Thursday, August 15, 2013

Shocker in Migrant Worker court case: Evidence with ‘blanco’

Observers in court were stunned when an employer in a labour dispute with a migrant worker produced evidence with liquid paper marks on it. Rani Rasiah reports. 

  On 29 July 2013, the hearing continued in the Aye Cho versus New Zonic Enterprise labour case

Somahsundram of MTUC appeared for the worker and Yang Berhormat Thomas Su, lawyer and MP for Ipoh Timur, represented the boss. Aye Cho had filed a case in early 2012 at the Labour Department in Ipoh against his employer for non-payment of overtime work, denial of annual leave and unlawful levy deductions. He and four other Myanmar workers had tried to raise these with the employer, who responded by sacking two of them on the spot. On the 29th morning, Chan Lark Sye, the employer, his face expressionless as usual, sat in the dock. It was Soma’s turn to cross-examine him.

  Soma: How many days of annual leave did Aye Cho take in 2011?

Aye Cho had complained that he had been denied annual leave (AL) for his entire four and a half years of employment at New Zonic Enterprise, a printing company.

  Boss: 14 days.

At an earlier hearing, Thomas Su had tendered photocopies of the clock cards for 2011 as exhibits to show that the company had indeed granted Aye Cho annual leave. Fourteen dates had been mentioned as Aye Cho’s annual leave days in 2011, and these had been shown by Su to correspond with 14 blanks on the clock card copies. For the 29th hearing, the original clock cards for 2011 were produced.

  Soma: (referring to the original clock cards for 2011):

 Why has ‘blanco’ (liquid paper) been used for 16 and 17 April 2011?

Boss: I think, some other worker mistakenly punched the card.

Soma: What about 25 April 2011? Has blanco been used?

Boss: Yes. Soma: Why? Boss: I think same reason as on 16 and 17 April.

Soma: June 2011, 11 and 12 June. 

Was blanco used?

  Boss: Yes.

Soma continued in the same manner, for the remainder of the 14 days, including 1 September 2011, where there were ink marks as well over the blanco. Fourteen days of annual leave appeared to have been created on paper by blanking out machine print marks with liquid paper.

 What a bold piece, I thought, of the employer to coolly produce such evidence before the court. No register of records of annual leave etc was produced to back up his claim. Also, the cards had apparently been tampered to reflect two and a half hours less overtime every day to justify paying two and a half hours less than the actual overtime hours worked.

 How should the various actors in this hearing react when faced with such evidence? We leave it to the wisdom of the court to decide. Seeking justice in this instance is a desperate migrant worker, unexpectedly dismissed and unable to return home empty-handed to his family of six young children, wife and aged mother.

With our help, Aye Cho had filed complaints in March 2012 at the labour department for monetary claims and the industrial relations department for reinstatement. The boss went on to unilaterally cancel his work permit, making the worker illegal and exposed to all the risks entailed. It took five months before the cases were heard at the labour and industrial courts.

During this entire period, Aye Cho remained ‘illegal’ not because he was naturally inclined to flout rules, but because the Immigration Department refused to entertain his application for a pass to remain in the country. Their stand was that the dismissed worker should return to his home country and come back after the court dates were fixed.

Clearly, the Immigration Department did not recognise the right to redress provided by the Employment Act, and was free to invalidate it. Once court dates were given, Immigration issued the Special Pass for Aye Cho. It was not the end of his woes though. The Special Pass is issued at a charge of RM100 for a maximum of 30 days each time, and generally it is renewable only for three months.

 The worst and most cruel thing about the Special Pass for people like Aye Cho is that it forbids the holder from working. The pass holder can remain in the country to attend court hearings but he is not allowed to earn. But there are essential expenses to meet – upkeep, legal fees and interpreter charges.

In essence then, the sacked migrant worker has no choice but to return home without his grouses being heard and dealt with. Malaysian laws related to redress belong to the era of slavery and all migrant workers are potential victims. Aye Cho is already victimised by such bad immigration policies. He shouldn’t be doubly victimised by evidence with blanco.

 - ALIRAN

There are hundreds of Burmese Migrants and Refugees have not been  paid by their employers even though they have to work for more than 12 hours a day. A lot of Migrants and Refugees have experienced but there has been no complains about it. This guy is what a hero!. We believe that he is doing the right job for every Migrant working in Malaysia. It is obvious that most of the benefits have been taken away from workers by Job Agencies and the Employers. I used to have to work for a restaurant in Malaysia for 17 hours a day but I was denied to pay off my Over Times. This is not only Aye Cho experienced but a lot of Migrants in Malaysia having the same problems.

- Myanmar Migrants and Refugees Network