Appeals court rules undocumented worker can take case to Labour Court in Malaysia
May 13, 2022
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It’s shocking this only just happened, but not surprising that Malaysian justice wouldn’t recognise the rights of irregular workers before this. Now the next challenge is strengthening the rule of law and overcoming impunity to enforce this decision, a much harder task
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In an appeal involving an undocumented worker’s claim for her unpaid wages, the Court of Appeal has upheld the High Court’s landmark decision that a worker’s immigration status should not deter the Labour Court from hearing their case.
Tenaganita executive director Glorene Das said in a statement that the decision marked a significant step forward in ensuring that marginalised groups such as undocumented migrant workers can access justice through the Labour Department.
She said Tenaganita hopes that the Labour Department will now have an unequivocal mandate to overcome any devious attempts to use the Immigration Act to override the basic human rights of undocumented workers.
In the above case, domestic worker Nona (not her real name), has been trying to claim her four-and-a-half year’s unpaid wages amounting to RM30,000 since she fled her exploitative employer’s residence in 2017.
Malaysiakini has been following the young woman’s case and reported that she was promised a monthly salary of RM550 when she arrived in 2013 but never saw a single sen.
Nona went home empty-handed.
Nona, who is from Kupang, East Nusa Tenggara, had been living in Tenagaita’s shelter until last year when she finally returned home empty-handed.
However, her perseverance has paid off, with her case setting a precedent for the labour courts to follow.
Glorene said although the Court of Appeal ruling would open the doors of justice to hundreds if not thousands of exploited workers like Nona, it also placed Nona back in the same position she was in when she first filed the case with the labour department in October 2017.
‘We are preparing to refile Nona’s claim for unpaid wages at the Labour Department.
“Nona won’t have to return to Malaysia for the case as we will be using zoom,” said Glorene, who was happy with the outcome after spending more than four years on the case in the civil courts.
Tenaganita executive director Glorene Das
Glorene said Nona had described during High Court proceedings how for almost five years she had worked long hours cleaning the employer’s house, taking care of his children and his dog, and working at his shop.
Nona had testified, “all I want is the wages that I have worked for so that I can go home to my family.”
Labour Court should open doors to undocumented workers
Glorene said the Labour Department had a fiduciary duty to uphold the rights of all workers, irrespective of their immigration status.
“It is a well-known fact that the vast majority of migrant workers in Malaysia who are victims of the wilful negligence of employers, or scams by labour agents, were often aided and abetted by corrupt officials,” said Glorene.
Her statement highlighted that Court of Appeal judge Ravinthran N Paramaguru saw nothing in the Employment Act 1955 or in the Employment (Restriction) Act 1968 that prevented a worker from seeking redress at the Labour Court.
“The Labour Court should not shut its doors against undocumented workers without allowing them to ventilate their grievances,” he was quoted.
Judge Paramaguru had agreed with the decision of the High Court that the Labour Court had acted prematurely in dismissing Nona’s claims on the grounds that it does not have jurisdiction to hear a claim brought by an undocumented worker, her statement read.
Meanwhile, Glorene said that VK Raj of P Kuppusamy & Co, who had been acting pro bono for Nona since 2018, together with Devi Sangaran had stated that the Labour Department cannot abandon its jurisdiction by refusing to hear the claims for unpaid wages by undocumented foreign workers.
VK Raj was assisted by Anand Raj and Abhilaas Subramaniam of Shearn Delamore & Co.
“The decision of the Court of Appeal reaffirms the principle of law that honest work by honest undocumented foreign workers still deserves honest wages”, Raj had stated.
Joseph Paul Maliamauv, who has been Nona’s caseworker since 2017 said they were glad to have persisted in their efforts to obtain justice for her.
“This decision has provided the much-needed support for our efforts to ensure that undocumented workers are not exploited,” he was quoted.