Ragav (name changed), a migrant worker from India, was fed up after being short-paid for all the ten months he had worked for the employer which we will call Esben Engineering. He was owed over $8,600.
Knowing that just about every worker who files a salary claim will get the sack, he had little hope of hanging to the job should he choose to make a formal complaint. He resigned without giving notice in early May 2024, immediately going to the Ministry of Manpower (MOM) to lodge a formal salary claim. Not long after, he came to TWC2 for help in organising his case.
At the first mediation meeting on 3 June 2024 set up by TADM, the unit at MOM that handles salary claims, the representative of Esben Engineering pointed to a clause in the employment contract that Ragav had previously signed. The clause stated that if the employee should resign, the applicable notice period would be six months. Consequently, argued the company, Ragav owed them six months’ salary in lieu of notice. His salary being $1,500 per month, this would amount to $9,000, a sum greater than the salary short-payment Ragav was claiming for.
Ragav reeled in shock.
Two fronts
This battle to be fought therefore had two main fronts. The first was the salary claim, mainly for overtime and working on a rest day, amounting to a total of about $8,600. The second was to defend against the employer’s counterclaim for salary in lieu of notice ($9,000). Ragav could not afford to win one while losing the other, for he would then be worse off, especially considering that just to fight a case must mean several months of unemployment.
The process for dealing with an employment dispute has two stages. The first is the mediation stage, with TADM setting up meetings between employer and employee to see if an amicable settlement can be reached. However, with Esben Engineering holding fast to its position that Ragav was liable for salary in lieu of notice, a position that meant that it would not concede on the salary claim alone, no settlement was possible at the mediation talks. The case therefore had to be moved to the second stage, the Employment Claims Tribunal, for adjudication.
The employer delivered on their threat to force the issue, filing a Tribunal counterclaim for notice pay, though they filed for $3,800 rather than the full $9,000. According to Ragav’s recollection, it was the TADM mediator who had advised the employer to show leniency and refrain from claiming the full notice pay, but we’re not clear why the mediator did this. Nonetheless, the issue before the Tribunal was two-fold: the question of salary and that of notice pay.
At the Tribunal
Hearings at the Tribunal were held in November 2024. TWC2 helped Ragav prepare his calculations and witness statements. We also unearthed an earlier High Court ruling that would be helpful as case law.
A small part of Ragav’s lengthy time record maintained by the company.
There was not much that was unusual or groundbreaking in the salary side of Ragav’s case. Esben Engineering maintained time records based on electronic “scanning” of arrival and departure at the worksite, and Ragav’s claim calculations were based on these. Faced with these data-based calculations, the company’s defence rested on two main arguments: Firstly, it alleged that Ragav, their safety supervisor, somehow manipulated the scanned time records to his advantage – but offered no substantiation for such an allegation. Secondly, it argued that even if the electronic records were correct – and the company conceded before the magistrate that the electronic timekeeping system had no technical issues – the company was only liable to pay for overtime, etc, at rates stated in the employment contract.
Ragav however argued that the rates stated in an employment contract were contrary to the minimum rates of overtime or rest day pay detailed in legislation and thus the latter must apply. This is well-established law. The employment contract’s lower rates were therefore unenforceable and irrelevant.
Below we show the rates stated in the employment contract with our comments as to what the minimum rates ought to be under law.
A part of the employment contract showing how it tried to set rates of pay for overtime and rest day work lower than rates required by law
The Tribunal found for Ragav on this matter of owed salary and ordered Esben Engineering to pay him $8,642.84. It was virtually the full amount as claimed, though there was a minor adjustment over the question of when Ragav’s last day of work was.
That left the other issue of notice pay. Even though the employer was only claiming $3,800 instead of $9,000, it would bite off nearly half of what Ragav had won by way of the salary claim should the employer be successful in this course of action. The clause specifiying a six-month notice period was clearly there in the employment contract. However, when TWC2 scrutinised it, we noticed that the contract had a major flaw, and it was one that Ragav could exploit.
But would the arguments and points of law TWC2 could come up with carry the day? The good thing is that Tribunal hearings rely extensively on written submissions rather than oral arguments. We could help Ragav write up his case clearly before the hearing date. But at the hearing itself, he would have to represent himself as the Employment Claims Tribunal does not allow either party to be represented by counsel; TWC2 could not be present either. Should the magistrate throw any question at him, would he be able to make the same arguments verbally without confusing or undermining his own case?
Story continues in Part 2.
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