Hossain Mohammad Monoar visited TWC2 in late April 2021 telling us that his employer was demanding a change in the terms of employment in two main ways: adding a two-year bond and requiring a pay cut of $200 a month. And this was only one week after he had started work.
He was told that if he did not accede to these new terms, they would cancel his work permit and send him home.
The Employment of Foreign Manpower Act states that when a work permit is cancelled, the work permit holder must be repatriated unless the Ministry of Manpower (MOM) directs otherwise. It does not matter whether it’s because the worker resigned or he was fired; he has to go home. It does not even seem to matter whether the employee was fired for just cause or out of spite.
There is no established mechanism to permit such prematurely-terminated employees to seek other jobs without being repatriated, although one might think a chance at another job is only fair. The only exception that is somewhat routinised springs from a statement by then-Manpower Minister Lim Swee Say to Parliament on 11 September 2017. He said, “All foreign workers with valid salary claims are allowed to change employers”.
Three years later, on 2 March 2020, Lim Swee Say’s successor as Manpower Minister, Josephine Teo, told parliament that Work Permit holders “whose contracts are terminated by their employer for refusing to provide consent [for salary reduction] should seek help from MOM. MOM allows such [Work Permit holders] to find a new employer and we work with the Migrant Workers’ Centre to facilitate the process.”
This undertaking however, has not been operationalised. We will be writing further about this inconsistency between a minister’s words and actual processes at MOM in another article.
Even so, being permitted to look for a new job — whether based on Lim Swee Say’s or Josephine Teo’s words to parliament — remains a matter of administrative discretion, not of right, and no worker can rely on it. Consequently, employers can easily leverage workers’ fear of losing their jobs and not being able to get a new one to compel workers’ submission to unreasonable demands. Loss of a job can bring severe costs — write-off of the recruitment fee he had paid and loss of income for several subsequent months of unemployment.
Even if a worker is determined to fight for justice, the cost on him will be high. Current procedures typically mean the worker is placed on a Special Pass after his work permit is cancelled, and he is not allowed to work until the case is over — which could be several months later. And then, he is subject to administrative discretion whether he will get a chance to look for a new job.
Monoar thought he would be happy to return to same employer
Monoar’s story actually began four months earlier. In December 2020 and while still in Bangladesh, he exchanged a number of messages with the human resource lady at SH Design & Build Pte Ltd, in which they agreed he would re-join the company on the same salary terms as before. The company then applied for an In-Principle Approval for a Work Permit (see Glossary) and it was approved.
Monoar had been with the same company in late 2016. Then, it was his first job here, he said, and he had paid 380,000 Bangladeshi taka (about $6,500) for a bit of basic skills training, followed by a further $5,500 to a recruiter to land that job. The basic salary was only $432 a month in 2016. It would be the same salary in 2020/2021.
He stayed with the company and its sister company Soon He for a total of three years. In February 2020, he decided he should go home to see his family. Then Covid-19 came and borders were closed.
Thus, it was with more than a little elation that he was invited to re-join the company in December 2020, when borders were opening again.
However, he had to wait another three months before getting here. Even though the IPA had been approved, the employer still needed permission to bring Monoar in. To better manage the risk of imported infections, Singapore restricted the number of workers who were allowed to enter. At one point, the IPA expired and had to be renewed.
Eventually, in early April, entry permission was received and Monoar arrived in Singapore on 3 April 2021.
“I stay hotel quarantine four days,” Monoar told us.
“Why only four days?”
“I have recovered status,” he explained.
The health authorities must have detected antibodies in his blood through serology testing.
“After that, I go to new MOM dormitory in Punggol, stay four or five days.” We believe he was referring to a new onboarding centre that the Ministry of Manpower had set up to clear arriving workers. “Fingerprint also do there,” Monoar added, referring to the process of issuing him a work permit card.
He then moved again, to the company dorm. Finally, on 14 April, he started work.
About a week after starting work, the HR lady asked him to go to the company office at Tanjong Kling. There, she gave him two documents, insisting that he sign them.
As often is the case, Monoar was not given copies of the documents.
