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.
S 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 Website
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