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On 19 October 2017, Abedin Md Jaynal spent virtually the whole day in the Employment Claims Tribunal (ECT) arguing his case. By the close of the day, it was over, and he had lost. The magistrate dismissed his salary claim.
Jaynal told TWC2 that the magistrate was actually sympathetic to his side of the case, and had said something about how she could understand that he probably hadn’t been paid his salary, but she had to dismiss his claim given the balance of evidence. Of course, we don’t know if Jaynal’s recollection of what the magistrate said is accurate.
A review of the case notes reveals an interesting story.
TWC2’s first contact with Jaynal was in May 2017, when his case was already ongoing. What he told us went like this:
Jaynal then lodged a formal salary claim at MOM for about $4,500. Initial attempts at settlement by mediation through the Tripartite Alliance for Dispute Mediation (TADM) was also fruitless. Consequently, the matter was referred to the Employment Claims Tribunal (ECT). He also made a police report.
At the ECT, the employer produced the salary vouchers that Jaynal had signed. The copies submitted as evidence to ECT had numbers on them; they were not blank. Thus the employer argued that salary payments had been made.
That left Jaynal in a difficult position. What evidence did he have that salary had not been paid? How does one prove a negative?
Jaynal had a video clip showing his hands signing blank salary vouchers. Unfortunately, the video clip didn’t show any faces. Without context, it is hard to accept the video as evidence that the vouchers signed were the same ones as later produced as salary slips or that the signing was done at the employer’s behest.
Was the ECT’s decision correct? On reviewing the facts of the case and the available evidence (for what it’s worth) TWC2 holds the view that, sadly, it is probably correct in law. We too feel that, on balance, Jaynal’s story that he was never paid for those seven months is more likely true than not, but given that the system relies on available evidence, his case was extremely weak, and the law must do as law does.
Throughout the process, TWC2 helped Jaynal assemble what arguments he could make, but we also advised him to keep his expectations low. We could see that the odds were stacked against him.
At TWC2, we believe that process has to work in objective ways, even if that means that sometimes the result may contain a vague sense of injustice. In the wider, longer-term interest, an impartial and robust process will help more workers than merely being passionate over any single case.
Nonetheless, this case raises important issues. They centre around two questions:
On the first question, much can be done, and yet, mysteriously, is not done. TWC2 has long argued that rules should be in place to mandate all salary payments to be made by bank transfer. That way, simply producing bank statements would help workers like Jaynal show that no salaries had been paid. It would make for a fairer balance of evidence at ECT.
Because TWC2 has raised this point repeatedly over the years with MOM, we more or less know what the ministry’s reply tends to be. That reply, from our previous engagements over this issue, contains several threads:
As for the second question — holding a worker hostage to levies — such a situation is so absurd that a policy change is long overdue.
*This is not the first time that TWC2 has heard this. About a year ago, another worker was in a similar situation. He told us that at MOM, someone even suggested that if he really wanted his transfer approved, could he stump up the money and pay his employer’s owed levies, please?
On 20 July 2018, MOM took issue with 2 points in this story. See here.
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