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Adjudicator has no jurisdiction over non-participating employers

Two recent applications before the Financial Services Tribunal – in which the facts of the cases were virtually identical – have highlighted that the Pension Funds Adjudicator does not have jurisdiction over complaints where an employer does not belong to a fund.

The facts of both cases were:

  • The applicants were employed as truck drivers.
  • The applicants took a severance package and sought severance benefits from the Transport Sector Retirement Fund. The applicants did not know whether their employers had been participating employers, or had deducted contributions from their salaries or paid contributions.
  • It turned out that neither the employers nor the employees belonged to the fund.
  • The applicants wanted the Adjudicator to order the employers to register with the fund and to provide particulars of all contributions that should have been paid to the fund and pay them over, and for the fund to pay the applicants their withdrawal benefits.
  • The Adjudicator ruled that she did not have the jurisdiction to make the orders.

‘Complainants’ and ‘complaints’

In both rulings, the tribunal drew attention to the following sub-sections of section 30A of the Pension Funds Act:

  • Sub-section (2): A complaint shall be properly considered and replied to in writing by the fund or the employer that participates in a fund within 30 days after the receipt thereof.
  • Sub-section (3): A complainant may lodge a complaint with the Adjudicator if he or she is not satisfied with the reply contemplated in sub-section (2) or if the fund or the employer participating in the fund fails to reply within 30 days after the receipt of the complaint.

It then highlighted the definition of a “complaint” in section 1(d): “A complaint of a complainant relating to the administration of a fund, the investment of its funds or the interpretation and application of its rules and alleging that an employer who participates in a fund has not fulfilled its duties in terms of the rules of the fund.”

The tribunal said the applicants were not “complainants”, as defined by the Act, because they had never belonged to the fund.

Their complaints did not relate to the administration of a fund, the investment of its funds or the interpretation and application of its rules or allege that a participating employer had not fulfilled its duties in terms of the rules of the fund.

The Adjudicator was therefore correct in ruling that these were labour matters that must be dealt with by other competent organs, the tribunal said.

It dismissed the applications.

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