THE High Court in Suva has ordered the immediate removal of a Departure Prohibition Order (DPO) against the director of Pacific Specialist Healthcare, over alleged unpaid contributions amounting to more than $1million on its locum doctors.
The Fiji National Provident Fund had raised a debt for outstanding contributions against PSH, where the plaintiff, Parvish Nikesh Kumar, is a director and shareholder of the hospital.
As part of the recovery of the debt, the FNPF’s CEO issued a DPO against Mr Kumar, preventing his departure from Fiji.
Court records show that on April 3, this year, an FNPF inspector attended PSH’s premises to conduct an inspection. The following day, the inspector sought PSH’s wage records for the locums, which were supplied by the hospital.
On June 6, FNPF issued a notice to PSH claiming outstanding contributions for the locums for the period from 2021 to 2025, in the amount of $1,049,391.54 plus penalties of $145,400.
The company was advised it was required to pay these sums within seven days of receiving the notice; PSH received the notice on June 10.
According to Mr Kumar, PSH has paid its FNPF contributions for its full-time employees but has not made any contributions to the locum doctors.
He submits the locums were employed on a service contract and, thus, not treated as employees and that PSH paid provisional tax to the Fiji Revenue and Customs Service (FRCS) for the locums.
He submits that the locums had withholding tax deducted from their payments. Three days later, PSH requested information pertaining to the debt, which was supplied by FNPF on June 17.
PSH engaged solicitors and auditors to advise it on the debt and sought an extension of time to consider its position.
On July 23, the CEO of FNPF issued DPOs against all the shareholders of PSH, including the plaintiff, informing the Director of Immigration of the same. They were issued on the basis that each was a director of PSH.
On August 25, a copy of the DPO against the plaintiff was emailed to him.
Mr Kumar resides in both Fiji and New Zealand. At the time the DPO was issued, the plaintiff was in New Zealand.
In his ruling, Justice Dane Tuiqereqere concluded that the issuance of a DPO was not a debt collection tool.
“There are tools available to the defendant to recover unpaid contributions, as contained in sections 108 to 112 of the FNPF Act,” Justice Tuiqereqere ruled on November 28.
“The defendant has not exercised these remedies, instead confining himself to issuing (DPOs) against the shareholders of the employer company, PSH.
“This, of itself, suggests that the defendant is using (DPOs) as a debt collection tool to place pressure on the shareholders to pay the alleged debt.”
In the present matter, Justice Tuiqereqere said he was not satisfied that Mr Kumar was personally liable to pay the debt of PSH pursuant to s116(2).
“Even if I am wrong, I am also not satisfied that the CEO of FNPF had a reasonable basis to believe that it is desirable to issue a DPO against Mr Kumar.”
FNPF is also ordered to pay $2500 to Mr Kumar.
