VELOO V.COMMISSIONER GENERAL OF LABOUR AND OTHERS

VELOO V.
COMMISSIONER GENERAL OF LABOUR AND OTHERS

COURT OF APPEAL
SRISKANDARAJAH. J.
LECAMWASAM . J.
CA 482/2007
JUNE 4,2009

Writ of Certiorari - Non payment of E. P. F. - Independent contractor -Freelance accounting services - Nature of employment?

The petitioner sought a writ of certiorari quashing the determination of the respondents which was to the effect that the petitioner was liable to pay E. P. F. and surcharge in respect of the 4th respondent. It was contended that, the 4th respondent was an independent contractor.

Held

(1)The maximum number of employees who worked under the petitioner did not exceed four persons at any time. Therefore it is obvious that the petitioner company cannot be a large scale business enterprise as it had only three or four workers under them.

Per Lecamwasam. J.

"It is my belief that a firm of this magnitude does not require the services of a permanent accountant and that it is not financially viable for them to get the services of permanent accountant".

(2) The 4th respondent had been providing his services to other establishments as an independent contractor and hence he could not have worked on a permanent basis at the company, for the 4th respondent is only an independent contractor providing accounting services and he is not entitled to EPF benefit.

APPLICATION in the nature of a Writ of Certiorari.

Geoffrey Alagaratnam with Suren Fernando for petitioner.

A. Gnanathasan ASG for respondent.

Cur.adv.vult

September 03rd, 2009

D. S. C. LECAMWASAM. J.

    This is an application for the issuance of writs of Certiorari and Prohibition. The Petitioner in this petition has sought a writ of Certiorari quashing the determination of  the first and/ or second and/ or third respondents which was to the effect that the petitioner is liable to pay EPF and surcharge in respect of the fourth respondent as reflected in P11 and the petitioner has also sought a writ of prohibition, prohibiting the first and/ or second and/ or third respondents from taking any further legal action against the petitioner in respect of the recovery of EPF as reflected in P 11.

    According to the petitioner the fourth respondent was an independent contractor providing freelance accounting services to the petitioner and many other firms in the area  and the fourth respondent was never an employee of the petitioner. Initially there had been an inquiry by the third respondent, the Labour Officer, Ja-Ela pursuant to a complaint made by the fourth respondent and being dissatisfied  with the manner in which the inquiry was conducted, representations were made by the petitioner. Thereupon the  first respondent, the Commissioner General of Labour had appointed the second respondent, the  Assistant Commissioner of Labour to inquire into the matter. But without any inquiry the second respondent had alleged to have issued a notice of EPF and surcharge marked P3. Being dissatisfied with the manner P3 was issued petitioner requested the first respondent that he be provided a hearing before any further steps were taken. Consequent to this request, the third respondent was appointed by the first respondent to inquire into the matter. An inquiry was conducted by the  third respondent on the twelfth of February 2007 and the

written submissions thereto along with the documents were tendered on the Twenty First of February 2007. Thereafter final notice dated Thirtieth April 2007 was issued (P 11) by the second respondent. Instant application of the petitioner is to quash P 11.

    The whole dispute revolves around the nature of employment of the fourth respondent. Hence on the material available before this Court, we have to identify whether the fourth respondent is an independent contractor. If he is found to be an independent contractor providing accounting services, then he is not eligible for EPF, and the second respondent has issue

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