CLAIMS, COMPLAINTS AND INVESTIGATIONS INTO OFFENCES
—(1) Subject to this section, the Commissioner may inquire into and decide any dispute between an employee and his employer or any person liable under the provisions of this Act to pay any salary due to the employee where the dispute arises out of any term in the contract of service between the employee and his employer or out of any of the provisions of this Act, and in pursuance of that decision may make an order in the prescribed form for the payment by either party of such sum of money as he considers just without limitation of the amount thereof.
(2) The Commissioner shall not inquire into any dispute in respect of matters arising earlier than one year from the date of lodging a claim under section 119 or the termination of the contract of service of or by the person claiming under that section:
Provided that the person claiming in respect of matters arising out of or as the result of a termination of a contract of service has lodged a claim under section 119 within 6 months of the termination of the contract of service.
(3) The powers of the Commissioner under subsection (1) shall include the power to hear and decide, in accordance with the procedure laid down in this Part, any claim by a subcontractor for labour against a contractor or subcontractor for any sum which the subcontractor for labour claims to be due to him in respect of any labour provided by him under his contract with the contractor or subcontractor and to make such consequential orders as may be necessary to give effect to his decision.
(4) In this section, “employer” includes the transferor and the transferee of an undertaking or part thereof referred to in section 18A.
—(1) Whenever the Commissioner has made an order under section 115 against any employer or any person liable for the payment of any sum of money to any workman or subcontractor for labour and after inquiry finds that there exists between that employer or person liable and some other person a contract in the course of the execution of which the workman or subcontractor for labour performed the work in respect of which the order has been made, the Commissioner may summon that other person and may make an order prohibiting him from paying to the employer or person liable and requiring him to pay to the Commissioner any money (not exceeding the amount found due to the workman or subcontractor for labour) admitted by him to be owing to the employer or person liable in respect of the contract.
(2) Where that other person admits to the Commissioner in writing that money is owing by him under the contract to the employer or person liable, he need not be summoned before the Commissioner and the Commissioner may make such order in his absence.
(3) Where that other person is liable as a principal under section 65 to pay any salary due by the employer or person liable and where the money admitted by him to be owing to the employer or person liable is not sufficient to pay the whole of the salary, nothing in this subsection shall relieve him of his liability for the balance of the salary up to the amount for which he is liable under that section.
(4) Any person so summoned shall be legally bound to attend at the time and place mentioned in the summons and to answer truthfully all questions relating to the contract which the Commissioner may put to him.
(5) The payment of any money in pursuance of an order under subsection (1) shall be a discharge and payment up to the amount so paid of money due to the employer or person liable under the contract.
117. Where any person interested is dissatisfied with the decision or order of the Commissioner, he may, within 14 days after the decision or order, file a memorandum of appeal therefrom in the High Court; for the purposes of any such appeal, the decision or order of the Commissioner shall be deemed to be a decision of a District Court.
—(1) No fees other than a registration fee in accordance with the rates specified in the Second Schedule shall be charged by the Commissioner in respect of processes issued by him under this Part and all orders made by the Commissioner shall, notwithstanding that they may in respect of the amount or value be in excess of the ordinary jurisdiction of the court, be enforced by a District Court in the same manner as a judgment of that Court and all necessary processes may be served by the Court on behalf of the Commissioner.
(2) No sale of immovable property shall for the purposes of the enforcement be ordered except by the High Court.
—(1) The mode of procedure for the making and hearing of claims shall be as follows:
the person claiming shall lodge a memorandum at the office of the Commissioner, specifying shortly the subject-matter of the claim and the remedy sought to be obtained, or he may make his claim in person to the Commissioner who shall immediately reduce it or cause it to be reduced in writing;
upon receipt of the memorandum or verbal claim and of the registration fee payable by the person in accordance with the rates specified in the Second Schedule, the Commissioner shall summon in writing the party against whom the claim is made, giving reasonable notice to him of the nature of the claim and the time and place at which the claim will be inquired into, and he shall also notify or summon all persons whose interests may appear to him likely to be affected by the proceedings;
the Commissioner may also summon such witnesses as either party may wish to call;
if the party against whom a claim is made wishes to make a counterclaim against the party claiming, he shall notify the Commissioner and the other party in writing of the nature and amount of the counterclaim not less than 3 days before the date of the inquiry;
at any time between the issuing of summons and the hearing of the claim, the Commissioner may hold or cause to be held a preliminary inquiry at which the party claiming and the party against whom the claim is made shall be present after having been notified in writing of the inquiry;
at the preliminary inquiry the parties may amend or withdraw the whole claim or portion thereof, make a counterclaim or reach a settlement in respect of the claim;
if a settlement is effected at a preliminary inquiry in respect of a claim or portion thereof, the Commissioner shall make an order recording the terms of the settlement and that order shall have effect as if it were an order made under paragraph (h);
at the time and place appointed the parties shall attend and state their case before the Commissioner and may call evidence, and the Commissioner, having heard on oath or affirmation the statements and evidence and any other evidence which he may consider necessary, shall give his decision and make such order in the prescribed form as may be necessary for giving effect to the decision;
if any person interested has been duly summoned by the Commissioner to attend at the inquiry and makes default in so doing, the Commissioner may hear the claim and make his decision in the absence of that person notwithstanding that the interest of that person may be prejudicially affected by his decision;
the Commissioner shall keep a case book, in which he shall enter notes of the evidence taken and the decisions arrived at in each case heard before him and shall authenticate them by attaching his signature thereto, and the record in the case book shall be sufficient evidence of the giving of any decision, or of the making of any order, and of the terms thereof; and any person interested in a dispute, decision or order, shall be entitled to a copy of the record upon payment of the prescribed fee.
