'Creative thinking' helps lawyer who fought and won High Court cases for migrant workers

SINGAPORE — He fought – and won – three recent landmark High Court cases involving foreign workers, even earning plaudits from at least one judge for meticulous work done.

While the achievement has largely flown under the radar of public attention, lawyer Melvin Chan Kah Keen's efforts have not gone unnoticed by migrant-worker advocates, who say his team at TSMP Law Corporation works pro bono cases the way it would approach fee-earning ones.

The most recent High Court case involved Bangladeshi Hasan Shofiqul. Mr Chan and his colleague Darren Tan Tho Eng successfully argued that the 33-year-old site supervisor was not employed in an executive or managerial position.

They dug up various records to show that Mr Hasan put in many more overtime hours and was entitled to much more overtime pay than what was computed by his former employer, China Civil (Singapore), and the Assistant Commissioner for Labour.

The judgment by Justice George Wei has since stirred a larger debate on whether some professionals, managers and executives are given inflated titles but shortchanged when it comes to overtime payments.

While the judgment, which highlighted Mr Chan's and Mr Tan's "detailed submissions", came out in May, the duo's work began in 2016.

Besides devoting long hours to the case, they had to apply some "creative thinking". To make up for the lack of proper employment records kept by the employer, the lawyers tracked down two workers Mr Hasan previously supervised and pored through their timesheets to compute the amount of overtime pay he was owed.

"Hasan kept his own records but they were not signed. So we had to be creative in using secondary sources... Some of his former colleagues were initially reluctant to testify against their employer but we managed to convince two to let us go through their timecards and agree to sign affidavits in support of the claims," said Mr Chan, 45, who is TSMP's head of litigation and dispute resolution.

And although the High Court case has concluded, their work continues. The matter is now back with the Assistant Commissioner for Labour, who has been tasked to re-calculate Mr Hasan's claim.

As legal representation is not allowed in the Labour Court, the lawyers have been working with non-governmental organisation (NGO) Transient Workers Count Too (TWC2) to help Mr Hasan prepare his case so that he will not be disadvantaged.

Former lawyer and TWC2 volunteer Choo Wai Hong said Mr Chan is one of six or seven lawyers that the group taps to support foreign workers.

"It is always a challenge to find lawyers, often at short notice, but Melvin is always willing to take on cases and his teams argue them capably," said Ms Choo.

"They work (pro bono cases) like a real case. We have ever gone to his office and gotten affidavits signed at 8.30pm on a Sunday night," she said.

Mr Chan said migrant workers were a group TSMP set out to help, because they receive less institutional support and often lack knowledge of their rights.

"It's an often overlooked and under-served cause because they are not immediately perceived to be weak or vulnerable... The firm had already given talks to foreign workers on their basic legal rights. Then we realised this community has urgent need for legal representation in specific areas, so it was a natural fit for us to channel our pro bono efforts to them," Mr Chan told TODAY.

In another landmark case, Mr Chan represented Chinese worker Liu Huaixi, who worked for department store company Haniffa. High Court judge Lee Seiu Kin ruled last year that foreign workers should be paid salaries stated in their in-principle approval letters, in the absence of any other written agreement by both worker and employer. Haniffa had to pay Mr Liu S$6,500 in owed salary and payment in lieu of notice. In-principle approvals are letters which employers receive from the Ministry of Manpower after their work permit applications are approved, and must send to workers before they fly to Singapore.

For a case involving another Bangladeshi worker Islam Md Ohidul in 2016, Mr Chan successfully argued that costs could still be paid in cases where lawyers act pro bono.

Mr Chan said TSMP promotes pro bono work among its lawyers through an internal benchmark of 20 pro bono hours per year, which most exceed. The firm has sought to "institutionalise" a pro bono culture amongst its lawyers so that those who do more pro bono work would not fear losing out to their peers, he said.

'SMALL WINDOW TO GET EVIDENCE'

Cases involving foreign workers are unlike others, and it is rare for them to be fought all the way to the High Court, said lawyers.

Besides language barriers, the workers may no longer be in Singapore, said Mr Chan.

"By the time a salary dispute gets brought to the court, the worker has typically either quit or been terminated by the employer. Once they are sent back, it is a challenge to continue communications with them. We have a very small window, when the worker is still in Singapore, of one to two weeks to get all the evidence in order," he said.

The lawyers work closely with NGOs and their pool of volunteer interpreters.

Mr Anil N Balchandani, a partner at I.R.B. Law who has also defended foreign workers pro bono, cited the challenge of providing for the workers' practical needs, including shelter, employment and medical help.

"Most do not know their rights and are fearful, economically stranded, and threatened with repatriation. Or they may just be mentally and physically exhausted," said Mr Anil.

When their practical needs are not attended to, some workers involved in criminal cases prefer to "plead guilty out of convenience so as to return home quicker", he said. Those alleged to have committed these offences are typically detained until they plead guilty or go to trial.

Mr Anil, who devotes 20 per cent of his practice to pro bono work, said his aim is to provide access to justice to a group that makes up one-fifth of Singapore's population.

"Without proper legal, political and union representation, the migrant worker cause will remain inaudible," he said.

One migrant worker he successfully defended is Chinese bus driver Zhang Kun, who was accused of a rash act while driving a public bus. Mr Zhang was acquitted last year after a district judge ruled that the prosecution had not proven its case beyond reasonable doubt.

Ms June Lim, founder and managing director of Eden Law Corporation, said the lack of financial incentives is the most common reason why lawyers may not take up cases involving foreign workers.

"You must remember that law firms are private entities run like businesses. For those of us who do pro bono work, we want to do the right thing," said the 32-year-old.

Focusing solely on cases involving migrant workers is not financially sustainable, Ms Lim said.

Asked how he and his colleagues typically celebrate their court victories, Mr Chan said: "We usually just send an email to congratulate each other. But Mr Liu did invite us for a small celebratory dinner last year."

He added: "Foreign workers sometimes fall through the gap because they are not Singapore citizens. I think lawyers should, wherever possible, focus on areas where there is not so much institutional support."