Shamim (left) shows TWC2 all his papers
In injury cases, Transient Workers Count Too has long warned about the dangers of relying on testimony from co-workers who are dependent on the same employer for their livelihoods. They may have been witnesses to an accident but when called to testify, but they may also be acutely aware that if they said anything that their bosses do not want said, they would likely lose their jobs.
As a result, many injured workers who think they have a good case for compensation discover that co-worker witnesses tell the Ministry of Manpower, the Labour Court or even judicial courts, quite a different story.
Singapore law gives employers total freedom to terminate employment of any employee, particularly migrant workers. No reason need be given. Therefore it is very easy for employers to exert pressure on their workers to refrain from telling investigating or adjudicating authorities the whole truth. Even if overt pressure is not applied, foreign workers know very well what is expected of them when called to give an account of what they saw.
Shamim’s case hits roadblock
Shamim came to TWC2 for the first time in September 2019. By then, it had been eleven months since his accident and the Ministry of Manpower (MOM) had made a preliminary finding that his injury was not work-related and compensation would therefore not be payable under the Work Injury Compensation Act. TWC2 helped him review his evidence to help him focus on the salient points in order to rebut MOM’s finding.
He had been injured at around 11am on 29 October 2018. He was part of a team of workers carrying a large, heavy pipe. According to Shamim — and he has been saying this quite consistently to various doctors since the start — other workers released their hold or put down the pipe without warning. The entire weight of the pipe momentarily went onto Shamim’s left shoulder.
Instantly he was in pain, and had to carried by two co-workers, Mostafizur and Kobir, to the safety officer’s hut. There he was attended to by the Safety Officer Shahidul and a company nurse named Vijaya.
Kobir was also part of the team carrying the pipe.
Vijaya took Shamim to see a doctor at a clinic in Simei the next morning. Part of the doctor’s report to MOM is extracted above in the header. It details his clinical findings. He wrote:
tender when palpating the C-spine and upper thoracic region
multiple tender spots when palpating the left neck muscles/scapular region
shoulder joints nomral bilaterally
The doctor ordered an MRI scan which was done the day after. There is no need to get further into the medical details. The point that is clear by now is that there is enough to show that an unexpected incident happened. Shamim had to be carried by two persons to the Safety Officer’s hut. The nurse judged that he should see a doctor. The doctor found tenderness in “multiple” places, and usually tenderness is a sign of an acute event. The doctor was concerned enough to order an MRI. It is thus hard to say that Shamim didn’t suffer an injury of some sort at around 11am on 29 October at the worksite. Whether it was a serious injury, or whether any permanent disability followed from it are of course separate questions. But an accident seems to have happened.
A recent High Court judgement (see our article High Court says MOM’s Assistant Commissioner had a “fundamental misunderstanding” of the work injury law) made clear the standard. If an accident occurred while at work, it shall be considered to be “in the course of work”. This then triggers a presumption that the accident “arose from work”. A counter-party (typically employer) has to show that it is absolutely not related to the employment before this presumption is overcome. Even if (as in the our cited article) there was a pre-existing medical condition, should any trigger for aggravation of the pre-existing condition happen at work, it should still be considered an accident that arose from work.
In light of the above, MOM’s finding in Shamim’s case that the injury was not work-related appears out of alignment with case law.
The phone call
The main point of this article, however, is a phone call made by Kobir to Shamim a few days before Shamim consulted us. Shamim had recorded the conversation, which lasted about 5 minutes.
It being in Bengali, we asked a native Bengali speaker to listen to it and tell us the key points. It’ll be too cumbersome to provide the full transcript here. Three main points seem to have been made by Kobir in the conversation:
- Kobir took issue with one detail. Shamim had said that he (Shamim) carried the pipe on his left shoulder, but Kobir said that was not true, Shamim was holding the pipe with his hands.
- Kobir then went on to say that their employer was not a small company. Being a large company, it had resources and Shamim was unwise to try to take the company on by making a claim against it.
- Kobir added that Shamim had not sought permission from the company to commence an injury claim against it.
That should strike anyone as a rather strange conversation. To make sense of it, one has to think about intent, and read between the lines.
It suggests that Kobir has been interviewed by MOM for his account of the event. Point 1 indicates that Kobir confirmed that the event occurred, even as he disputed the way the pipe was being carried. Shamim, however, maintains that the pipe was on his shoulder. He also added, after playing the recording to us, that Kobir’s position while carrying the pipe was in front of Shamim, so how could Kobir see how Shamim was carrying it?
Points 2 and 3 suggest that Kobir was racked with a guilty conscience after providing testimony to the investigators unfavourable to Shamim (and favourable to the employer’s case). One hears an attempt to morally justify what he had done. There is a shifting of moral blame from Kobir himself to Shamim for bringing on whatever was going to befall Shamim; that is was Shamim himself who chose to do something unwise and unpermitted. No other interpretation of the conversation makes sense. The notion that Shamim should have sought permission from the employer to make a claim is so wrong that it compels us to ask “Why does he even say that?”
It’s rare that we get anything so close to a confession by a co-worker. But an understanding of the power asymmetry between employers and migrant workers will tell us that the predicament faced by Kobir that led him to such a difficult choice should caution us to treat any co-worker’s testimony in favour of the employer — in any other case — with extreme caution.
It seems to TWC2 that the courts are becoming alert to this, but the officials at MOM are slower.