PART XI

Adjudication and Legal Proceedings

Adjudication and appeals

73.- (1) If any question arises as to the liability of any person to pay

contributions or as to the right of any person to any benefit under this Act, the question shall be determined by the Director, subject to a right of appeal to the Board.

(2) The Minister may make Regulations to provide for -

(a) the constitution and appointment of an Appeal Tribunal for the purpose of determining any further appeal from a decision of the Board under subsection (1);

(b) a reference to the High Court from a decision on any question of law only arising out of any determination by the Appeal Tribunal;

(d) the evidence which is to be required and the circumstances in which any official record or certificate is to be sufficient or conclusive evidence;

(e) the time to be allowed for making any claim or appeal or for raising any question with a view to obtaining any decision or for producing any evidence;

(f) summoning persons to attend and give evidence or produce documents and for authorising the administration of oaths to witnesses;

(g) the representation of a person at any hearing or a case, by another whether having legal qualifications or not;

(h) matters pending determination under this Act whether at first instance or on appeal or reference, of any claim for benefit or assistance or of any question affecting the right of any person to benefit or assistance or to the receipt of any benefit or assistance or of the liability of any person for contribution;

and

(i) any matter arising out of a decision on appeal or reference under this Act on any claim or question.

(3) The decision of the High Court on a reference on a point of law or of the Appeal Tribunal shall be final.

(4) Notwithstanding subsection (2), Regulations made under that

subsection may include provisions -

(a) for the suspension of benefit or assistance where it appears that there is or may be a question whether the conditions for receipt thereof were fulfilled;

(b) as to the date from which any decision on a reference or appeal is to have effect;

(c) for treating any benefit paid to any person under the Regulations, which it is subsequently decided was not payable as properly paid or as paid on account of any other benefit which it is decided was payable to him or for the repayment of any such benefit and the recovery thereof by deduction from any other benefit or otherwise;

(d) for treating any benefit paid to one person in respect of another person (being a child of or the wife or husband or an adult dependant of the first mentioned person) as having been properly paid for any period, notwithstanding that under Regulations relating to benefits it is not payable for that period by reason of a subsequent decision either -

(i) that such other person is himself or herself entitled to benefit for that period; or

(ii) that a third person is entitled to benefit or assistance for that period in respect of such other person in priority to the first mentioned person; and

(iii) for reducing or withholding accordingly any arrears payable for the period by virtue of a subsequent decision.

(5) There shall be paid out of the Fund to the members of an Appeal

Tribunal appointed under Regulations made under this section, such remuneration and allowances, as the Board, with the prior approval of the Minister, may determine.

Unpaid contributions to rank as priviledged debt

74.- (1) Where-

(a) any execution has been levied against the property whether movable or immovable, of an employer, in respect of a judgement against him or her, and any such property has been seized or sold or otherwise realised in pursuance of such execution; or

(b) on the application of a secured creditor, the property, whether movable or immovable, of an employer has been sold,

any sums due as contributions by such employer shall rank as a priviledged debt pari passu with state taxes without the necessity for registration thereof.

(2) For the purpose of this section, employer includes any company in liquidation.

Joint liability of firm and officers

75.Where an offence under this Act has been committed by a body corporate, firm, society, or other body of persons, any person, who at the time of the commission of the offence was a director, manager, secretary or other similar officer or a partner of the body corporate, firm, society or other body of persons or was purporting to act in such capacity shall, as well as such body corporate, firm, society or other body of persons be said to have committed that offence, unless he or she proves that the offence was committed without his or her consent or connivance, and that he or she exercised all such diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his or her functions in that capacity and to all the circumstances.

Certified copy as evidence

76.A copy of an entry in the accounts of the Fund and of other extracts from the records of the Fund, shall when certified under the hand of the Director, be received in all courts as prima facie evidence of such entry having been made, and of the truth of the contents therein.

Civil proceedings

77.- (1) Notwithstanding any provision of this Act, a contribution to the Fund may be recoverable by action as a debt owing to the Fund at any time forty years from the date when the contribution becomes due.

(2) Any action for the recovery of contributions under this section

may be instituted by the Director of the Fund or by any other person authorised in that behalf by the Director, and where the action is instituted in a District Court, any person authorised by this subsection may appear and conduct such proceedings.

(3) For the purpose of this section, “contribution” includes any surcharge imposed under this Act.

