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Court of Appeal declares undocumented workers have right to seek redress at Labour Court – Tenaganita

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The Court of Appeal on 12 May unanimously upheld the decision of the Shah Alam High Court that had previously ruled that an undocumented worker has the right to have her case heard by the Labour Court.

On 29 July 2019, the then Shah Alam High Court judge Azizah Nawawi ruled that the Labour Court must hear an undocumented worker’s case to claim over RM30,000 in unpaid wages. Nona* (not her real name) had appealed against a Port Klang Labour Court decision in August 2018 to dismiss her claim filed against her previous employer, named as Angie Lee. The employer then appealed to the Court of Appeal, seeking to overturn the High Court ruling.

In delivering the decision of the Court of Appeal, Ravinthran JCA said there is nothing in the Employment Act 1955 and in the Employment (Restriction) Act 1968 which prevents a worker from approaching the Labour Court to seek redress. The Labour Court should not shut its doors against an undocumented worker without allowing her to ventilate her grievances. He 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.

VK Raj of P Kuppusamy & Co, who had been acting pro bono for Nona since 2018, together with Devi Sangaran, said that “the Labour Department cannot abandon jurisdiction by refusing to hear the claims of unpaid wages by undocumented foreign workers”.

VK Raj was assisted by Anand Raj and Abhilaas Subramaniam of Shearn Delmore. He added that “the decision of the Court of Appeal reaffirms the principle of law that honest work by honest undocumented foreign workers still deserves honest wages”.

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“We are glad that we persisted in our efforts to obtain justice for Nona because this decision provides much-needed support for our efforts to ensure that undocumented workers are not exploited,” said Joseph Paul Maliamauv, who has been Nona’s case worker since 2017

In applauding the decision of the Court of Appeal, Glorene Das, executive director of migrant rights group Tenaganita said that the decision marked a significant step forward in ensuring that marginalised groups such as undocumented migrant workers are able to access justice though the Labour Department, which has 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 … are in fact victims of the willful negligence of employers, or scams by labour agents, often aided and abetted by corrupt officials,” Glorene Das said.

Nona had sought assistance from Tenaganita in mid-2017 after fleeing from her exploitative employer of four-and-a-half years. At an earlier hearing at the High Court, Nona was quoted as saying: “I cleaned the employer’s house for almost five years, took care of his children and his dog and also worked long hours in his shop. All I want is my wages that I have worked for, so that I can go home to my family.”

The ruling by the Court of Appeal, in effect, puts Nona back in the same position that she was in when she first filed the case with the Labour Department in October 2017. Nevertheless, she is happy that, although it had taken more than four years, the decision of the Court of Appeal would open the doors of justice to hundreds, if not thousands, of exploited workers like her.

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Tenaganita hopes that with this ruling of the Court of Appeal, the Labour Department will now have an unequivocal mandate to overcome any devious attempts to use the Immigration Act to override basic human rights.

Glorene A Das is executive director of migrant rights group Tenaganita

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