complainant has obtained reasonable redress from the respondent.
- Identify provisions of the CPA that has been contravened;
- Establish if there are sufficient evidences or supporting documents to launch an investigation.
- The recommendation of the officer to start investigation or close the case.
The enforcement officer will forward the staff analysis to the Director who will assess the findings and recommendations. Within 3 working days the Director will give a directive for action as per the following:
The Commission may use any of the following method to negotiate a quick redress for the complainant:
3.3.1 Telephonic Mediation
This method is effective for less complex cases and in situations of a co-operative respondent. The time frame to achieve a successful outcome of mediation is a maximum of 10 working days.
- The enforcement officer handling a case through this type of method will begin by introducing himself and provide a brief background of the Commission procedure in handling complaint. The enforcement officer should request to speak to a person with authority to make decisions and should record the name and position of the latter.
- The enforcement officer must give a summary of the complaint and redress being sought by the complainant, for example, if a repair, a replacement or refund is being requested.
- The enforcement officer will provide the respondent with the opportunity to respond to the allegations. The respondent will be allowed to suggest possible methods of resolving the complaint. The respondent’s offer will have to be corresponded to the complainant. The complainant will be given reasonable opportunity to accept or decline the offer.
- The will record all the information on the file note.
- The enforcement officer may also call for a joint consultation with both the complainant and the respondent in order to allow both parties to reach an agreement.
If a settlement is reached and the complainant obtains an appropriate redress, the enforcement officer will draft a letter advising both parties of the closure of the case. However, if the respondent refutes the allegation and the enforcement officer is satisfied that sufficient proof has been providedby the respondent to sufficiently disprove the allegation against the respondent, the enforcement officer will draft a letter advising both parties of the closure of the case. The case will then be forwarded to the Director for notification of closure of the case.
In cases where no settlement is reached and there are reasonable grounds that a business has engaged in a prohibited practice, the complaint and case analysis should be forwarded to the Director for the launching of an investigation.
3.3.2 Written Mediation
The enforcement officer handling the complaint should:
– draft a letter informing the complainant that the complaint has been assigned to one enforcement officer (name of the enforcement officer) for mediation
– draft a letter advising the respondent of the allegations before the Commission and request a response in 7 days for a fast and effective resolution to the matter.
- Should the respondent offer to settle the complaint, the enforcement officer will notify the complainant by phone and the same information should be communicated by an e-mail or a letter. The correspondence from the respondent should be attached in the e-mail or enclosed in the letter. The complainant should be given 3 working days to accept or decline the offer. If settlement is accepted it will be confirmed by letter and a copy will be sent to the respondent within 3 working days from receipt of the acceptance from the complainant.
- If the complainant is not satisfied with the respondent’s offer, the enforcement officer will discuss with the Director about the reasonableness of the refusal by the complainant and other possible remedies that may be available.
- In the event that the respondent does not agree with the remedy suggested or disputes the allegations, the enforcement officer will advise the complainant accordingly of the deadlock and/or dispute of fact which results in the matter not being capable of resolution.
If no settlement is reached and there are reasonable grounds that a business has engaged in a prohibited practice, the complaint and case assessment should be forwarded to the Director for the launching of investigation.
If settlement is reached and the complainant obtains a redress, the enforcement officer will, within 3 working days, draft a letter advising both parties of the closure of the case. However, if the respondent refutes the allegation and the enforcement officer is satisfied that sufficient proof has been provided, the enforcement officer will, within 3 working days, will draft a letter advising both parties of the closure of the case. The case will be forwarded to the Director for notification for closure of case.
3.3.3 On-site Visit Mediation at an On-site Visit
- The enforcement officer handling this type of method will begin by introducing himself and provide a brief background of the Commission procedure in handling complaint. The enforcement officer should request to speak to a person with authority to make decisions and should record the name and position of the latter.
- The enforcement officer must give a summary of the complaint and redress being sought by the complainant, for example, if a repair, a replacement or refund is being requested.
- The enforcement officer will provide the respondent with the opportunity to respond to the allegations. The respondent will be allowed to suggest possible methods of resolving the complaint.
