Senthilkumar’s salary claim didn’t end well for him. It went all the way to the Employment Claims Tribunal which found against him on 1 March 2019.

In a nutshell, his claim was that the payment vouchers he was asked to sign (and add his thumbprint to) had amounts that didn’t match the cash in the envelope handed to him. He explained that “the usual company practice” was to sign the vouchers even though the salary would not be issued till some time later. Each month he would be shortpaid by an amount between $700 and $1,400. He also alleged that the company’s record of his overtime work was incorrect as he often worked later than recorded.

Kumar was asked to sign and thumbprint the company’s salary vouchers

Senthilkumar joined Arsu Contractor Services Pte Ltd in June 2018. His claim was for shortpayment of salary in June, July, August and September of that year, and non-payment in October.

Unfortunately, signed and thumbprinted documents carry a lot of weight and the bar for overturning them is set high.

But the salary was paid in cash and delivered separately in an envelope. In his claim, he said the cash amounts fell far short of the voucher amounts.

There was a point during the hearings when Senthilkumar felt upbeat. A former co-worker who had since left the company flew back from India to testify for him. The witness told the court that in his case too, salary vouchers had to be signed and cash delivered later. Senthilkumar hoped thereby to convince the court that his version of events was credible.

Then things began to go very wrong. Senthilkumar and his co-worker made a hash of the details. The judge also noted that at one point the witness contradicted Senthilkumar’s claim:

Furthermore, there were inconsistencies between the witness’ evidence and the claimant’s own calculation sheets. For example, the witness asserted that the claimant only had one rest day a month, but the claimant’s record showed that he had regular rest days every week….  I find that the witness had a tendency to exaggerate or inflate the claimant’s working hours, and therefore did not find him to be a credible witness.

— Oral grounds of decision

Then Senthilkumar undercut his own credibility.

Even though the claimant may have been able to show some inconsistencies in the evidence of the Respondent’s witnesses, in the course of his cross-examination of them, he started to embark on a line of questioning that revealed that he had worked night shift on a number of occasions. According to him, night shift would begin at 7pm and then end at 9am or so. He then tried to rely on one of the Respondent’s witnesses’ admission that he had seen the claimant work night shift to show that the witness could not be believed. But at the same time, a serious issue was raised in relation to the claim was that none of his calculation sheets which were relied upon as a record of his working hours, demonstrated that he had ever worked night shift.

— Oral grounds of decision

Ultimately, the magistrate said that there was insufficient credible evidence provided by Senthilkumar to prove his claim.

There were two statements by the magistrate in his decision that should cause concern.  The first followed the quote above regarding night shift. The magistrate had asked Senthilkumar why his own record of work hours did not show any night shift.

When questioned, he stated that he was confused about the filling up of the MOM calculation sheets. However, even if he may have been confused at TADM, the claimant had not sought to amend his calculation of overtime hours at any point in time after filing his claim, whether at the case management conference or at the hearing.

— Oral grounds of decision

There is one huge assumption behind the magistrate’s comment: it is that low-skill workers with poor education and weak English even know that that they can amend something they had submitted, or that they even have the self-confidence to ask how to do it. At TWC2, our sense from working similar cases is that MOM and TADM officials do not generally ask workers to check their calculations or offer to have mistakes amended. The magistrate should not have given that much weight to this discrepancy.

The second part of the decision that raises concern is where the magistrate gives weight to his finding that Senthilkumar could not provide “objective evidence” that he raised the salary issue with his employer.

I found it difficult to accept that the claimant would merely have gone along with the flow in spite of knowing that by signing off on the voucher, the signed voucher would be used thereafter as evidence that he had already received the amounts as stated therein. Perhaps this may be accepted if it had been a once-off incident, but to do so continuously for four months was quite a different matter…. There was no objective evidence to show that the claimant had raised this as an issue with the company… in spite of receiving salary which was so much lesser than what was stated in his salary vouchers every month. His failure to raise this as an issue to the company at an early stage, in my mind, cast some doubt over the veracity of his claim.

— Oral grounds of decision

Magistrates presiding of employment claims should be more aware of the fact that almost all work permit holders have to pay handsome sums of money to get jobs here. It’s a sunk cost that a worker would not want to jeopardise by souring relations with his boss. When salary payment is short, the worker is faced with the dilemma of (a) raising the matter, thereby antagonising the boss, which could result his being fired, or (b) hoping that it’s a temporary cashflow problem for the company and over time, the short-payment would be made up. Option (a) leads to a definite loss of the sunk cost invested in the job, whereas option (b) still keeps hope and the job alive.

The rational choice would be option (b).

But as seen in the above comments by the magistrate, Senthilkumar’s rational choice is being held against him. The court seems to expect workers to choose the irrational option — raise the matter with the boss the very first month there is short-payment — and, at the first opportunity, throw away their sunk cost (and face a possibly long period of unemployment) in order to succeed in their claim.

In Senthilkumar’s case, he started work with the company in June. Immediately, salary shortpayments began, as he alleged. To expect him to raise the issue within a month and promptly lose his job is really very harsh. He would have been loathe to write off what he had paid to get the job.

Moreover, when the magistrate said “His failure to raise this as an issue to the company at an early stage,” counted against him, one should also query what is meant by “early”. By implication, the magistrate meant something like the first or second month after shortpayments began (which in Senthilekumar’s case would be the same as the first or second month after starting with the company). In Senthilkumar’s case, he filed a claim about five months on. Is that early or is that late? A fuller understanding of the circumstances a foreign worker is in, would call into question any simplistic definition of “early”.

Secondly, for the court to expect “objective evidence to show that the claimant had raised this as an issue with the company” is also misguided. Justice systems must be sensitive to social class and not assume that everybody enjoys middle-class privileges. A middle-class employee might raise the issue by sending an email which would constitute “objective evidence”, but a manual worker without easy access to digital technology would simply ask orally — if at all he were prepared to jeopardise his sunk cost. Asking orally does not produce any “objective evidence” unless the boss comes to the court to confirm that the worker had raised the question. But such an admission could undermine the company’s defence of having paid the full salary, so why would a boss admit such a conversation to the court?

It remains theoretically possible for a worker to bring a witness who overheard his conversation with this boss about owed salary, but here again reality has to be taken into consideration. Firstly, there might not have been any witness to the conversation.  Secondly, if such a conversation occurred, it would likely have occurred in the company office or worksite. The person overhearing the conversation (and potential witness for the claimant) would likely be another company employee. Would this employee then testify for the worker, and against his or her own employer?

To demand such evidence is to set a bar so high that the principle of a level playing field is called into question.