A worker with a salary claim (he is not the ‘Memphis’ referred to in the article below) shows us the WhatsApp messages he’s exchanged with TADM.
By TWC2 volunteer TSB who assists workers with their salary claims.
Memphis (name changed) had been working for his employer since 2016 as a supervisor/foreman. Like many other migrant construction workers he worked long hours – 12 hours or more was not unusual. He had been pressing his employer to pay him for his overtime work but, from what he tells me at some length, was essentially just stonewalled. The issue of overtime pay eventually led to the parties falling out, and on 3 August 2020 his employer WhatsApp’ed him saying he “will be on unpaid leave from 2moro onwards until further notice…”
That “further notice” eventually came on 7 September 2020, when he is summoned to go “do some ceiling work” in Hougang. He asks for another meeting with his employer and tries again to ask for overtime pay. He had no joy, so decided not to go to Hougang as summoned. He decided to go to MOM instead to report his salary issues. Meanwhile, his employer sends more WhatsApp messages demanding that he report for work on a Sunday, or face disciplinary action. That’s right, dear reader, one month he’s summarily put on unpaid leave, next month he’s told he has to work on his rest day. — as though he was a spare battery pack left in a drawer for emergency use. Credit to Memphis, he has enough self-respect to ignore the demand and threats. The voice messages left a few days later, however, are a little harder to ignore…
[Memphis], I’m giving you one last warning ah. You better return my call, or answer my call when I call you. You better return my call, OK? If not you make until I go up to your house and find you ah, things will not be very nice ah. I repeat again ah, you better return my call.
If you make me, uh, go until your house and find you, hor, it will not be a very nice thing already I tell you.
“If he’s so unhappy with Memphis why doesn’t he just serve a notice of termination or cancel his work permit?”, I wonder. But there are more pressing issues at hand, specifically the progress on Memphis’ salary case. He had submitted his disputes to the Tripartite Alliance for Dispute Management (TADM) for mediation before approaching TWC2 with his concerns, and has already had contact with both his mediator and his employer. We catch up on where he’s gotten to.
Amongst other issues, Memphis tell me that his mediator had informed him that his timecards could not be accepted as evidence, because he had written and signed off on these timecards himself . He therefore couldn’t/shouldn’t (I’m still not clear which) claim for overtime he performed in 2020, leaving him with a claim for only his 2019 overtime, for which he had payslips showing that he had been paid meal allowances when he worked late. Neither could he claim any salary for August 2020, because he had been paid for the few days he did work and had agreed to take “unpaid leave” for the rest of the month (or so he’s told). In the days to come these two issues – his 2020 overtime, and August 2020 salary – would be the ones that took up most of our time and attention.
Memphis shows me an app on his phone which his employer required him to use to “clock in, clock out” his attendance at work. He had painstakingly taken screenshots from his phone of a whole year’s worth of these records. He wanted to use them to claim for his overtime for both 2019 and 2020. He also denies agreeing to take “unpaid leave”, showing me the WhatsApp message sent by his employer on 3 August 2020 (see above). Meanwhile, his mediator has set him a deadline to submit his calculations of 2019 overtime. After some discussion, we agree that I should would help him calculate his overtime for both 2019 and 2020, and draft a response to his mediator clarifying what he wishes to claim for.
We meet again a few days later to review these calculations and the draft response to his mediator, which reasserted Memphis’ claims to overtime pay for both 2019 and 2020, as well as his salary for August 2020 in the absence of any evidence of the alleged agreement to take “unpaid leave”. He’s happy with both, and they’re emailed off to his mediator.
A response comes back from his mediator that very afternoon. On the issue of his 2020 overtime, his mediator writes:
We have established that these records may not be taken into consideration due to the below reasons;
1) These records are signed off by yourself (i.e you write, you sign off)
2) These extra hours are not approved by the Company….
… you do not have any documentary proof to show that for the past year (with the exclusion of the 5 months), Company has asked and given you the approval for you to work the overtime.
In accordance to Singapore Employment Practices, which has become a norm, employees will need to obtain Company’s approval before overtime may be performed; …
In response to an amendment by Memphis of the details of his dispute with his employer for extra pay for working on public holidays, the mediator also writes:
… there is only 1 [pulic holiday] claimed during case lodgement; 28/10/2019, not 3.
Similary (sic), this claim has been verified with you over the phone and during the mediation session and you have agreed.
This is not what was initally (sic) lodged.
This may constitutes (sic) fake declaration under claims lodgement for you have understood and declared with our officers below.
Please do not add in more claims.
“Have I totally lost the plot?”, I wonder. Is TADM saying that after an employee has been asked/made by his employer to do overtime work, the employee will still have to obtain documented approval in order to claim for overtime pay? Who is the “We” who “established” that Memphis’ overtime work was “not approved by the Company”? Where are these “Singapore Employment Practices” spelling out the “need to obtain Company’s approval” to be found? What law prescribes that seeking to amend the details of a mediation request previously submitted could amount to a “fake declaration”? Who decides when an employee has made a “fake declaration”?
