Continued from part 1.

Kabir Mohammad Sana Ulla Miah got a reprieve. At the request of a senior officer of the Ministry of Manpower, TWC2’s social worker contacted him just as he was despondently packing his bag to go to the airport, and told him he should not board the plane. There was a new glimmer of hope that he would get the $2,439 that MOM had said the employer owed him. About half of that sum was for an injury to his big toe suffered at work; the other half was for medical leave wages.

The MOM officer had told TWC2 that the employer’s $5,000 bond had not yet been returned to him, and could stand to be forfeited. The threat to forfeit the bond might be one way to get the employer to pay Kabir what was owed.

However, there was no way that any part of the $5,000 could be used to pay Kabir. MOM has always maintained that the bond money was “government money” and could not be applied to employers’ liabilities.

By the next morning, however, when Kabir showed up at MOM to have a Special Pass re-issued, the game plan had changed again. No one mentioned to him anything about threatening forfeit of the bond money. Instead, and with great difficulty because Kabir’s English was extremely limited, an MOM officer explained to him that he had two choices:

1. He could rely on his lawyer to sue the employer for payment under “common law”;

2. MOM could threaten the employer with prosecution under Section 40 of the Work Injury Compensation Act (WICA) — explained below.

For another week or more, Kabir did not make any clear decision. One day, he would lean one way, another day, he would lean the other.  It was frustrating for the TWC2 social worker who was overseeing his case. This was despite Kabir himself saying several times that his lawyer was no longer interested in helping him. “Lawyer say cannot do anything,” he reported to TWC2.

One possibility is that the lawyer might not have thought a fee of  ten percent (the usual rate) of the amount being claimed ($2,439) was worthwhile for the effort of pursuing a civil claim in court.

So why didn’t Kabir plumb for the second option — MOM prosecuting the employer? This is where one gets into many other contextual issues. Firstly, foreign workers generally have little faith in MOM. There is a widespread perception that MOM officers are mostly unhelpful, or biased in favour of employers. Secondly, TWC2 has seen that among workers from India and Bangladesh, there is an inordinately high regard for lawyers. They conceive of these professionals as being powerful, protective patrons, seen through the lens of social rank.

The third problem was that the Section 40 option was full of ifs and buts. Even TWC2 was not sure if the threat of prosecution would pay off, what more on Kabir’s part? He could well have sensed the very contingent way in which MOM and TWC2 explained Section 40 to him and also found himself totally bewildered by the technicalities.

What does Section 40 of WICA say?

First of all, one has to bear in mind that failure to buy work injury insurance (as was the case with Kabir’s employer) is an offence under Sections 23 and 35(1) of WICA. Then Section 35(2) provides that any employer who fails to pay compensation as determined under the WICA process is also guilty of an offence.

Next, Section 40 provides that such a convicted employer may also be ordered by the court to pay the compensation to the employee.

So far so good.

But there is a line in Section 40 that says that if the employer still defaults on that court order to pay compensation, he will serve jail time, but once he has served jail time, his liability to pay compensation is expunged.

So even if MOM goes through the trouble of prosecuting Kabir’s employer and asking the court to order him to pay compensation, this employer (who has already defied MOM’s earlier order to pay compensation) can choose to serve jail time instead of paying Kabir. And Kabir would again be left with no compensation — legally.

For all these different reasons, it was painful to watch as the poor man, with not much education, stewed in confusion and indecision. He wanted his lawyer to get him his money, but his lawyer couldn’t or wouldn’t act. The alternative — action by MOM — he didn’t quite trust, and anyway people kept telling him it might not work.

As for the original idea to leverage the $5,000 security bond to get the employer to pay up, it had dissolved in the swamp.

On or around 31 July 2012, about a week after telling Kabir that he should not board the plane, MOM counter-staff refused to further extend his Special Pass. The poor man came to TWC2 half crying. His lawyer was spurning him, he said, and MOM — which had ordered the compensation — was now wanting to push him out of Singapore without him collecting it.

Another flurry of calls and emails were made. A further week’s extension was arranged.

And then out of the blue, MOM arranged for a cheque (a donation?) of $1,000 from Migrant Workers Centre, an affiliate of the National Trades Union Congress.

It’s all very well that MOM’s senior officers acted with compassion over Kabir’s case, and the $1,000 cheque was no doubt welcome, but one is left stumped considering that, for all their legal and investigative powers, the ministry ultimately had to rely on charity!

There should be no need for charity if there is enforcement. Why is the system so broken?

MOM itself paid for a new airticket. Kabir went home on Thursday, 16 August 2012.