If settlement is reached and the complainant obtains an appropriate redress, the enforcement officer will propose that the Respondent offers an undertaking to the Commission to document the agreed redress in accordance with Section 75 of the CPA. The Commission may assist the respondent in drafting the undertaking. The undertaking will only have effect when both parties, as well as the Commission are satisfied with the terms of the undertaking. The enforcement officer will, within 3 working days, draft a letter advising both parties of the closure of the case. The case will be forwarded to the Director for notification of closure of the case. If the respondent is found to be conducting a prohibited practice, the enforcement officer will inform the respondent of the breach and explain to the respondent the consequences of the contravention under CPA.
If no settlement is reached and there are reasonable grounds that a business has engaged in a prohibited practice, the complaint and case analysis should be forwarded to the Director for the launching of an investigation.
4. Investigation by the Commission
4.1 Objective of the Investigation
The objective if the investigation is to establish:
- Whether an offence has been committed in accordance with the provisions of the CPA
- Whether the respondent has engaged in a prohibited conduct
- Whether the complaint has been given a reasonable remedy by the respondent and in line with the provisions of the CPA
4.2 Assignment of case
The case will be assigned to an enforcement officer. The enforcement officer will assess the case and determine if it constitutes an infringement of CPA. The Officer will draft a letter advising the complainant that investigation has been launched and that the case has been assigned to an enforcement officer to handle investigation. The draft should be forwarded to the Director for approval and signing.
4.3 Evidence Gathering
Evidence will be gathered by the enforcement officer investigating the complaint. Documentary or other evidence must be appropriately collected, recorded, seized subject to a warrant from the Magistrate Court and secured. The enforcement officer’s duty is to relate the provisions of the CPA to the facts in each matter by comparing each element of the breach with the facts as revealed throughout the investigation. Some facts will establish one element only, while some may prove more than one element. Facts not proving any element are irrelevant and can be ignored.
To help in the assessment of the complaint, the enforcement officer will write a list of elements of each breach and next to that list, substantiate the facts proving the breach. This will help the enforcement officer in identifying any potential deficiencies in proving any breach. The enforcement officer will hence identify any further investigation which must be undertaken to prove the breach, in order to establish the liability of the respondent.
4.4.1 Evidence and Procedural Fairness
a. Witness Statements
All relevant information collected during the investigation which will be is of importance to the settlement of the case and to the Board of Commissioners will be recorded in the Witness Statement Form. The witness can write his or her own statement, which must be dated and signed.
The enforcement officer may also record the request upon request of the witness. The witness shall then read through what has been recorded and if satisfied the witness shall date and sign the statement.
A signed statement is important because:
- it serves as a basis for investigation and provides information for further enquiry where necessary
- it acts as an accurate account of the matter being investigated
- it is easy to review and assess
- the witness can refer to the statement to refresh his or her memory if they are summoned for a hearing
- it allows a witness to be cross examined on the contents of the when giving evidence
A statement is useful because it helps:
- to gain evidence
- to compare evidence
- it serves as a basis for further investigation
- it links physical evidence to the investigation
- it assists in preparing Board cases
b. Conducting hearing with the respondent
Pursuant to section 41 of the FTC Act, the conduct of the hearing or meetings shall follow the procedures in the Fair Trading (Procedures for conduct of hearings) Rules 2011 and have regard to:
- The principles of natural justice
- The need for fairness between the parties
- The need for expeditious determination of any matter before the Commission
In accordance with Rule 13(2) of the Fair Trading (Procedures for conduct of hearings) Rules 2011, the minutes of the hearing containing the main statements made by the person present at the hearing before the enforcement officer shall be drawn up and signed by the officer conducting the hearing and by the person given evidence or by the legal representative. A copy of the minutes shall be sent to the respondent.
Whenever a person does not wish to or is unable to sign the minutes, mention of this fact shall be made in the minutes together of an indication of the reasons.
Any person may make a written request for a hearing if the person can show that he/she is an interested party likely to be affected by the result of the investigation or hearing or that there are particular reasons why he/she should be heard.
