QUOTE(wongmunkeong @ Mar 29 2020, 03:05 PM)
if a company go belly-up before settling EPF:
https://asklegal.my/p/company-bankrupt-owe-...-corporate-veil --snippet--
Other laws and (possibly) lawsuits
Other than the Companies Act, there are various other laws that specifically allow for the directors of the company to be personally liable for certain debts of the company. Two prominent and good examples of this are the Employees Provident Fund Act 1991 (“EPF Act”) and the Income Tax Act 1967 (“ITA”).
Section 46 of the EPF Act makes the directors of the company jointly and severally liable for the company’s unpaid EPF contributions. Similarly, section 75A of the ITA provides that where any tax is due and payable under the ITA by a company, any person who is a director of that company during the period in which that tax is liable to be paid, shall be jointly and severally liable for such tax that is due and payable. “Director” in section 75A has a special definition i.e. someone who is occupying the position of director (by whatever name called and includes any person who is concerned in the management of the company's business) and either directly or indirectly has control of not less than 20% of the ordinary share capital of the company.
The rationale behind this is that the separate legal entity / limited liability concept should not be used as a shield to evade liability towards employees and the tax authority.
One interesting issue is whether a director can be held personally liable for tortious acts (e.g. negligence or defamation) committed in the course of acting as director on behalf of the company. A tort is essentially a legal right to sue someone for a wrong-doing, even though the parties may not have any contractual relationship between them.
https://www.thestar.com.my/opinion/letters/...-their-epf-dutyThey must ensure that mandatory EPF contributions for their employees are made in a timely manner.
This is crucial because company directors are jointly and severally liable should the company fail to remit EPF contributions.
PS: Of course one can argue, what if directors also bankrupt?
By then, personally, i think it's beyond finger pointing liao. While i'm an employee/worker-ant only, i do sympathize with businesses where the owners/directors do their best to keep the biz going not only for themselves but also for their employees. They take on the risks & stress..
The spirit and actual interpretation (I think, as I am not a lawyer) of these laws are to make sure no foul play or ill intention.
however, when a firm goes bankrupt, this needs to go to bankruptcy court to settle priority of debts etc. Isn't this unfair to employees that their EPF contribution (from the employers) which would have been safe in EPF accounts now become part of the debt owed by the defaulted firm?
For example. Let's say with or without this program, the firm would still go belly up in Dec as the economy is really bad. No fault of the directors or the firm.
Without the program, the employees' EPF money all would be put into the EPF accounts promptly (else its a wrong doing and against the law) until the firm goes bankrupt in Dec.
Now with the program, the employees' 9 months EPF contribution (which is practically 1 month pay = 12% x 9 months) is gone. How to sue the employer? is this fair to both employee and employer?
This post has been edited by Wedchar2912: Mar 29 2020, 07:48 PM