(2) In hearing claims or conducting proceedings under this Part, the Commissioner —
shall not be bound to act in a formal manner or in accordance with the Evidence Act (Cap. 97) but may inform himself on any matters in such manner as he thinks just; and
shall act according to equity, good conscience and the merits of the case without regard to technicalities.
120. In proceedings before the Commissioner, a party —
being an employee may be represented by an officer of the trade union of which the employee is a member; and
being an employer may be represented by one of his employees,
but shall not be represented by an advocate or solicitor or a paid agent.
—(1) In proceedings under this Part where it appears to the Commissioner that there are more employees or subcontractors for labour than one having a common claim or similar claims against the same employer or person liable, it shall not be necessary for each of them to make a separate claim under this Part, but the Commissioner may, if he thinks fit, permit one or more of them to lodge a memorandum or make a claim and to attend and act on behalf of and generally to represent the others, and the Commissioner may proceed to adjudicate on the several or joint claim of each and every such employee or subcontractor for labour.
(2) Where the Commissioner is of the opinion that the interest of the employer or person liable are or are likely to be prejudiced by the non-attendance of any employee or subcontractor for labour, the Commissioner shall require the personal attendance of the employee or subcontractor for labour.
122. Nothing in this Part shall limit or affect the jurisdiction of any court.
Employee’s remedy when employer about to abscond
123. [Repealed by Act 32 of 2008]
—(1) Whenever the Minister, the Parliamentary Secretary to the Minister, the Permanent Secretary to the Ministry of Manpower, the Commissioner or an inspecting officer has reasonable grounds for believing that an offence under this Act has been committed, or wishes to inquire into any matter for which provision is made by this Act or any dispute as to such matter or the death of an employee, or any matter connected with hospital and medical facilities, quarters, sanitation, inspections or the keeping of registers and other documents or whenever any person complains to the Minister, the Parliamentary Secretary to the Minister, the Permanent Secretary to the Ministry of Manpower, the Commissioner or an inspecting officer of any breach of any provision of this Act, the Minister, the Parliamentary Secretary to the Minister, the Permanent Secretary to the Ministry of Manpower, the Commissioner or an inspecting officer, as the case may be, may summon any other person who he has reason to believe can give information regarding the subject-matter of the inquiry or complaint, and the person so summoned shall be legally bound to attend at the time and place specified in the summons to furnish information or documents, produce any article or give statements, and to answer truthfully all questions which the Minister, the Parliamentary Secretary to the Minister, the Permanent Secretary to the Ministry of Manpower, the Commissioner or an inspecting officer, as the case may be, may put to him.
(2) Any person who in any way wilfully obstructs the service of or obedience to such summons, and any person summoned who neglects to attend as required in such summons shall be guilty of an offence.
(3) The Commissioner or inspecting officer shall have the power to report any failure by such person to attend as required by a summons under subsection (2) to a Magistrate, who may thereupon issue a warrant to secure the attendance of that person as required by the summons.
—(1) If upon an inquiry under section 124 it appears that an offence has been committed or that the complaint is well founded, the Commissioner may institute such proceedings, civil or criminal, as he may consider necessary under the circumstances and where the proceedings arise from a complaint made by an employee or a subcontractor for labour he shall institute the proceedings for and in the name of the employee or subcontractor for labour.
(2) In the event of there being more employees or subcontractors for labour than one making a similar complaint, the Commissioner may, if he institutes civil proceedings for and in the name of those employees or subcontractors for labour, consolidate the complaint of all those employees or subcontractors for labour into one cause of action and he shall only be required to sue out one summons for and in the name of all those employees or subcontractors for labour in respect of such causes of action.
(3) Any court which would have jurisdiction to hear and determine separate suits based on such causes of action shall be competent to hear and determine such consolidated suit, notwithstanding that the subject-matter of the consolidated subject-matter suit is in excess of the ordinary jurisdiction of that court.
(4) Judgment may be given without any amendment for such one or more of the plaintiffs as may be found to be entitled to relief for such relief as he or they may be entitled to.
126. No court fees shall be chargeable in the first instance on any proceedings commenced by an employee or a subcontractor for labour or by the Commissioner on his behalf against his employer or person liable under this Act but, in case a conviction is had or judgment given against his employer or person liable, the court fees shall be paid by the employer or person liable together with the general costs of the proceedings.