Sarkar Robel finds his salary in a time warp

Posted by on May 30, 2018 in Articles, Stories

The main part of this story is based on an interview in November 2017, when the outcome was hard to predict. The postscript was written in April 2018 after the case had concluded.  

The narrative hinges on dates. As you read it, pay close attention to the dates.

On Thursday, 16 November 2017, Sarker Md Robel came to see TWC2 social worker Alfiyan in our office. Robel turned on his phone to show Alfiyan photos he had taken of several payslips. The earliest was for the month of May 2017. The latest was for the month of May 2019.

How could Robel have a payslip — and a signed one too — for 18 months in the future?

Here’s an example of one of those photographed payslips — for the month of December 2018. It clearly has the employer’s name “Tiong Huat Projects”; the dates are repeated at several places; an amount of $1,600 in basic salary; a blank where overtime pay is supposed to be filled in; and Robel’s signature at the bottom right corner.

All the other payslips have the same layout and the same “Nett pay” of $1,600. Only the dates are different.

When were these payslips drawn up?

“I started this job on 18 April 2017,” says Robel to your writer. “Then on 20 April, the boss ask me to go to the office, and he ask me to sign about 27 [pieces of] paper.”

Each sheet had “many writing” on them, he explains, “and I say I want to read carefully.” But the boss said he was in a hurry and that Robel should sign them quickly. If not, he (the boss) would take it to mean that Robel wasn’t interested in the job anymore and Robel would be sent home to Bangladesh. (The foregoing is based on Robel’s account of the event.)

Having paid $3,100 to get this job, this would be a financially ruinous outcome. So Robel signed the sheets of paper. However, whenever the boss was not looking, he snapped a picture of whichever sheet was open in front of him, managing to take pictures of nine sheets. One was dated May 2017, seven were dated various months of 2018, and one dated May 2019 — the last sheet. Fortunately, nearly all were well taken, with details sharp enough to read. The dates are incontestably visible.

Robel did not get his salary over the next six months.

There was work. “Up to July (2017),” he explains, “have overtime every day even. Sometimes work up to 7pm, sometimes 10pm. But boss not pay salary.”

However, work dried up in August and September. He was assigned work on only eight days in August and twelve days in September. More crucially, he was getting extremely frustrated about non-payment.

It wasn’t that he received nothing at all. The boss did pass him a bit of money now and then, sometimes directly, other times through the supervisor Islam Nazrul. On Robel’s request, the boss (name: Ken) even gave Robel an accurate accounting via Whatsapp on 2 October 2017 of how much had been paid to him to date. The total was $2,050.

After this message was received, the boss gave Robel another $100, so the final total that Robel received before he lodged his complaint with MOM later that month was $2,150.

This total was a far cry from what Robel should have received by this point in time. By the beginning of October, he had worked five and a half months, and should have been paid $8,800 (5.5 x $1,600) in basic salary alone. There should also be overtime pay, but since at our interview (November 2017), we do not have at hand any record of overtime hours, we cannot estimate how much more in overtime pay Robel should have received.

So what was the purpose of those payslips that the boss asked Robel to sign on 20 April? There can only be one plausible purpose: to fool the Ministry of Manpower should Robel lodge a complaint about unpaid salaries. In such an event, the boss must have intended to present the payslips, or at least those payslips up to the month of the complaint, as “proof” that Robel had been paid.

What the boss didn’t bargain for was for Robel to have photographs of them, all the way to May 2019. It would show up the entire scheme for what it was.

Offences under the law

Failure to pay salary monthly is an offence under the Employment Act. The penalty is a fine of between $3,000 and $15,000, with the possibility of imprisonment of up to six months.

But this incident isn’t only about failure to pay salary. It can be described as preparation to furnish false information to MOM should the authorities ask.

Section 177 of the Penal Code states:

“Whoever, being legally bound to furnish information on any subject to any public servant, as such, furnishes, as true, information on the subject which he knows or has reason to believe to be false, shall be punished with imprisonment for a term which may extend to 6 months, or with fine which may extend to $5,000, or with both;”

But there is an extension to this section of the law. The section continues by saying:

“if the information which he is legally bound to furnish respects the commission of an offence …. with imprisonment for a term which may extend to 3 years, or with fine, or with both.”

Since not paying salary is the associated offence, the latter part of Section 177 and its higher penalty will be relevant.

As at November 2017…

Our fear right now is that since the prepared payslips for the future months had blanks for overtime pay, the boss might not have bothered to maintain any record of overtime hours. If he had no intention of pay even the basic salary, would he have intended to pay for overtime work? If not, why would he take the trouble to maintain a record?

Yet, without a record, Robel may have a very hard time proving how many overtime hours he worked. Thus, even if the boss is brought to justice, would Robel get due compensation?

As at April 2018:

The case went all the way to the Employment Claims Tribunal, reaching a decision only around end January 2018.  Robel’s case was joined with that of Ali Barkat, a colleague with a similar salary claim; the tribunal heard both their cases together.

It appears that the employer, Tiong Huat Projects, presented some payslips to the tribunal in an attempt to prove that salaries had been paid, but it’s not clear whether they were from the same stack that Robel photographed. Regardless, those submitted payslips were also suspicious. According to our case notes based on Robel’s debriefing after each tribunal hearing, there was a moment when the employer laid before the tribunal magistrate a payslip for Ali Barkat dated 1 November 2017. The payslip was said to be proof that Ali Barkat had received his salary for October.

Now, Ali Barkat had been injured in an accident on 24 October. Soon after, the employer reported him missing, Robel told TWC2. So, when at the tribunal hearing the employer claimed that Ali Barkat’s October salary had been paid, with so-called proof in the form of a payslip dated 1 November, the judge asked incredulously how the employer managed to pay Ali Barkat when the man was supposedly missing. Beyond the humour in that, this suggests that an offence under Section 177 of the Penal Code (furnishing false documents to public servants) might have taken place.

Robel’s own case gave the magistrate some mirth too. At one point in the hearing Robel could prove that he worked overtime on a particular day. According to Robel, the magistrate then turned to the employer to ask why the employee wasn’t given overtime pay. The employer’s reply was something along the lines of bad weather during the middle of the day, so the extra hours were to make up for the stoppage, and thus didn’t count as overtime. The magistrate laughed, said Robel.

In the end, the Tribunal awarded Robel and Ali Barkat $6,500 each. The sum should be paid in three installments over three months. TWC2 helped the workers follow up with the employer, and we are now able to confirm that all three installments were paid.

MOM has told Robel that he can look for a new employer. He’s tried and tried, but to date has not been successful in getting a new job. He may be repatriated soon if he does not succeed.

 

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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