26 Burmese Migrants suddenly terminated ....will they get justice?

Migrant workers, especially, come to Malaysia to work after being promised employment for a certain number of years, usually 3 or more years.

And to get to Malaysia, migrants end up paying a lot of money to agents, government officials, etc - and most migrants end up debt, even before they leave their home country to come to Malaysia to work. 

When they come to Malaysia, their work permits/passes are restricted  to that particular employer. These workers have no choice. They just have to work for that particular employer - and no one else. [Of course, the Director General of Immigration have the authority to vary the permit/pass of the workers, and allow them to work with some other employer. This was done in the case of Rajakannu Boopathy & 30 something other  Indian Migrant workers - but it required the migrants to take the DG and the Government of Malaysia to court before the DG voluntarily agreed to allow these workers permits/visas to be varied to permit them to work for another employer.]

Hence,  employers of migrant workers must fulfill their obligations and provide work and wages for the duration of the agreed period of employment. 

The law provides for worker rights. When rights are violated, then the law says that the worker can/must go to the Labour Department and lodge a complaint. And when they do so, employers cannot (or should not) penalize workers by immediately terminating them. This is very wrong, and the law must impose a minimum penalty on employers who do this, say 12 months basic wages of the affected worker.

A worker can be terminated for misconduct, etc - but before there can be a termination, there is a requirement that there be a domestic inquiry, whereby the worker will have his/her right to be heard. 

A sudden termination without a domestic inquiry will generally be a wrongful dismissal, and the worker has a right to complain about this to the Industrial Relations Department(IRD), and demand for reinstatement - but the complaint must be made within 60 days...see s.20 Industrial Relations Act 1967, which states as follows:-

(1) Where a workman, irrespective of whether he is a member of a trade union of workmen or otherwise, considers that he has been dismissed without just cause or excuse by his employer he may make representations in writing to the Director General to be reinstated in his former employment; the representations may be filed at the office of the Director General nearest to the place of employment from which the workman was dismissed.

(1A) The Director General shall not entertain any representations under subsection (1) unless such representations are filed within sixty days of the dismissal:

Provided that where a workman is dismissed with notice he may file a representation at any time during the period of such notice but not later than sixty days from the expiry thereof.

(2) Upon receipt of the representations the Director General shall take such steps as he may consider necessary or expedient so that an expeditious settlement thereof is arrived at; where the Director General is satisfied that there is no likelihood of the representations being settled, he shall notify the Minister accordingly.

(3) Upon receiving the notification of the Director General under subsection (2), the Minister may, if he thinks fit, refer the representations to the Court for an award.

The process is long - for if the employer refuses to reinstate the worker, then the matter is referred to the Minister, who then may refer the matter to the Industrial Court - then the the trial and then the decision. It really is a very unfair process for migrant workers - unless the law changes, and wrongfully dismissed workers be given the opportunity to live and work legally while claim is processed, heard and finally determined.

The other more common option is to go to the Labour Department, and claim for your unpaid salaries, overtime, unlawful deductions, termination payments, etc - But, what happen when work permits/passes expire.... The government must renew permits/visas to allow the workers to stay in the country until the dispute is determined by the Labour Department(Labour Courts). If the worker is not present for the appointment, trial at the Labour Court, the claim will be dismissed and the workers will not get justice...

Of course, the Malaysian government is more concerned about getting cheap labour in, exploiting them, and getting them out of the country when their permits/passes expire. The government of Malaysia has not demonstrated that they are concerned about the workers and their rights...If they are, the process for workers to get their rights need to be expedited, and workers, in particular migrant workers, be allowed to be present in the country (with right to work) until their labour cases are determined by the court, and they have received what the court awarded.

KUALA LUMPUR: In Myanmar, US$850 (about RM2,900) is enough to sustain a person comfortably for a year,  and that's what Zar Ni Swe from Yangon paid to an agent to get a job as a waitress in a restaurant in Malaysia.

But on Feb 15, the second day of the Chinese New Year, Ni Swe, along with 25 other Myanmar waiters and waitresses at Jogoya Restaurant in Kuala Lumpur, were given a week's notice that their services were no longer required.

This heart-breaking news was conveyed to them in a memo which gave no reason nor was it signed.

On top of that, the memo had more bad news — the first part dealt with Myanmar waiters who had savings, and the second part for those who didn't have money.

In the case of Ni Swe, she was asked to pay a RM450 levy to the restaurant, also a month's salary of RM150 as compensation for her "previous mistakes" (no matter whether she was at fault or not) and also immigration costs of RM150. 

Those with no savings were told to work for another company until they paid their dues to get their passports back.

Ni Swe, who worked for almost four years, had the courage to ask the restaurant management why she and her countrymen and women were given a week's notice when it should have been a three months'. No satisfactory answer was given.

Allegedly too, the restaurant had not paid their February salary.

What followed were frantic attempts to seek help from their agents in Myanmar ("We cannot help") and Malaysia ("We can't help too"), embassy of Myanmar ("Call your agents"), the Human Rights Commission of Malaysia or Suhakam ("Wait for labour office to investigate"), police ("Call your agents") and the Federal Territory Labour Department ("Give us some time to investigate").

The hostel where Ni Swe and another 69 Myanmars were staying were also in deplorable condition.

The hostel is a four-storey building at Jalan Changkat Thamby Dollah. The restaurant and storeroom are on the first floor, the male Myanmar workers live on the second floor and the females live on the third floor.

With so many cramped inside each living room, the air is stuffy. With limited number of fans, the environment is perpetually hot, humid and uncomfortable and it's hard to imagine how anyone can have a peace of mind under such conditions.

The staircase is cluttered with personal stuff that could not be accommodated in their living space. The walls of the staircase are also stained by urine.

Each worker is provided a thin mattress and they sleep on double-deckers. - Malay Mail, 15/3/2010, Myanmar workers laid off without notice