On 23 February 2022, the Financial Services Tribunal (FST) reinforced that an employee who does not have a “complaint” as provided for, in section 30A of the Pension Funds Act,1956 (PFA) cannot have recourse under the PFA.
The fact of the case are:
- The applicant was employed as a truck driver by during the period February 2013 to January 2020;
- The applicant took a severance package and sought severance benefits from the Transport Sector Retirement Fund (“Fund”) on the assumption that his employer was a participating employer and contributed to the Fund. To the applicant’s surprise, the employer had not been participating in the Fund nor any fund;
- The applicant lodged a complaint with the Pension Funds Adjudicator, ordering the employer to register him with the Fund and to provide particulars of all contributions that should have been paid to the Fund and for the Fund to then pay the applicant his withdrawal benefit; and
- The Adjudicator determined that it did not have jurisdiction to make an order.
The applicant was dissatisfied with the Adjudicator’s determination and launched an application for reconsideration before the FST. In considering the application for reconsideration, the FST said that the main object of the Adjudicator is to dispose of complaints lodged in terms of section 30A(3) of the PFA. Section 1 of the PFA defines a complaint to mean a complaint of a complainant which relates to the administration of a fund, the investment of its funds, or interpretation and application of its rules. The complaint must allege that the employer who participates in a fund had not fulfilled duties in terms of the rules of the fund. The FST held that the applicant’s complaint is not one envisaged in the PFA, because he was not a member of the Fund and his complaint did not relate to the administration of a fund where his employer participates.
The position adopted by both the Adjudicator and the FST emphasises that, prior to lodging a complaint, it is vital that the jurisdiction of the body be interrogated. In considering the applicable complaints mechanism it is important to determine whether the issue falls within the jurisdiction of the Adjudicator or would be better served before a court.
This has yet again been emphasised by the FST in the ruling of the matter between Erick Sibusiso Hlongwane v PFA Others.