I check the relevant section of the Employment Act; overtime done at an employer’s request is reimbursable, but there is no stipulation for documented approval. Whether overtime work was done at an employer’s request is decidedly a question of fact. Memphis had been working for his employer since 2016 and had never been paid for overtime – would he then have been working overtime voluntarily? It seemed unlikely. Nevertheless I put the question to Memphis. “No”, he replies calmly. His employer is a renovations contractor and they have to follow planned schedules for the completion of renovation projects. He had to work whatever hours were necessary to ensure that projects were completed on schedule. That was what his employer not merely requested but required. As supervisor he would be the last person in the team to finish work each day as he had to send photos to his employer to report on the completion of assigned jobs.
After hearing him out, I puzzle over how he is to satisfy TADM that he had his employer’s approval to do overtime work, and eventually come to the conclusion that such approval must be implicit if his employer had in fact requested or required him to work overtime. And whether they had done so was a question of fact which should be left to the Employment Claims Tribunal (ECT) to adjudicate, if matters so came to pass. I draft another response for Memphis along those lines and let him read it for himself – he’s one of the rare few migrant workers I encounter who is able to speak and read English quite well. He nods his approval, and I click “Send”.
Later Memphis was to show me a WhatsApp message which left me dumbfounded. He had sent a message to his mediator saying that he “thinks” his basic salary is $2,000 per month, to which the mediator replied:
Firstly, in a mediation case, words like “i think” is not very credible.
We will base on hard fact evidences to make judgements.
WHAT??? Who is the “We” who will “make judgments”? If “We” means TADM and TADM is there to “make judgements”, what then was the purpose in constituting the Employment Claims Tribunal?
The following Monday Memphis messages me; he is at TADM attending a mediation session and has come to terms with his employer – payment of a sum of money by this Friday plus one month’s time to find another job. I message back telling him to expect to sign a settlement agreement documenting these terms. Some minutes later I am totally taken aback by a photo he sends me; the photo is not of a settlement agreement but a form stating he has withdrawn his claim because he has received the agreed sum by bank transfer. Hold on a sec – wasn’t the monies only to be paid by Friday? Memphis confirms this, and that he hasn’t yet been paid. I message back in desperation – tell your mediator you want boss to sign settlement agreement with you. You want to register this agreement with the ECT. We advise this because such settlement agreements have to be registered with the ECT to convert them into enforceable orders to pay, to guard against the payer defaulting on promised payment.
Too late, he tells me his employer had already left. I am left holding my head in despair – now we can only hope that the employer will keep to their word…
A (Lengthy) Post Script by the author…..
Happily, Memphis was later to confirm to me that he had received the monies from his employer. He is now on the hunt for another job. That’s another path that can be fraught with peril for migrant workers, but not one that I can walk with him…
Having now relived by recounting my experience working on Memphis’ case, I feel compelled to address TADM directly through this article, in the vague hope that someone there might be reading this.
1. Here at TWC2 we have been helping claimants submit supporting documents for their claims to the ECT for as long as the Tribunal has existed. Claimants have on occasion asked us to help them submit those timesheets which you hand out claimants for them to calculate how much is owed, in which they handwrite their hours worked. These timesheets are not even signed by the claimants but to our best knowledge has never been ruled inadmissible as evidence. So, unless you are aware of a specific rule of law that bars the admission of some particular material as evidence for a claim at the Tribunal, could you kindly refrain from telling claimants what can or cannot be used as evidence and leave adjudication on the admissibility of submitted evidence to the Tribunal?
2. If nevertheless you still consider the giving of opinion or advice as a legitimate part of your function as mediators, could you perhaps consider:
(a) advising parties that employers are required by s.95 of the Employment Act read with regulation 4 of the Employment (Employment Records, Key Employment Terms and Payslips) Regulations 2016 to keep records of the hours worked by employees each day and that, by s.21(1A) of the Employment Claims Act 2016, the Tribunal may draw adverse inferences should such evidence not be available on account of the employer’s failure to comply with the requirement to keep such records?
(b) given that employers are obliged to keep records of their employees’ working hours, inviting the employer to produce such records if you consider what the employee has produced to be inadequate?
3. You advised an employee that his self-written/signed timecards could not be used as evidence to support his overtime claim. Do you, and did you in this particular case, also advise employers that they should substantiate with evidence any allegation that their employee had agreed to take unpaid leave? Or would a mere assertion by the employer suffice for you to accept that parties had in fact come to such an agreement?
4. Could you clarify when you might find an employee to have made a “fake declaration” and what law(s) empowers you to make such findings?
5. Why did you have an employee sign a claim withdrawal form when the employee had not yet received the promised payment? What polices and/or practices do you adopt for the execution of settlement agreements and claim withdrawal forms?
Thank you for reading this. I’d be happy to dialogue.