After an eight-month slog through the Labour Court, Durai wins back his overtime pay

Posted by on August 31, 2014 in Articles, Stories

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Veluchamy Duraisamy is a happy worker.  On or around 4 August 2014, he (more or less) won his case at the Labour Court. He is extremely grateful to TWC2. It might have turned out very differently without us.

Durai had to go to the Labour Court eight times to get his overtime pay, leaving the place feeling frustrated each time (until the last). When he first approached TWC2 for help about midway through the process, he was at a total loss how to argue his case, and thus was at real risk of losing his claim altogether. Fortunately, at our office, he met with Balan, a highly dedicated intern, who carefully listened to his account of the facts, drew up relevant arguments for him, and spent whole afternoons patiently coaching him on how to make his points logically and cogently.

At the court hearings, Durai had to make his arguments himself, as, unlike judicial courts, MOM does not admit external parties into its Labour Court. No one from TWC2 could speak for Durai. We aren’t even allowed to enter as observers. There is a real problem with transparency of process.

A construction worker with SLKS & Young Pte Ltd, Durai had been with them since June 2012. A good part of his job involved driving, which may account for the fact that his basic salary was contracted to be $1,420 a month, rather higher than a typical construction worker’s.  Through 2013, he was paid his basic salary, but not for the overtime hours he put in. On average, he had about 100 hours of overtime each month.

The company tried to send him home late January 2014 without paying him the overtime pay due to him.

Durai also complained that $1,000 had been deducted from his salary for ‘renewal money’ — to renew his work permit. However, this was documented as repayment of a salary advance — which he had not taken.

Together, he felt that he was owed about $18,000 for the twelve months January to December 2013. It would have been more but since MOM does not permit salary claims that are more than 12 months old, Durai couldn’t claim for short-payments dating from 2012.

At the Labour Court, the employer first argued that the owed overtime for all the previous months had been paid on 26 January 2014. The money was passed to a certain Gurnasib Singh at Tampines dormitory. To ‘prove’  that it had been paid, the employer presented as evidence a number of payment vouchers which carried no signatures at all. Unsigned payment vouchers can easily be created after the fact — something that TWC2 taught Durai to point out to the court.

The employer also said there were five witnesses to the payment. However since these so-called witnesses were also employees of the company who could be expected to be keen to keep their jobs, it is hard to believe that their testimony could be independently truthful.

Amazingly, the employer also argued that Durai wasn’t really entitled to overtime pay. A worker would only be entitled to overtime pay, said the employer, if he performed manual labour. In Durai’s case, he was more often than not, driving. Of course this was completely contradictory to the first assertion that the full sum was paid in January. If the employer’s position was that he wasn’t entitled to overtime pay, why did he also claim that he was actually paid?

Although it may seem obvious to anyone that the employer’s position was not credible, for a foreign worker like Durai without full command of English, it can still be difficult to rebut. Moreover, that the Labour Court would adjourn again and again despite hearing such absurd arguments made him lose confidence.

At TWC2, Balan helped him write out the rebuttal arguments, then slowly rehearsed them with Durai. It helped that Balan spoke Tamil fluently — Durai’s native language.

Aide memoire notes prepared by TWC2 for Durai to help him argue his case at the Labour Court

Aide memoire notes prepared by TWC2 for Durai to help him argue his case at the Labour Court

Eight months after losing his job and lodging his claim, Durai finally received satisfaction.  The court awarded him all the overtime he was owed (based on the court’s own calculations), but did not award him repayment of the $1,000 that had been deducted for renewal of his work permit.  Such a deduction is illegal, but TWC2 has often seen employers take pains to avoid documentation of deductions, making it difficult for workers to prove what is otherwise an open secret.

On 16 August 2014, about two weeks later, Durai received the cheque for the awarded amount (less about $300 for income tax).

The positive outcome notwithstanding, it should still be noted that Durai had to wait eight months and attend court numerous times to get to this result.  In those eight months, he was on a Special Pass issued by MOM that did not allow him to take up any other employment. This is part of the institutional bias against workers, making it costly and painful for them to pursue their rightful claims. If the case were to drag even longer, how would a worker afford the wait?  Would the cost of staying on in expensive Singapore be so prohibitive that he’d give up his claims halfway through?

Despite the case eventually vindicating Durai, many questions about the process are raised by his experience. Furthermore, it remains to be seen whether the prosecution branch of MOM will act on the Labour Court’s findings and prosecute the employer for not paying overtime salaries promptly.

 

 

TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our
means.

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