Execution and enforcement of judgement in certain circumstances

78. Where a judgement is obtained in any court against a person in respect of sums due to the Fund, an inspector or other officer authorised in that behalf by special or general direction of the Corporation may proceed to execute and enforce that judgement and exercise all the remedies for the satisfaction of the judgement notwithstanding any enactment or rule of law to the contrary relating to-

(a) the powers or duties of a receiver;

(b) the effect of a winding up order under the Companies Act 1996; or

“Garnishment”

79.- (1) Where the Corporation is satisfied that any person is indebted to or liable to make a payment to another person and that other person is indebted to the Fund under this Act, the Director may deliver to the first mentioned person a demand for payment as set out in Form DN 1 appearing in the Fifth Schedule, stating -

(a) the name of the person indebted to the Fund;

(b) the amount of the debt due to the Fund including any surcharge on the debt; and

(c) where the first mentioned person is the employer of the person indebted to the Fund, the amount demanded for each pay period, being an amount not exceeding one third of the sum payable to the employee during that period, expressed either as a dollar amount or a percentage of remuneration.

(2) A person who receives a demand for payment under subsection (1) relating to one of his or her employees shall pay to the Corporation at the same time as he or she would pay that employee, the amount demanded by the Director, or the amount of the employee’s indebtedness to the Fund whichever is the lesser, and shall continue to do so on each occasion that the employee is entitled to be paid until the employee’s indebtedness to the Fund is satisfied.

(3) A person who receives a demand for payment under subsection (1) relating to a person other than one of his or her employees shall, if he or she is indebted to or liable to make payment to that other person, pay to the Corporation the amount of his or her indebtedness which he or she is liable to pay to that person or the amount of that person’s indebtedness to the Fund whichever is the lesser.

(4) A person who has discharged any liability to a person indebted to the Fund under this Act after receiving a demand for payment under subsection (1) without complying with sub-section (2) or (3) commits an offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding twelve months or to both such fine and imprisonment.

(5) The payment of an amount to the Corporation under sub-section (2) or (3) operates as a discharge of any liability of the person making the payment to the person to whom the payment would, but for this section, have been paid, to the extent of the amount paid to the Corporation.

Joint liability of third parties in civil proceedings

80.- (1) Notwithstanding any enactment or rule of law to the contrary a Director, Manager, Accountant, Liquidator or Receiver of a body corporate, may be joined as a party to an action for the recovery of contributions and surcharge owed to the Fund by such body corporate and if found to have failed to deduct, retain or become accountable in any way for any amounts due and owing, such person shall be personally liable whether jointly or severally to pay in whole or in part such amounts owing to the Fund.

(2) No person shall be liable for a failure under subsection (1) if the Court is satisfied that such person exercised a degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances to prevent the failure.

Recovery by way of distress warrant

81.- (1) Notwithstanding any provision of this Act any contribution due and owing to the Fund may be recoverable by way of a warrant as set out in Form NI/DW of the Fifth Schedule issued by the Director and directed to the Registrar of the High Court, setting out in such warrant or in a Schedule thereto the several sums due on account of contributions and surcharge from the persons and bodies against whom the warrant is directed.

(2) Notwithstanding subsection (1) no warrant shall be issued under this section unless the Director has given at least thirty days notice in writing in the form set out as Form DN2 in the Fifth Schedule, to the person or persons against whom the warrant is directed.

(3) The Registrar of the High Court shall on receipt of the warrant

issued under sub-section (1) proceed to levy upon the goods, chattels and lands of the person or persons against whom the warrant is directed and to sell so much of such goods, chattel and land as may be required, to satisfy the sums due on account of the contributions owed to the Fund.

(4) Every sale carried out pursuant to sub-section (2) shall be conducted by public auction and shall be held at a place and time to be determined by the Registrar of the High Court.

(5) No sale shall be conducted under this section unless a notice of such sale is published in the Gazette.

(6) The proceeds of sale shall be applied to the payment of the contributions due and the expenses of the levy and sale.

Offences and penalties

82.- (1) Any person who-

(a) fails to pay at or within the time prescribed for the purpose, any contribution or surcharge which he or she is liable to pay pursuant to this Act;

(b) for the purpose of evading payment of any contribution or surcharge by himself or herself or some other person;

(i) makes any false statement or representation; or

(ii) produces or furnishes or causes, or allows to be produced or furnished any document or information which he knows to be false in a material particular;

(i) makes any false statement or representation; or

(ii) produces or furnishes or causes to be produced or furnished any document or information which he knows to be false in a material particular;

(d) wilfully delays or obstructs or refuses admission to the Director or any Inspector, in the exercise of any functions under this Act;

(e) refuses or neglects without reasonable cause to answer any questions or to furnish any information or to produce any document when required to do so under this Act;

(f) being an employer deducts or attempts to deduct or otherwise recovers or attempts to recover the whole or any part of the contribution of the employer in respect of any insured person;