During the hearing before an enforcement officer:
- bring to the attention of the respondent he allegations made by the complainant
- the sections of the FTC Act or the CPA that have or may have been contravened
Moreover, the officer obtains facts for the case, requests information in order to assess statements made by both parties. The officer gathers all the necessary information, including a copy of
- licence issued by the relevant authority
- certificate of incorporation, certificate of registration and particular of directors issued by the Registrar
All actions and decisions on a case must be recorded on a file note or the activity recording sheet and must be signed and dated.
Assessment of Evidence
When assessing evidences of an investigation, the enforcement officer should take into account the following:
- whether the Commission has the necessary jurisdiction
- the availability, competence and credibility of witnesses
- the manner in which evidence was obtained
- the sufficient weight of evidence behind each element of an offence
- the respondent has had an opportunity to respond to an allegation
- if there are line of defence under the Act
- the respondent stated is the right legal person
The CPA creates number of defences that may be available in respect of breaches under the CPA. Such sections disapply certain provisions in the act based on specific circumstances. These Sections define circumstances where, if the Respondent proves them, provide a defence against the alleged· breach. Such justifications, if available, must be reported on.
4.5 The investigation Report
Once an investigation is completed and an action or a settlement is proposed, an Investigation Report must be prepared. The objective of an investigation report is to help in making a decision as to the appropriate enforcement action to be taken. The Investigation Report will provide recommendation from the enforcement officer and appropriate enforcement action to be taken.
The format of the Investigation Report should contain the following:
- details of parties
- relevant information of parties
- issues or allegation investigated as per the complaint form
- breaches identified
- suppliers response
- avenue of enquiry undertaken
- legal analysis, case law if relevant, any other relevant law or standards
- findings and supporting reasons
- recommended action, such as issue of compliance notice or referral to Board
- reference to evidence or exhibit in possession of the Commission
- confirmation of redress being provided by the supplier to the consumer if relevant
One of the primary objectives of an investigation is to obtain the facts and evidence to determine if enforcement action is appropriate. Sufficient evidence may be gained to support enforcement action for another type of breach. Throughout the process the Officer must assess if sufficient evidence has been obtain for the proper enforcement action. If the evidence collected is insufficient, the Officer should look for other avenues. However, if there is insufficient evidence to take further action, the investigation may be closed.
4.7 Dealing with the Complainant
The enforcement officer handling the complaint is required to deal fairly and efficiently with the complainant. Upon receipt of the case the enforcement officer should contact the complainant within 3 working days to:
- advise that he/she will be handling the case
- confirm the issues for investigation with the complainant
- request other information
The information should be recorded. The complainant is to be updated on the case when there are new issues or at least every month.
4.8 Carrying out complaint-based inspection
If necessary, the officer carries out inspection at the premises of the respondent or complainant to assess the subject matter of the complaint. The officer gathers evidence for the case, such as taking photos or obtaining any documents that will be relevant in determining the any breach under the CPA Act.
In the case that the investigation needs opinion from expert such as the Fire Services, the Seychelles Bureau of Standards or the Public Health Laboratory, the Officer shall contact the relevant agencies and request their expertise and report on the subject matter of the complaint.
5. Legal Input
At any time during mediation or investigation of cases, if any complex legal issues arise, the enforcement officer may request through the Director to obtain a legal opinion. The Senior Legal Officer within 4 working days will vet the complaint, the findings, the provisions of the FTC Act and CPA that have been used by the Officer. The Senior Legal Officer will give his/her opinion on the case and may add any other provisions of the FTC Act or the CPA that may be used. Legal Input for Cases to be heard before the Board.
Should the Director decide that in a case there has been no successful settlement and that the respondent is involved in prohibited practices, the Director shall submit to the CEO the case file and analysis with a recommendation that the case be heard before the Board.
With the CEO’s approval, the case shall then be forwarded to the Legal Department who shall prepare the Board Paper and ensure that all relevant materials to be used as evidence is present and annexed.