High Court allows lorry driver’s appeal over EPF contribution

KUALA LUMPUR: The High Court here yesterday allowed an appeal by a lorry driver to challenge the Session Court’s decision in dismissing his originating summons against his former employer for not making contributions to the Employees Provident Fund ( EPF) account based on travel ‘reimbursements’.

In allowing S Maniam’s appeal, judge S Nantha Balan said the ‘ trip reimbursements’ did not sit well with EPF’s own definition of travelling allowance, which involved the defraying of expenses associated with travelling while on duty for the employer.

“There is no explanation by EPF in their affidavits as to why they disregarded their own publicly disclosed definition of ‘ travelling allowance’.

“The EPF Act is a piece of social legislation, so as the custodian and authority in charge of enforcing the EPF Act, it ought to be vigilant of misleading labels and convenient self- serving explanations by employers who seek to come up with creative labels to ‘dress up’ payments made to their employees with the intention that these payments would not attract EPF contributions,” he said.

There is no explanation by EPF in their affidavits as to why they disregarded their own publicly disclosed definition of ‘travelling allowance’. S Nantha Balan, judge

The judge said the use of a multitude of labels itself should have put EPF on guard as to the possibility that employers had dressed up a ‘commission’ as a socalled ‘ trip reimbursement’ when in fact it was neither a reimbursement nor a travelling allowance or overtime.

The court also allowed Maniam’s appeal to get a backdated payment of RM12,791 from his former employer Cold Chain Network Sdn Bhd ( CCN) based on trips he made while working in the company from July 2010 to August 2013.

The judge also said that such incentives were part of income that warranted contributions to EPF under the EPF Act.

The court also awarded RM3,000 in costs to Maniam.

Maniam, 58, filed the suit at the Session Court against Cold Chain Network ( CCN) and EPF as defendants in July 2016, to seek a declaration that the RM12,791 falls under the definition of ‘ wage’ under Section 2 of the EPF Act and Section 2 of the Employment Act 1955, and an order that the CCN makes EPF contributions on the commission to EPF.

However on Dec 9, 2016, the Sessions Court dismissed his suit on grounds that EPF had investigated his claims and the court had no reason to interfere in the findings.

On April 28, 2017, Maniam filed an appeal at the Kuala Lumpur High Court to challenge the Session Court’s decision.

Maniam was represented by lawyer New Sin Yew, CCN by Nik Erman Nik Roseli, while Syafiq Faizal acted for EPF. — Bernama