(g) misrepresents or fails to disclose any material facts;

(h) fails or neglects to deduct any contributions under this Act;

(i) being or having been (an auditor of the books and records of the Fund) or a member, employee or agent of the Corporation, directly or indirectly communicates or reveals to any person any matter relating to the business of the Corporation or the Fund which becomes known to him or her in his or her capacity as auditor, member, employee or agent, except as may be required for the due discharge of his or her duty as such auditor, member, employee or agent or as may be permitted by the Corporation;

(j) procures any member, employee or agent of the Corporation, or any person who has been such member, employee or agent to communicate or reveal any such matter as is set out in paragraph (i),

commits an offence against this Act and is liable on summary conviction to a fine not exceeding five thousand dollars or to a term of imprisonment not exceeding six months or to both such fine and imprisonment.

(2) A person who commits an offence under this Act for which no punishment is provided is liable, on summary conviction, to a fine not exceeding five hundred dollars or to imprisonment for three months.

Recovery of contributions in proceedings under this Act

83.- (1) In any case, where any person has been charged with an offence under this Act for failing to pay a contribution, he or she shall be liable to pay to the Fund a sum equal to the amount which he or she failed to pay, together with any surcharge as the case may be.

(2) On any such charge as is mentioned in subsection (1), if notice of intention so to do has been served with the summons or warrant, evidence may be given at any stage of the proceedings -

(a) of the failure on the part of the person charged to pay within the time prescribed on behalf or in respect of the same insured person other contributions under this Act during the three years immediately preceding the date of the offence; and

(b) in the case of any such charge as is mentioned in subsection (1) of the failure on the part of the said person charged to pay on behalf or in respect of any other person employed by him or her, any contributions under this Act on that date or during the past three years,

and on proof of such failure, the person charged shall be liable, on conviction, to pay to the Fund a sum equal to the total of all the contributions under this Act which he or she is so proved to have failed to pay and which remain unpaid at the date of the conviction.

(3) If an employer, being a body corporate, firm, society or other body of persons fails to pay to the Fund any sum which they have been ordered to pay, then every director or partner as the case may be of the body corporate, firm or society who knew or could reasonably be expected to have known of the failure to pay the contribution or contributions in question shall be liable jointly and severally to the same penalties or where applicable, to the same punishment as a single unincorporated employer.

(4) Where any person is liable to repay any sum received by him or her by way of benefits, that sum may be recovered without prejudice to any other remedy, by means of deductions from any payment or benefit to which he or she may thereafter become entitled.

(5) Notwithstanding any fine or conviction under this Act, an employer or employee shall remain liable to pay to the Fund any contribution, surcharge and interest due and payable under this Act.

Proceedings against employer for benefit lost by default

84.- (1) Where an employer has failed or neglected to -

(a) pay any contribution which under this Act he or she is liable to pay in respect of or on behalf of any insured person in his or her employment; or

(b) comply in relation to any insured person, with the requirements of this Act relating to the payment and collection of contributions, and by reason thereof that person to whom a benefit under this Act may have been payable has lost in whole or in part the benefit to which he of she would have been entitled,

that person is entitled to recover in a District Court, from the employer as a civil debt, a sum equal to the amount of the benefits so lost, irrespective of the amount.

(2) Proceedings may be taken under this section, notwithstanding that proceedings have been taken under any other section of this Act in respect of the same failure or neglect.

(3) Proceedings under this section, may, notwithstanding any enactment to the contrary, be brought at any time within ten years after the date on which the insured person, but for the neglect or failure of the employer, would have been entitled to receive the benefit lost.

Disclosure of information by Inland Revenue Department

85.- (1) No obligation as to secrecy imposed by statute or otherwise on persons employed in the Inland Revenue Department shall prevent information relating to the assessment or collection of income tax from being disclosed to the Director where such information relates to the collection of contributions, or the payment of benefit under this Act.

(2) Subsection (1) extends only to disclosure by or under the authority of the Comptroller of Inland Revenue and information which is the subject of disclosure to any person by virtue of the subsection shall not be further disclosed to any person, except where the further disclosure is made -

(a) to a person to whom disclosures could otherwise have been made by or under the authority of the Comptroller of Inland Revenue; or

(b) for the purpose of any proceedings (civil or criminal) in connection with the operations of any enactment relating to the calculation or collection of contributions, or the payment of benefit under this Act.

Proceedings to be in Director’s name or person authorised

86. Proceedings for any offence under this Act shall be taken in the name of the Director or any person authorised by him or her in writing and shall be commenced not later than three years after the complaint arose.