The employer is liable for EPF contributions on commissions, and any unjust enrichment claim requires proof of non-payment by the employee.

Appeal By Plaintiffs Against Magistrate's Decision

[1] The matter before me is an appeal by the Appellants / Plaintiffs ("Plaintiffs") against the Decision of the learned Magistrate ("Magistrate") dated 17 November 2014 which dismissed the Plaintiffs' Application for Summary Judgment under O 14 of the Rules of 2012 ("ROC") ("Application") for the sum of RM75,556.00 and ordered costs of RM2,000.00.

High Court's Decision

[2] After considering the appeal of the Plaintiffs on 9 April 2015, I reversed the Decision of the Magistrate and allowed the Plaintiffs' appeal. I ordered that Summary Judgment be given to the Plaintiffs under O 14 of the ROC against the Respondent / Defendant ("Defendant") for the sum of RM53,663.00 together with interest at 5% per annum from the date of Judgment on 9 April 2015 to the date of full realization, and costs of RM5,000.00.

Appeal By Defendant Against High Court's Decision

[3] On 18 August 2015 the Defendant filed a Notice of Appeal against the Decision of the High Court dated 9 April 2015.

Background Facts

[4] The Plaintiffs were partners of the firm, Allen & Gledhill ("Firm"), which was dissolved on 31 Desember 2004.

[5] The Plaintiffs alleged that from 2 October 1995 to 30 September 2004, the Defendant was employed by the Firm as a Legal Assistant and was paid a basic salary of RM2,500 per month. The Defendant was also paid a monthly commission of 7.5% of an amount which was determined by the Plaintiffs on a monthly basis at their sole discretion which amount was a variable monthly amount depending on the income generated by the Head Office of the Firm at Kuala Lumpur.

[6] However, the Defendant alleged that he was a partner of the Firm, as can be seen from the Firm's letterhead. The 1^st Plaintiff had assured the Defendant that a remuneration of RM10,000.00 would not be an issue. There was no discussion between the Plaintiffs and the Defendant regarding the payment of contributions to the Employees Provident Fund ("EPF"), or commission.

[7] In 2000, s 2 of the Employees Provident Fund Act 1991 ("EPF Act") was amended pursuant to s 2 of the Employees Provident Fund (Amendment) Act 2000, and the definition of wages was changed to include "commission". Consequently, EPF contributions became payable on "commission" earned by an employee.

[8] On 27 April 2005, after the Defendant made complaints to the Kumpulan Wang Simpanan Pekerja ("KWSP"), Form E was issued by KWSP against the Plaintiffs. KWSP also made demands on the Plaintiffs to pay the EPF contributions of the Defendant to KWSP.

[9] Notwithstanding the various appeals made by the Plaintiffs to KWSP, KWSP required the Firm, as the "employer" of the Defendant, to pay arrears of monthly contributions to KWSP on the amount of commissions paid to the Defendant.

[10] The Plaintiffs paid RM115,876.00 to KWSP on 9 May 2008 being the employee's and employer's EPF contributions in respect of the Defendant's commission, which KWSP recorded as received on 9 May 2008.

[11] It is not disputed that the Defendant did not make any payment towards the EPF contributions on his commission to KWSP.

[12] On 28 February 2014, the Plaintiffs, by a letter of demand, demanded the Defendant to pay the total sum of RM75,556.00 being the sum for the employee's / Defendant's EPF contributions (exh. P - 3, pp 81 and 82 of RR).

[13] The Defendant failed to comply with the Plaintiffs' letter of demand. The Plaintiffs then filed the action in the Magistrate's Court.

The Law

[14] In Cempaka Finance Bhd v. Ho Lai Ying & Anor, the Feder