Without copies, we at TWC2 cannot see what exactly were in them. According to Monoar, the first document was a “bond” document, saying he would be bonded for two years. Monoar objected, saying it had not been mentioned in the prior negotiations in December 2020.
In any case, he pointed out that his work permit was only valid for one year.
TWC2 takes the view that any employer who presents documents to employees to sign, without giving them copies or the time to consider, is acting suspiciously. Even if a signature has been added to the document, courts should make no presumption about the validity of such “agreement” but should instead inquire into the circumstances surrounding the way the alleged “agreement” was obtained.
The second document was for him to agree to a salary deduction of $200 a month x 11 months. Total: $2,200. Again, this was never mentioned before.
Monoar saw something in the document about how the $2,200 would be returned to him if he completed the two-year bond. But this hardly mollified him. He pointed out that if MOM did not agree to renew the work permit at the end of the first year, he would technically not have served a full two years. What then would be the status of the so-called refund?
The $2,200 quantum is something that TWC2 has seen before. See the article Employers claw back cost of stay-home period from arriving workers.
By this point, Monoar was too suspicious of the employer’s motives and methods to agree to anything. “Company madam then say, ‘If you cannot agree, then we send you back’,” he added.
In short, the company demanded contract substitution, failing which they would penalise him by sacking him.
Monoar contacted MOM. From the way he described the conversation, both he and MOM might have understood the matter as a dispute over kickbacks — a term that means demands by employers for payments from employees.
Monoar recalled, “MOM lady ask me, ‘You have any evidence?’ and I say I not have because company not give me copies of the papers.”
“Then MOM lady say they cannot do anything.”
When the MOM lady asked Monoar if he had evidence, and he said no, it was unfortunate. It was fully understandable nonetheless, because the context put to him might have been for written proof.
In fact, Monoar did have evidence, although he himself didn’t realise this. The evidence would be his own oral testimony. Consider this: courts will weigh and consider what witnesses have to say when witnesses are called to the stand to “give evidence”.
So, why is MOM suggesting that only written evidence counts and disregarding oral testimony at MOM’s incident reporting stage?
If a person went to the police to say she had been robbed at knifepoint, should the police then ask, “Do you have any evidence that you were robbed?” If she said she handed over her purse when confronted with a knife, and had neither injuries, written evidence or videotapes showing the incident, would she be told that she would not be allowed to make a police report? Wouldn’t her own oral account of the incident be sufficient, in the absence of opposite information, to warrant the filing of a complaint and opening of an investigation?
One more thing: it is the job of investigators to search for evidence. Victims should not be tasked with doing their own investigation and digging up of evidence to present to the authorities on a platter.
At TWC2, our first reaction to Monoar telling us what the MOM lady asked him was: That’s the wrong question to ask. MOM should recognise the vulnerabilities that migrant workers face, and should not be asking for written proof. To do so is to sort-of-abet the common employer practice of not giving copies to workers in order to conceal their actions. See also our comment in the blue box.
What options for Monoar?
We went through with Monoar his options, though by then the work permit was already cancelled. We explained to him the possibility of filing a case of wrongful dismissal.
By definition, wrongful dismissal (or wrongful termination) is when employment is terminated by an employer without just cause. Obviously, termination as penalty for refusing to agree to contract subsitution cannot be a just cause.
Yet, paragraph 7 of the Tripartite Guidelines on Wrongful Dismissal also says that so long as the employer has given notice and paid up the last salary (including salary-in-lieu of notice, if applicable), the termination is presumed not to be wrongful. For most practical purposes, this eviscerates the law, putting a nearly impossible burden on employees to prove their case especially when documentation is under the control of employers.
Moreover, filing a case could mean a long wait in purgatory for Monoar, MOM’s processes being what they are. Additionally, he might not even get a chance to transfer to a new job since Lim Swee Say’s statement in parliament in 2017 referred to salary cases, and Josephine Teo’s words to Parliament does not appear to have been operationalised.
If MOM did not grant him a chance to seek a new job, then even if Monoar won a wrongful dismissal case, he would still be sent home — exactly what the employer wanted.
After listening carefully to us, Monoar decided to accept his fate. He went home on 29 April, less than four weeks after arriving here.
Go to Part 3: Commentary.